Western Union Telegraph Co. v. Collins

• Decision Date: 06 December 1890
• Citation: 25 P. 187,45 Kan. 88
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. IRA F. COLLINS et al
• Court: Kansas Supreme Court

25 P. 187

45 Kan. 88

THE WESTERN UNION TELEGRAPH COMPANY v. IRA F. COLLINS et al

Supreme Court of Kansas

December 6, 1890

Error from Atchison District Court.

THE facts are fully stated in the opinion.

Motion overruled.

Waggener Martin & Orr, for plaintiff in error.

J. F Thompson, and Smith & Solomon, for defendants in error.

STRANG C. HORTON, C. J., VALENTINE, J., concurring. JOHNSTON, J.

OPINION

STRANG, C.:

Action for damages for failing to deliver a certain telegraphic message. The facts are as follows:

The plaintiff in error was a telegraph company, doing business between St. Joseph, Missouri, and Sabetha, Kansas. The defendants in error were partners, doing business at the latter place, and engaged in shipping hogs. They had purchased of the farmers in the neighborhood of Sabetha a lot of hogs, which they designed shipping to market, either at St. Joseph or Kansas City. The hogs were to be delivered at Sabetha, by the farmers, on the 12th of January, 1885. Prior to that date the defendants had employed one E. P. Roher, a livestock commission merchant, or broker, at St. Joseph, to send them a dispatch from that point on the 12th, informing them of the condition of the hog market at that place on that day. Roher delivered a message containing the desired information, addressed to the defendants at Sabetha, to the plaintiff company at its office in St. Joseph, in time to have reached the defendants so that they might have shipped their hogs to St. Joseph. But the message was never transmitted, or, at least, never delivered to the defendants, although they called for it at the company's office at Sabetha four times on that day. Not hearing from Roher, and supposing on that account that the market was not good at that point, the defendants shipped their hogs to Kansas City, where they were sold at an average price of $ 4.20 per hundred. Subsequently the defendants learned that if they had shipped to St. Joseph on that day they would have received $ 4.30 per hundred for their hogs, and saved the freight from St. Joseph to Kansas City; and that, therefore, they had suffered a loss of ten cents per hundred on the gross weight of their hogs, and the difference in freight between St. Joseph and Kansas City, aggregating $ 225. Defendants in error claim that this loss was suffered by them because of the negligence of the plaintiff in error, in failing to transmit and deliver to them at Sabetha the message delivered to it by Roher at St. Joseph. The plaintiff in error denied negligence on the part of the company, and alleged negligence on the part of the defendants in error; which they, in turn, denied in their reply. A change of venue was taken, and the case sent from Nemaha county to Atchison county, where on the 19th day of March, 1888, it was tried by the court without a jury. The court made findings of fact and of law, and entered judgment thereon in favor of the defendants in error for $222.90. The plaintiff in error filed a motion for new trial, which was overruled, and it now comes here with its case-made, alleging numerous errors on the part of the court trying the cause, and asks that the case be reversed.

The first error discussed by the plaintiff in error in its brief, is the action of the court in overruling a motion to suppress a deposition. The grounds of the motion are: First, the deposition has not been duly certified as provided by law; second, the witnesses were not sworn according to law; third, the deposition was not taken, sealed up, and authenticated as provided by law.

We regard the second ground stated in the motion for the suppression of the deposition as a mere elaboration of the first, serving to point out the specific reason why the deposition is not properly certified. We will therefore treat these two grounds as constituting but one reason why the deposition ought to have been suppressed. This question involves a construction of our statute on this subject. Paragraph 4454, General Statutes of 1889, reads as follows:

"The officer taking the deposition shall annex thereto a certificate showing the following facts: That the witness was first sworn to testify the truth, the whole truth, and nothing but the truth; that the deposition was reduced to writing by some proper person, naming him; that the deposition was written and subscribed in the presence of the officer certifying thereto; that the deposition was taken at the time and place specified in the notice."

This is all the paragraph there is in our statutes relating to the character of' the certificate to be annexed to a deposition by the officer taking the same. It will be seen by an examination of this paragraph, that the language of the statute is, that the certificate attached to the deposition by the officer taking it must show "that the witness was first sworn to testify the truth, the whole truth, and nothing but the truth." The language of the certificate attached to the deposition in this case is, that the witnesses "were by me sworn to testify the whole truth of their knowledge touching the matter in controversy aforesaid." It is conceded that the certificate attached to the deposition by the officer taking the same must conform substantially to the requirements of the statute. The question on this assignment, then, is, Are the words in the certificate, "sworn to testify the whole truth," substantially the same as the words "sworn to testify the truth, the whole truth, and nothing but the truth," contained in the statute? Our first inclination upon examining this case was, to say that, while the language of the certificate is not identical with that of the statute, it is substantially the same. But a more careful and analytical examination of the language of the statute satisfies us that it imports something more than the language of the certificate. To be sworn to testify the truth, the whole truth, and nothing but the truth, imposes upon the witness an obligation that is not imposed upon him when sworn to testify the whole truth. A witness under examination, being asked if he could tell any more, in response said: "Yes, I could tell a good deal more, but that is all I know." It seems to us that this question and answer illustrate this case. What is there to prevent a witness who has already told all he knows --that is, the whole truth--from telling more that he does not know, that is, more that is not the truth? The statutory form requires him to tell nothing but the truth, while the form of the certificate does not obligate him to cease when he has told the whole truth. We therefore think the certificate in the deposition is insufficient. The authorities sustain this view of the case. In those states having statutes which prescribe the form of the certificate to be annexed thereto by an officer taking a deposition, the great weight of authority requires a strict conformity to the statutory requirements. In the states which have no statute prescribing a form for the certificate, and in which depositions are taken under a commission, or rule of court, greater laxity prevails in relation to the mode of taking and certifying them. In Bacon v. Bacon, 33 Wis. 147, the court says: "Where the statutes prescribe a form of oath to be administered to a witness whose deposition is taken out of the state, that form must be observed, or the deposition will be suppressed."

In Baxter v. Payne, 1 Pin. 504, Judge Miller, delivering the opinion, says:

"The deposition of William Pyncheon was offered in evidence, which was objected to by the defendant, for the reason that the justice does not certify how the oath was administered to the witness. The authority to take testimony in this manner, being in derogation of the rules of the common law, has always been construed strictly; and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible. Before a deposition should be allowed to be read in evidence, every requisite of the statute must have been substantially and fully complied with. This deposition was taken at the instance of the plaintiff, for the reason that the witness resided more than thirty miles from the place of trial, in pursuance of a written agreement between the parties, and in their presence. In the commencement and body of the deposition, it is stated that the witness 'being duly sworn doth depose and say as follows:' The certificate of the justice sets forth that the witness 'was first sworn in the usual manner of taking depositions.' The statute requires that the deponent shall be sworn to testify the truth, the whole truth, and nothing but the truth. There was error in overruling the objection to the reading of this deposition."

In Goodhue v. Grant, 1 id. 556, the same court says:

"A deposition cannot be read in evidence unless it plainly and satisfactorily appears from the certificate of the justice that all the requirements of the statute have been fully complied with, and no presumption will be indulged in to supply any defect."

In pointing out what the certificate must show, the court says:

"It must also state, according to §§ 14 and 16 of the same act, that the deponent was sworn to testify the truth, the whole truth, and nothing but the truth. The legislature intended that every part or requisition of the rule should be equally important and binding; consequently the court cannot relax or change it."

In House v. Elliott, 6 Ohio St. 497, the objection to the deposition was that the certificate annexed to the deposition did not show that the witness was first sworn. The court says: "This is a compliance with the form prescribed in Swan's Statutes of 1841, but does not meet the requirement of the code. There must be a...