122 Mo. App. 98 | Mo. Ct. App. | 1906
Plaintiff, claiming to have suffered pecuniary loss through the misfeasance of defendant’s agent, brought this action for damages and recovered judgment in the trial court.
The city of Parsons, Kansas, and the village of Min-den, Missouri, are about sixty miles apart. In each of them the defendant has telegraph operators who receive and transmit messages. In the former place it has what may be called a regular office and operator and it also has an equipment at the St. Louis and San Francisco railroad station into which what is known as the railroad wire enters; the latter being used mostly for railroad work. This equipment, at the time of plaintiff’s loss, Avas in charge of the railway station agent, Knight, and his assistant, Connelly. The latter turned out to be a forger and swindler and used the .telegraph wire in his scheme which resulted in his getting from plaintiff seven hundred dollars. The village of Minden is a small place without a bank and the few merchants there occasionally accommodated different ones of the public in cashing checks or drafts. Defendant’s agent and operator at Minden was likewise the railway station agent and
“Parsons Station, 26 190
“Agent, Minden, Mo.:
“Please help F. M. Markham cash check for seven hundred nine dollo in A. M'. & notify me soon as done pis. W. C. Knight.”
And then also sent the following telegram, to Sanford Bros., forging the name of the Commercial Bank at Parsons:
“Mch. 26, 1905.
“Dated Parsons, Kas.
“To Sanford Bros.
“Minden, Mo.
“Honor W. C. Knight’s check for seven hundred dol- . lars advise when done & will remit.
“Com. Bak.”
“Parsons, Kansas, March 26, 1905. No. 27.
“PARSONS COMMERCIAL BANK.
“Pay to F. M. Markham or bearer $700.00, Seven Hundred Dollars. W. C. Knight.”
“Parsons, Kas., 3 — 26.
“Agt. Minden:
“Enclosed find check for $700, seven hundred dollars favor F. M. Markham pis help him cash it it’s very important. W. C. Knight.”
He then described over the wire his own personal appearance to the agent at Minden pretending that it was a description of the fictitious Markham. He then took a train for Minden and presented himself to the agent as Markham near 9 o’clock p. m., whereupon the agent, taking along the forged letter and telegrams above set forth, went out with Connelly to the plaintiff, another merchant in the village whom they met on the street on his return from church. The agent, believing him to be so, introduced Connelly as Markham, and delivered to plaintiff the forged letter and telegrams including the one from the bank addressed to Sanford Bros, asking them to cash the draft. Plaintiff, stating that he could not look into the matter on the street, invited them to his house, whither all three went. Plaintiff read over the papers and remarked on the telegram from the bank being addressed to Sanford Bros. Whereupon both the agent and Connelly assured plaintiff that the telegram had been addressed to Sanford Bros, in the belief that they would cash the check, but that security was thereby intended for any one that would do so. The plaintiff then, in reliance upon the forged check and the telegrams being genuine and upon the assurances of the agent, as just stated, cashed the check and paid the
If this case was one where a forged telegram had been received by defendant’s agent, its solution would not be difficult. For in such instance, the rule is that the telegraph company is only charged with the duty of ordinary care, judged from the standpoint of the nature of its business, to avoid being imposed upon by the forger. Such companies, in such instances, are not insurers. [Western Union Tel. Co. v. Ulvalde Bank, 97 Texas 219; Same case, 77 S. W. 603.]
But the case presents the novelty of the defendant’s agent himself being the forger; and his act, it is claimed, was the proximate cause of plaintiff’s loss. We may here parenthetically remark that we put aside the letter and telegram from Connelly to the agent at Minden as they can have no bearing on defendant’s liability, as will more clearly appear further on; and we have only referred to them as a part of the history of the case. It ought to be plain to every one that if the telegraph company is under an obligatory duty to exercise ordinary care, through its agent, in protecting persons with whom it comes in business contact from forged or fraudulent telegrams, by stronger reason ought it to be held that a positive obligation rests upon it, to absolutely protect such persons in respect to its agent who is himself the swindler. The two obligations, at first view, look to be so near akin as to be substantially alike. While there is a difference, it is principally in the character or degree of the obligation. In the one the obligation upon the company is that its agent will be careful and prudent, the business considered, in guarding against imposition in sending forged telegrams. In the other there is an absolute assurance that the agent himself has not forged the telegram.
The argument against this absolute obligation and
We have treated the acts of Connelly, who Avas an assistant to the regular agent, Knight, as the defendant’s agent, which includes the assumption that Knight Avas defendant’s agent. We have also assumed defendant’s liability for misfeasances occurring at the railroad station office at Parsons, though defendant had a reg
The foregoing considerations determine that the act of the agent at Parsons was an act for which defendant should be held liable, if it was the proximate cause of plaintiff’s loss. And into that question we will now inquire.
We have already stated that the telegram was not directed to the plaintiff, but to Sanford Bros., merchants in the same village. Neither was it intended to affect the plaintiff or interest him in any manner. Plaintiff was therefore a stranger to the telegram and as such, can he claim that defendant has committed a breach of duty which was owing to him? On this subject we have been cited by counsel to a most interesting and instructive case written by Judge Sanborn of the United States
In view of the foregoinng considerations we have no hesitancy in holding the plaintiff to be without a right of action against the defendant, unless he is entitled to it by the following consideration iirged by counsel, viz., that, as stated in the fore part of this opinion, defendant’s agent at Minden went with Connelly to plaintiff’s house and there delivered the telegram to him and assured him that it would protect him as well ás the addressees.
It seems to us that such act of the agent was clearly outside the scope and course of his employment as defendant’s telegraph operator. It would be altogether unreasonable — it would be a dangerous enlargement of the authority of a telegraph operator, to say that he might leave his office and go upon the streets with a stranger and bind his principal as a sort of surety for money borrowed- by the stranger of one with whom the principal had no connection and in whom he had no interest and to whom he owed no duty. That is, practically, what is sought in this case; for there was nothing-done by the agent when he went out with Connelly in quest of money which can be in anyway traced to authority from defendant, either express or implied. True, he delivered the telegram to plaintiff and a delivery of telegrams is undoubtedly a part of his employment, and if he delivers to a party not the addressee he may put a liability against his principal, but not in favor of the person who accepts such improper delivery, for no duty was owing to such person. Besides, such person must necessarily know that the agent is violating his duty to his principal, if not the law itself, in making delivery to one not addressed. It must have been equally manifest to plaintiff that the agent, merely by virtue of being
The loss to' the plaintiff is to be regretted, for the part he took in the transaction seems to have been from a spirit of accommodation. But so far as concerns any features of the case which can legally bear upon defendant’s connection with it, he was not deceived. He knew the telegram was not sent to him and he must have known, if he had thought a moment, that the defendant’s agent was acting a part he had not been employed to perform. The remarks of Judge Valliant with respect to authority of a certain class of railroad agents are quite applicable to what we have written. He said that, “Men dealing with corporations of a public character like that of a railroad company are presumed to know the ordinary scope of the duties of a servant of the company with whom the public is brought into daily contact. They know the ordinary scope of the duties of a brakeman, a locomotive engineer, and a conductor. No man of ordinary common sense needs to be told that neither a locomotive engineer nor a brakeman has authority to make a contract in behalf of the corporation for the carrying of passengers, or to receive the price of carriage.” [O’Donnell v. Railway, 95 S. W. 196.]
The foregoing disposes of the merits of the controversy ; but plaintiff insists that defendant has not preserved a bill of exceptions. The point made involves a consideration of section 1679 of the Revised Statutes of 1899, which reads as follows:
“Whenever the judge from any cause shall be unable to hold any term or part of term of court, and shall fail*110 to procure another judge to hold said term or part of term” then a special judge may be elected by the attorneys present “to hold the court for the occasion.” It appears that Judge Shafer was judge of the Barton Circuit Court before whom this case was tried. That on the 9th of March, 1906, the time for filing the bill of exceptions was extended by Judge Shafer to the 10th of May, 1906. A regular term of the circuit court for Barton county began on Monday, the 7th of May, 1906. Judge Shafer adjourned court on the 8th of May to the next day, but before the opening of court on the next day he died. Thereupon, on May 9th, the following entry of record was made:
“On the convening of court this, morning at 9 o’clock there were present John Slavens, sheriff of this county, R. E. Casement, clerk of this court, George Rumsey, official stenographer, and the members of the bar, and it appearing that Hon. L. W. Shafer, judge of this circuit, ,had departed this life" since the adjournment of court yesterday evening and it appearing that the court could not be held according to its adjournment, court stood adjourned till to-morrow morning at 9 o’clock.” Then on May 10th, there was a record entry showing that it appeared that the judge of the court “was unable to hold court on account of his death, and no. other judge having been procured to hold the remainder of this term an election was held by the clerk” of the court when the members of the bar elected S. N. Van Pool, Esq., one of their number, as special judge. Judge Van Pool then entered upon the duties of special judge and on that day made an order extending the time for filing the bill of exceptions from May 10th to on or before the next September term of court. Thereafter, on May 26th, the Governor appointed Hon. J. B. Johnson to fill the vacancy occasioned by the death of Judge Shafer and Judge Johnson then, on May 28th, signed the bill of exceptions as it appears in this court.
It appears that Van Pool was elected by electors who were authorized to elect a special judge in certain contingencies. If we concede no such contingency as the statute contemplates had arisen, yet it is a fact that these electors, acting under a mistaken view of their right, did elect a special judge and that he assumed the duties of the office. He thereby became a judge de facto and his act in extending time for filing was a valid act. In State v. Carroll, 38 Conn. 449, it was laid down that, “An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and. justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised (1) without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people, without inquiry, to submit to or invoke his action, supposing him to be the officer he assumed to be; (2) under color of a known and valid appointment or election, but where the officer failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like; (3) under color of a known election or appointment, void because there was a want of power in the electing, or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public; (4) under color of an election or appointment by or pur
Furthermore, considering that plaintiff has set up in detail, substantially all the facts in his petition which he showed at the trial and upon which he relied for recovery, were are of the opinion that such petition failed to state a cause of action. The petition set forth, with particularity, the evidentiary facts upon which we have based our conclusion that he has not a cause of action. In such case the record proper is sufficient to authentically disclose the fatal defect and it may be taken advantage of on appeal though no objection has been made or exception taken. [Rixke v. Telegraph Co., 96 Mo. App. 406; Weil v. Green Co., 69 Mo. 281, 286; Hart v. Harrison, 91 Mo. 414, 420; Collins v. Collins, 53 Mo. App. 470.]
The judgment should be reversed and it is so ordered.