Lead Opinion
This сause comes here on motion for a new trial on the grounds of insufficiency of the evidence, the findings and decisions being against law, and errоrs in law. This action was brought by T. L. Stiles, as assignee of Hudson & Co., against the Western Union Telegraph Company, to recover damages for the delаy in the delivery of a telegraphic message sent by the plaintiff from Tucson to Tombstone. It appears that Hudson & Co. on the ninth day of May, 1884, had а banking-house in Tucson, with a branch establishment at Tombstone. Mr. M. B. Clapp, to whom the message was sent, was the cashier of the branch house, and there managed the bank. That on the evening of the ninth of May an assignment of all the property of Hudson & Co., both at Tucson and at Tombstone, was mаde to T. L. Stiles. Thereupon, on acceptance of the trust, the plaintiff, assignee, on the evening of the ninth of May, sent by defendant a telеgram to Clapp, and
On the opening of the bank on the 10th, the money in the vaults had been plаced upon the trays on the counter for the day’s business. On the reception of the dispatch, Clapp, the cashier, told the employes of its contents, and directed to have the money put back in the vaults, and then went to see plaintiff’s attorney, and in the mean time directed thе bank to be kept open. The business was on until the attorney came, and put- up notice, which was one-half hour after the delivery of the mеssage. The sum of $5,102.19 was paid out to unpreferred creditors, including the sum of $1,167.71 paid on the check of the operator. The operatоr testified that $1,000 of the $1,167.71 belonged to him, and the balance to defendant. The books of the bank show an itemized statement of the amounts drawn out by each depositor, and among them is Western Union Telegraph Company, $1,167.71. But that fact is immaterial. There can be no dispute but that the conduct of the operator was grossly negligent, and the defendant cannot be relieved of responsibility caused by his misconduct. No terms annexed tо the message can excuse this failure to deliver the message before the opening of . the bank; such failure to deliver being gross negligenсe and palpable misconduct, and the telegraph company must bear every legitimate consequence of its non-delivery.
But doеs that consequence involve anything which in this case happened after the message came to the hands of the bank? The telegraph company must be held for every dol
We must conclude that tbe finding “that, by reason of said failure to deliver message, tbe plaintiff paid out to unpreferred creditors tbe sum of $5,102.19,” is erroneous. Tbe record does not disclose tbe full amount paid out before tbe delivery of tbe message, saying only it was “other smaller sumís,” and there must be a new trial, unless plaintiff will, by written consent, accept from defendant tbe sum of $1167.71 with legal interest from tbe ninth day of May, 1884, in which case judgment for that sum is ordered to be entered.
Dissenting Opinion
(dissenting.) The evidence in this ease shows that the operator оf defendant at Tombstone withheld the message from about 9 o’clock in the evening, “on purpose,” as he swears, that he might draw out the money deposited to credit of defendant in the bank; that he waited until the bank opened, then went in, and drew out the funds of defendant. He kept the fact оf the assignment secret until then. He then went to his office, and handed the telegram to the messenger boy, who had to make a letterpress cоpy and enter it on the delivery-book, put it in an envelope, and address it, and then go to the bank and deliver the message. Meantime the bank was open in due course of business. This was a willful, and not a negligent act of the operator. He was not simply speculating on the information сontained in the message to his profit, but he was using the information to his profit and the customer’s injury. The defendant, after full knowledge of the facts, ratifiеd the act, and refused to refund the money so wrongfully drawn out. The defendant is liable for all injury to plaintiff consequent upon this willful wrong. Smart money or punitivе damages would have been proper. 2 Thomp. Neg. 851; Davis v. Western Union Telegraph Company, I Cin. Rep. 100; 2 Thomp. Neg. 1264; Edelmann v. St. Louis T. Company,
True the officers of the bank ought to have closed the bank when informed of the messаge; but if they did not, who should suffer? They were not plaintiff’s agents. They were joint and several wrong-doers with defendant after the message was delivered. Before that they were his unwitting instruments. The wrong-doer who wrongfully and will
Concurrence Opinion
(concurring.) We are clearly of tbe opinion that tbe defendant should not be held liable for amounts of money' paid out' after tbe dispatch was received at tbe bank. It required only a moment’s time to step to tbe front door of tbe bank, and close it. Tbe law in such case does not bоld tbe defendant responsible for avoidable damages. Undoubtedly a large portion of tbe money paid out would have remained in tbe bank if it bad been closed immediately upon tbe reception of tbe dispatch. I therefore concur.