Wise v. The Western Union Telegraph Co.

• Decision Date: 26 April 1934
• Citation: 172 A. 757,36 Del. 155
• Court: Delaware Superior Court
• Parties: WILLIAM ARTHUR WISE v. THE WESTERN UNION TELEGRAPH COMPANY, a corporation of New York

172 A. 757

36 Del. 155

WILLIAM ARTHUR WISE v. THE WESTERN UNION TELEGRAPH COMPANY, a corporation of New York

Superior Court of Delaware, New Castle County

April 26, 1934

Superior Court for New Castle County, No. 34, November Term 1932.

Demurrer to declaration.

The declaration alleged in substance that the plaintiff was engaged in the business of selling certain information on horse races; that in the course of his business he had many clients in Pottstown, Pennsylvania; that the defendant was engaged in the business of carrying and transmitting messages and had an office in Pottstown, Pennsylvania, wherein was employed an agent named Boyer; that the plaintiff had a customer in Pottstown, named Sasher; that the plaintiff was accustomed to send telegrams to his clients and particularly Sasher, advising them of the entries and past performances of horses at race tracks and of the probable outcome of certain races; and that these telegrams were sent under the trade name of "Watchman."

That on or about July 23, 1932, Boyer, the agent of the defendant forged the name "Watchman" to a telegram addressed to Sasher and delivered it to Sasher; that the forged telegram read:

"Ringer goes today at Arlington; send ten dollars for name of ringer."

The declaration then set out that the word "ringer" in the purported telegram meant a horse of ability and past performance, superior to the class in which he was entered at a horse race, and running under a fictitious name or with his natural color or markings so disguised as to conceal his identity.

It then alleged that acting on the strength of the forged telegram Sasher gave said money to Boyer to be transmitted to the plaintiff and that Boyer did not transmit the money to the plaintiff, but, on the contrary, kept and retained it.

The name of the ringer was never forwarded due to the fact that the money was never transmitted to the plaintiff who was unaware of the issuance of the forged telegram.

Thereafter Sasher exhibited the telegram to many of the plaintiff's customers in Pottstown and informed them that the plaintiff had failed to reveal the name of the ringer, acknowledge the telegram or return the money.

The declaration then charged that as a result of these facts the plaintiff was greatly damaged in his reputation and good name and business in and about Pottstown and sought to recover damages from the defendant, the employer of Boyer.

To this declaration a general demurrer was filed.

The demurrer is overruled.

James R. Morford (of Marvel, Morford, Ward and Logan) for plaintiff.

William S. Potter (of Ward and Gray) for defendant.

RODNEY J., sitting.

OPINION

RODNEY, J.

It is conceded that this case is one of first impression and there is some suggestion in the briefs that the acknowledged novelty of the action may be a limitation upon the right to maintain it.

I am of the opinion that the correct answer to the suggestion lies in a determination of whether the term "novelty" applies to the legal principle forming the basis of the action or whether the legal basis being recognized, the "novelty" has application merely to the method by which the principle is enforced. If there be no known legal principle upon which an action can be based, a Law Court may be powerless to grant relief without legislative intervention, but the basic right of action being established, the law does not allow the remedy to fail even though the established principle must be applied to new situations. Novelty of application is no reason to deny relief. Kujek v. Goldman, 150 N.Y. 176, 44 N.E. 773, 34 L.R.A. 156, 55 Am. St. Rep. 670; Habeeb v. Daas, 111 Misc. 437, 181 N.Y.S. 392; Harris v. Nashville Trust Co., 128 Tenn. 573, 162 S.W. 584, 49 L.R.A. (N. S.) 897, Ann. Cas. 1914C, 885; Harrison v. Berkley, 32 S.C. L. 525, 1 Strob. (S. C.) 525, 47 Am. Dec. 578.

This was, substantially, the origin of the action of Trespass on the Case. It would, of course, be a vain and presumptuous task for me to attempt to add to the legal learning concerning the development of the Action of Case. It is sufficient to observe that it has kept legal remedies measurably abreast with expanding views of legal rights and forms the great residuary remedy in the field of Tort as Indebitatus Assumpsit does in the field of Contract. 3 Street, Foundations of Legal Liability, 246. Case lies to recover damage incurred by reason of any act done or permitted or omitted to be done contrary to the obligation of the law. Comyn says:

"In all cases where a man has a temporal loss or damage by the wrong of another he may have an action upon the Case to be repaired in damages."

Succinctly, therefore, where there exists a legal right on one side and a legal wrong on the other, accompanied by damage, the action of Case will furnish a remedy where no specific remedy exists.

With these general observations I may approach the facts of the particular case.

The discovery and development of the scientific principles upon which the telegram is based brought in its wake many new legal problems involving the relationship and liability of the transmitting company to the sender and addressee of the telegram and, as to some of these, and especially the liability to the addressee, the legal thought of England and America radically differs.

Avoiding these questions, as not here involved, we pass directly to the liability of the company in cases of false, forged or fraudulent telegrams. A consideration of these situations naturally divides into two classes depending on the originator of the forged or fraudulent telegram:

First. Where the telegram is forged by a third person.

Second. Where the telegram is forged by the company itself or its agent.

It is obvious that we are not concerned with the first class and the authorities generally hold that the liability of the company bears a relationship to the degree of care or negligence exercised in the acceptance of the forged telegram. Bank of Havelock v. W. U. Tel. Co. (C. C. A.), 141 F. 522, 4 L.R.A. (N. S.) 181, 5 Ann. Cas. 515; Western Union Tel. Co. v. Uvalde Nat. Bank, 97 Tex. 219, 77 S.W. 603, 65 L.R.A. 805, 1 Ann. Cas. 573; Bank of Palo Alto v. Pacific Postal Tel. Co. (C. C. A.), 103 F. 841; Id. (C. C. A.), 109 F. 369, 54 L.R.A. 711; Western Union Tel. Co. v. First St. Bank (Tex. Civ. App.), 241 S.W. 789; Id. (Tex. Civ. App.), 258 S.W. 591; Mackay Tel., etc., Co. v. Erhard (Tex. Civ. App.), 264 S.W. 570; Western Union Tel. Co. v. Citizens' Bank of Harrison, 144 Ark. 577, 223 S.W. 29, 10 A. L. R. 822 and note page 828.

Second. A telegram forged by the company itself or its agent may give rise to a claim in at least three instances:

(a) At the instance of an addressee where such addressee relying upon the truth of the telegram acted to his disadvantage;

(b) At the instance of a third party, a stranger to the telegram;

(c) At the instance of that party whose name was forged, where such forgery was the proximate cause of an injury.

In this latter class the present case is found.

(a) While the present case is not brought by an "addressee" yet the cases falling in that category are relevant for consideration by analogy, in view of the lack of the exact authority under class (c).

The claim of an addressee for damages as a result of a receipt of a telegram forged by the company or its agent is not based on a contract between the company and the addressee, nor can any supposed agency exist between the addressee and the fictitious sender. The claim is purely in tort, based upon the false representation arising from the delivery of the telegram. A telegraph company upon delivering a telegram must in reason be taken to represent to the recipient that it received that message at the point whence it purports to come and that the message was directed to him. 1 Street, Foundation of Legal Liability, 454.

Under certain circumstances, a telegraph company is under a duty to inquire as to the validity of a telegram when forged by a third party. If this be true, and if the company be liable for its negligence in failing to exercise the proper care, then there must be a corresponding and a stronger duty not to commit the forgery itself and a corresponding liability for damages flowing from an intentional fraud. Usher v. W. U. Tel. Co., 122 Mo. App. 98, 98 S.W. 84. Actions by addressees where telegrams were forged by the agents of the company have been sustained in McCord v. W. U. Tel. Co., 38 Minn. 181, 39 N.W. 315, 1 L.R.A. 143, 12 Am. St. Rep. 636; Postal Tel. & Cable Co. v. Traders' St. Bank (Tex. Civ. App.), 150 S.W. 745.

(b) There are cases which deny the liability of a telegraph company for damages resulting from a forged telegram when sued by a third party who was neither sender nor addressee. Usher v. W. U. Tel. Co., 122 Mo. App. 98, 98 S.W. 84; Western Union Tel. Co. v. Schriver (C. C. A.), 141 F. 538, 4 L.R.A. (N. S.) 678. These were determined largely on the theory that the company owes no duty to an entire stranger to the telegram. The Schriver Case, supra, was discontinued before final judgment, the claim assigned and suit brought by assignee in the State Court as Wells v. W. U. Tel. Co., 144 Iowa 605, 123 N.W. 371, 24 L.R.A. (N. S.) 1045, 138 Am. St. Rep. 317. This case repudiated the doctrine of the Federal Court of Appeals and sustained a verdict for the plaintiff.

(c) I now come to a consideration of the precise question here involved.

The plaintiff is the person whose name is alleged to have been forged by the agent of the company and he is the only person damaged by the act.

The only pertinent case disclosed by the excellent briefs, or by an exhaustive independent research, is Magouirk v. W. U Tel. Co., 79 Miss. 632, 31 So. 206, 207, 89 Am....