Birney v. New York & Washington Printing Telegraph Co.

Goldsboroucui, J., delivered the opinion of this court. The action in this case was instituted in the Court of Common Pleas of Baltimore city, by the appellant against the appellee, to recover damages for the total neglect to send, or transmit, a message, or despatch, received by the appellee to be transmitted. The appellee pleaded, that it did not enter into the contract alleged in plaintiff’s declaration, for the transmission of the telegraphic despatch, or message, named therein. At the trial of the cause an admitted statement of facts, and the evidence offered by the appellee, were submitted to the jury.

The appellant, then offered three prayers, and the appellee one prayer. The court rejected the prayers of the appellant, and granted the prayer of the appellee; to this ruling of the court the appellant excepted. In reviewing the action of the court below, it is proper to notice, that the prayers submitted to the court are predicated upon the evidence, without any reference to the pleadings. In such case the rule is, “that where a prayer, or prayers, neither point nor refer to the pleadings, the correctness of their being rejected or granted, depends, not upon the state of the pleadings, but upon the evidence, to which filone they refer.” See 1 Gill, 227 ; 7 Gill, 5; 1 Md. Rep., 207 ; 13 Md. Rep., 126 .

In view of the above rule, we are next, to consider the reasons, assigned by the appellee, why the appellant’s prayers were properly rejected. The appellee contends, that “in each of these instructions, it is stated that, on the written statement of fads, read, in evidence, the jury must final, ” fc., and that the effect of this wording of the prayers is, to deprive the jury of their undoubted privilege,of deciding upon the truth of theevidence,” and cites 1 Md. Rep., 451 , and 11. G. & J., 489. We find a satisfactory answer to this proposition in 11 Md. Rep., 185, in which this court say: “It. is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary when the case is tried upon ³⁵⁶ admissions at the bar.

The jury may discredit the testimony, but cannot find contrary to the agreement of the parties.” See, also, the case of Armstrong vs. Risteau, 5 Md. Rep., 276. Again, the appellee contends that the first prayer is bad, “because it could not be granted unless the cpurt assumed the non-existence of all other testimony given in the cause; because by the prayer, no par^ of it is submitted .to the landing of the jury.” In our opinion the appellant, in presenting this prayer to the court, only exercised a right recognized by law. In Whiteford vs. Burckmyer and Adams, 1 Gill, 143 , the court say: “We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case,, and to demand the opinion of the court distinctly upon it. If the opposite party believes that other facts, not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has' the equal privilege of asking an opinion on the additional facts, b.u(t not the privilege of controlling and modifying the hypothesis of his antagonist.” Here the appellee has brought itself within tlje above rule, by asking an instruction from the court on other facts not embraced in the prayer of the appellant.

It is further contended by the appellee, that it is protected from the demand of the appellant by its rules and regulations, established under the Act of 1852, ch. 369. By a careful examination of those, rules and regulations, we find no provision exempting .the appellee from liability in a case of default and neglect, such as is contained in the statement of facts. It is admitted by .the statement of facts, that the appellant delivered the message for transmission, and paid the price demanded for that service; that the person who received it was the authorized agent of the appellee; that the message was received at the appeliee?s place o.f business; that the appellee forgot, and neglected to send said message and despatch, and it has never been sent. The loss of the appellant in the sale of his stock, is als,o, admitted.

We must therefore regard ³⁵⁷ the appellee as a party contracting to perform a service, within, the sphere of its business for compensation, which it fails tq perform, and, for such failure, must account for any loss or injury that results from its neglect; and such loss, or injury, will be the measure of damages to which the plaintiff is entitled, whether admitted or found by the jury. The appellant’s