162 F. 657 | 7th Cir. | 1908
(after stating the facts as above). The defendant telegraph company received from Stevens, “a copper-min
The declaration alleges, in several counts, negligence on the part ot the defendant company: (a) In failing to transmit the plaintiff’s message with dispatch, as its undertaking required; and (b) in failure to notify either Stevens or Hall of the fact of delay. Under the defendant’s plea of not guilty, the issues thus presented were submitted for trial by the court, without a jury, and considerable testimony appears upon the primary issue of negligence in the treatment of the messages at Houg-hton and en route, with various versions by the witnesses of the transactions at Houghton. The finding of the trial court thereupon was general on all issues in favor of the defendant — in effect a verdict of not guilty — so that the finding is conclusive of reasonable diligence and dispatch on the part of the telegraph company, if supported by evidence. The rule thus stated is well settled and invariable (Lehnen v. Dickson, 148 U. S. 71, 72, 13 Sup. Ct. 481, 37 L. Ed. 373, and cases reviewed; Dooley v. Pease, 180 U. S. 126, 132, 21 Sup. Ct. 329, 45 L. Ed. 457), and it is equally applicable to such issue of fact, notwithstanding a motion by the defeated party raising an assumed question of law upon the sufficiency of the evidence — as clearly recognized in the several authorities, infra, cited in the brief for the plaintiff in error, by way of support for departure from, the rule in such case.
The plaintiff in error interposed a “peremptory motion for judgment for the plaintiff on the ground that the evidence was thereto sufficient in law,” which was overruled by the court. Thereupon the contention for review of this finding is thus stated in the argument on behalf of the plaintiff in error: “A reviewable proposition of law” is raised by such motion “as to the sufficiency of the entire evidence to sustain the case of the moving party.” And the authorities relied upon for its support are: City of St. Louis v. Western Union Telegraph Co., 148 U. S. 92, 96, 13 Sup. Ct. 485, 37 L. Ed. 380; United States Fidelity & G. Co. v. Board of Com’rs, 145 Fed. 144, 76 C. C. A. 114; World’s Columbian Ex. Co. v. Republic of France, 96 Fed. 687, 38 C. C. A. 483. Neither these cases, nor any citations in the argument,
On reference to the evidence introduced on behalf of the defendant in this record, support for the finding clearly appears in the testimony of the manager and both operators, at the Houghton office of the company. These witnesses concur in detailing the utmost dispatch and diligence in sending the messages to the addresses, 325 in number, as rearranged for best wiring service, with both operators and all the wires employed constantly in such work, from the time Stevens directed transmission until all were completed. Although Stevens (the sender) brought the message and lists to the office early in the morning, all were to be held to await his order for wiring, and such order was not given until 10:10 a. m., notwithstanding the imminence of the closing hour (for that day) of the Boston Stock Exchange. The methods employed by the telegraph office to expedite the wiring are described in detail by the witnesses — including simultaneous use of local and duplex (through) wires, provisions for relays and for “manifolding at relay offices,” together with needful rearrangement of the lists for such purposes — but we deem it sufficient to mention, as fair deductions of fact therefrom: That efficient operators and every available means were in the service, from start to finish, and the performance was extraordinary and speedy; that Stevens was acquainted with the difficulty of such work and the equipment of the office, and no representations were made to him which were not carried out; that Stevens made several calls at the office during the morning, and on his last visit, at the noon hour, was informed of a short delay which had occitrred from “wire trouble,” but then corrected, and the messages were in course of forwarding, but not completed; and that he neither inquired as to the number sent or further time required, nor gave any instructions or warning as to the remaining messages.
This version of the transaction was, in effect, accepted by the trial court as established by the preponderance of the proof. In so far as it was at variance with evidence introduced by the plaintiff, the finding in its favor is conclusive; and, so treated, no standing appears for the charge of negligence and breach of duty on the part of the defendant. Moreover, the facts stated by the above-mentioned witnesses, of exercising the utmost vigilance and dispatch in transmitting the messages, are uncontroverted, while reversal is sought upon these propositions, in substance: (a) That “quick dispatch” was understood to be needful and was promised by the manager; (b) that other testimony
The testimony discloses no undisputed fact of instructions disregarded, of materiality pointed out or suggested in the order of the addresses — concededly arranged both by Stevens and by the telegraph operators for convenience in wiring, with no intimation by Stevens that individual preference was intended — or of promise or duty unperformed on the part of the defendant; and we are of opinion that no reviewable error is assigned, either upon the motion of plaintiff, for a finding in his favor, or upon the adverse finding and judgment.
The remaining assignment of error relates to the rejection of testimony, offered by way of fixing damages for recovery by the plaintiff, and thus becomes immaterial in the foregoing view.
The judgment of the Circuit Court is affirmed.