Chisholm v. Beaver Lake Lumber Co. ( 1886 )

Wilson, J.

We are of opinion that without the telegraphic

messages attached to the deposition, the plaintiff’s evidence would have been insufficient to support the verdict; it therefore becomes necessary to determine whether the telegrams were competent evidence. They did not purport to be, nor is it claimed that they were, originals—that is, they were not the instruments made and signed by the defendants and left with the company for transmission. They wore copies taken from the company’s wires by its operator at the office to which they were sent.

In Matteson v. Noyes, 25 Ill. 591, the trial court admitted in evidence what purported to be a telegram,- there being no evidence to account for the absence of the original, or that the paper offered was a copy. It was simply the dispatch received from the telegraph office at the end of the line. The Supreme Court held that it was inadmissible, saying, It is an inflexible rule that resort must be had to the best evidence within the power of the party to produce, and if it is in writing the original must be produced, unless it be shown that it is destroyed, lost, or not within the power of the party to , produce it. If the dispatch is sought to be used in evidence the original must be produced, and its execution proved precisely as any other instrument before the copy can be received.”

It seems to be agreed, in all the cases, that only originals can be resorted to as evidence, except where their production is excused so as to admit secondary evidence of their contents; but what is to be considered the original, w'hether that delivered to the company by the sender, or that delivered by the company to the person to whom it is addressed, depends upon the circumstances. In Durkee v. Vt. Cen. R. R. Co., 29 Vt. 127, it is held that where the person to whom the message is sent tabes the risk of its transmission, or is the employer of the telegraph, the original is the message delivered to the company. But where the person sending the message takes the initiative, so that the telegraph is to he regarded as his agent, the original is the message actually delivered at the end of the line. Redfield, C. J., said, “In regard to the particular end of the line where inquiry is to be made for the original, it depends upon which party is responsible for the transmission across the line, or in other words, whose agent the telegraph is. The first communication in a transaction, if it is all negotiated across the wires, will be effective in the form in which it reaches its destination. In such case inquiry should first be made for the very dispatch delivered.”

In Gray on Communication by Telegraph, Sec. 135, the rule on this subject is laid down thus: “Whether the message delivered to the telegraph company or the one delivered by it, is the original, depends, in a certain set of cases, upon whether the person who employs a telegraph company is responsible upon an altered message.” The rule as stated by Redfield seems to be in accordance with the current of the authorities. But under the state of the proof in the present case it is unnecessary to determine whether the telegrams attached to the deposition of Olson are to be regarded as the originals or otherwise, there being a question back of this which we think decisive of the present appeal. It is indispensable, in every case and under all circumstances, to show that the person sought to be charged with the consequences of a telegraphic message, either sent or caused the message to be sent. This proposition is but a truism requiring neither argument nor authority for its support. The person who is alleged to have sent a message must at le-’.st be shown to have authorized the telegraph company to make some communication. Gray, Communication by Telegraph, Sec. 135 et seq., and cases cited in notes; Williams v. Brickell, 37 Miss. 682; C. & I. R. R. Co. v. Russell, Adm’r, 91 Ill. 298. If the rule were otherwise the door would be opened to the perpetration of the grossest frauds. It is matter of common knowledge that telegraphic messages are habitually sent without any inquiry by the operator as to the authorization of the sender. The operator sends as a matter of course and without question, all messages handed to him for transmission. Ho one would contend that a person could be bound by a telegram which he did not authorize, and of which he had no knowledge.

We fail to find in the record any sufficient evidence that the messages in question were sent by the defendants or by their authority. The messages themselves are inadmissible to prove it, appellant denies it, and the burden of proof was upon appellee to show it.

The judgment below must be reversed and the cause remanded for a new trial.

Reversed and remanded.