Greer v. Western Union Telegraph Co.

Boyd, C. J., delivered the opinion of the Court. The plaintiff (appellant) on the 13th of December, 1915, obtained from the defendant (appellee) at- its Baltimore office a foreign money transfer order for the sum of $175, payable to her husband, John Greer, who was at Newcastle, New -South Wales, Australia, and paid the appellee $14.30 for it, in addition to the amount of the order. The appellee gave the appellant a receipt for the amount which reads as follows: “Baltimore, Md., Dec. 13, 1915. “Received of Clara Greer one hundred and seventy-five dollars ($175.00) to be paid to John Greer at Newcastle, New South Wales, Australia, subject to the terms and conditions of transfer order of this date. “J. M. McLean, T. A. Manager.” “Charges paid, $14.30.” ⁶⁶⁷ She found that her husband had not received the money, went to the office of the defendant to ascertain why he had not received it, and about two weeks afterwards an agent sent for her to come to the office and identify a receipt. Upon looking at it she found .that it- was not her husband’s handwriting and that it was signed “John Green,” instead of “John Greer.” She inquired about it from time to time and about six months afterwards was told that “they,” referring to the company's agents, had not heard anything about it, but that another man had got the money.

About two months later she vras told at the office that a man named Green got it, that he had gone off to the war, used some, and returned some of the money. She said she read the receipt, and saw on it, the words, “carried to Newcastle subject to1 the terms and conditions of the transfer order of this date” — that the transfer1 order was dated December 13, 1915, the day she signed it. In some way the original transfer money order, or application, as it is also spoken of, was lost or mislaid before the trial. On the stand she was shown a blank order and said it did not look like that — was a little wider, and not quite that long; that- “it was; like, a money order blank where you are supposed to siga your name and the one you were sending to and where it was to go.

That is all I can remember what was on it, T remember 'pay to the. order of.’ ” She was; asked about the conditions on it which will he seen later, and said she did not see them. Later she said, “I never saw that paper I signed again: about a year afterwards, they showed me a paper there once that they said I signed. T did not read it.” John Alexander Greer, the husband, testified that he uever received the money and described the efforts he had made to find, it, that he was informed in Newcastle that a man by the name of Green had received it. The defendant read to the jury the deposition of M. P. Martin, who testified that he lived in San Eraneiseo, and said, “I am telegraphic man in the Anglo, London, Paris ⁶⁶⁸ National Bank, exchange departments and cable in the business of transferring money orders by telegraph; that was my position on December 13, 1915.

I remember, and my records show a receipt from the Western Union Telegraph Company on said 13,th day of December, 1915, a telegraph money transfer for one hundred and seventy-live dollars from Baltimore, Maryland, to John Greer, care of David Baker, Newcastle, New Sbuth Wales, Australia. I received that money order on the 13th day qf December, 1915. I forwarded it on the same day to the Union Bank of Australia at Sydney, New South Wales, Australia, by telegraphic cable.” He said they had no correspondent at that time at Newcastle, and the nearest one was the Union Bank of Australia at Sydney; that there was no method of sending money directly by cable •to Newcastle, the Union Bank would remit 'by telegraph under receipt from them; that they gave a receipt to the Western Union for $175. “It was paid to our bank to be cabled to John Greer at Newcastle, New South Wales. We sent a cable to New South Wales directing the payment of this money received from the Western Union; that was December 13th, 1915, by Postal Telegraph and Cable Company.

The company owning, the cable is the Commercial Pacific Cable Company; its lines extend from San Francisco, California, to Sydney, Australia. The, cable message was sent to Union Bank of Australia at Sydney; the message filed by me with the Postal Telegraph Company at San Francisco, California, directed the payment of the” money received from the Western Union to John Greer at Newcastle. He said he did not have the original message, as that is held by the Postal Telegraph Company, but it directed the payment of the money to John Greer ,and not John Green; that he Was informed by the Postal Telegraph Cbmpany that it was sent correctly in the name of “Greer” but in some way the name was changed to “Green” when the message reached Sydney; that he was instructed to send the money to John Greer. He further said that his bank had recovered twelve pounds, ⁶⁶⁹ two shillings and eight pence, which was paid by mistake to John Green, and it was now holding that draft for the Western Union from whom they received it.

Victor J. Albert, manager of the Western Union business in Baltimore, explained the method employed in sending money from one telegraph office to another. Re said: “The transfer order is the order of the payee on the telegraph company to pay money. It is the application blank. The form that you hand me was in use in our company in 1915.

I am not sure that our office has the identical paper that was signed by this. lady. If we have not that identical form it was turned over to you, or it appears to me that that was mislaid or something. I am not sure.” The form spoken of is as follows: “Form 572-A. “The Western Union Telegraph Company of Baltimore City. “Newcomb Carlton, President. “Foreign Money Transfer Order. “No..... .............., 191.... “The Western Union Telegraph Company of Baltimore City, subject to the conditions below, pay to ...............the foreign equivalent of the sum of ........dollars at the rate of exchange established by ■tbe company or its foreign agents, for transfers of the similar amount on the date of this transfer. “When the company has no office at destination authorized to pay money, it should not be liable for any default beyond its own lines, but shall be the agent of the sendexq without liability, and without further notice, to contract on the sender’s behalf with any other telegraph or cable line, bank or other medium, for tbe further transmission and final payment of this order.” Re was then asked about the loss of the: paper and whether it had been seax'ched for and said, “Oh, yes, our office looked £oa‘ it at that time; there was no different form. I have entire charge of the offices here in Baltimoi'e, the employment ⁶⁷⁰ of people, the purchase of everything.

I think I saw the paper that Mrs. Greer did sign. After the claim was made, the papers were brought — an investigation was made, and the result of the investigation was given to the complainant. As I recollect it, the complainant’s attorney took the matter up, and it was — the whole matter was gone over, and the result of the investigation was given to him. At that time the original application form, which was the prevailing form, and no other having been used.” At that point the plaintiff objected and moved to strike out the words, “which was the prevailing form and no other having been used.” That motion was overruled and the ruling was presented by the first bill of exceptions.

Tbe witness continued his direct testimony as follows: “At that time I reviewed it with the attorney; Mrs. Greer was not there,” and upon being told to tell the jury whether that- paper was the same as the one that had just been submitted, he answered: “It was the same.” That was objected to but admitted, and the ruling constitutes the second bill of exceptions. He then said: “It contained that agreement”; that the Western Hnion has no line to Newcastle and had none in 1915. He then explained the method of sending a message and said that a money transfer would be handled on the same basis; that “it would be transmitted over the Western Union lines to San Francisco-, where they terminate. At that point they would use the most available carrier that they could find to reach New South Wales, some other company which operated between San Francisco and New South Wales,” etc. The court requested the attorney for the defendant to inquire more in detail as to what efforts had been made to find tbe original of the application, which it Was said was signed by Mrs. Greer.

He asked the witness to tell the court and jury what efforts had-been made and the witness replied: “Our own file, complaint ease file, was searched in every particular. The papers had passed between Baltimore and ⁶⁷¹ San Francisco on two or three occasions. San Ftancisco was asked to find — to malte a search. The auditor’s office was asked to make a search.

The money transfer1 — general money transfers office was asked to make a search,. All places that we had the least idea that this message could have gotten — •” At that point the witness was interrupted by counsel for the plaintiff, but he went on to say that he directed the search to be made and they were unable to find it. Finally, with the consent of the plaintiff’s attorney, the witness was asked, “Didn’t this get into your auditor’s office?” and answered, “The application form would go — has to go to the auditor’s office for auditing. That is the way they cheek up- the money that comes into this office.” And he said that the last time he saw the paper he talked with the attorney for the plaintiff at the office of defendant in Baltimore, and the only information he had is that the paper became lost and he requested the search to he made through the various channels; that he knew from his own personal knowledge that it went to the auditor’s office in New York City, and the court then said he thought the evidence was, sufficient.

On erossnexamination, the witness said that he conld not be certain whether the plaintiff came to his office with her attorney; that the form offered in evidence was in use in 1915; that the Western Union collected the entire charges, of $14.80, and that he was not present when Mrs. Greer sent the money. The defendant called Mr. Royeroft, the attorney for the plaintiff. He said that he went to the Western Union office about the money with Mrs. Greer and Mr. Albert, talked with him about the matter; that some one in the office handed him a paper and said “Show it to Mrs. Greer,” and “I took the paper and showed it to Mrs. Greer. I believe that T showed her her signature.” He was asked if she denied her signature, aud answered, “;S>he said, to' the best of my knowledge, ‘This looks like it, but it is not the paper that I signed.’ ” Again he was asked: “Didn’t- she admit her own signature at that meeting?” and answered, “To the best of my knowl ⁶⁷² edge, Mr. Gross — it has been seven years agOj about six years ago — she said, ‘This looks like the paper, looks like the paper.’ I think that is what she said.” He did not say that Mrs. Greer denied her signature, but she gave the impression that it was not the paper.

On being further questioned, this appears in his testimony: “Q. I do not want impressions. I want to know what she said? A. I cannot say that she emphatically denied it was the paper, but she said the paper looked somewhat different from the one she signed. In other words, there seemed to. be some doubt in her mind whether the paper then shown her was the same paper which she had signed.

Q. That paper which Mr. Albert testified is the paper that she had signed had in it this agreement that I have read to the court .and the jury, didn’t it? A. The paper which Mr. Albert handed to me had that statement in it.” When the testimony of Mr. Albert and Mr. Roycroft are taken together, there would seem to be no real doubt that the paper signed by her was before her and her attorney when they met at the Western Union office, and it contained the provisions, which were in the copy offered. There was no reversible error in the first or second exceptions: The statement in the first is not objectionable, and the second excep*tion is still less so, as the witness afterwards stated, without objection, that the paper, claimed to be lost or mislaid, contained the agreement. Moreover, there was no exception taken when the copy was. finally admitted, .and as the important question is in reference to the effect of the agreement, or conditions, we will consider that without further reference to the first and second exceptions.

The defendant’s first prayer, which was granted, after being excepted to generally and specially, was as follows: “The court instructs the jury that there has been no evidence offered legally sufficient to prove that the defendant company entered into any special contract to be liable for negligence on connecting lines, and the unoontradicted testimony shows ⁶⁷³ that there was no negligence on the part of said defendant company in transmitting the plaintiff’s money over its lines and delivering the same to the next connecting telegraph company on its way to destination .and their1 verdict must, therefore, be for the defendant.” As the granting of that prayer took the case from the jury, it presents the. most important question to be considered. If that was correctly granted, the plaintiff’s prayers were, of course, properly rejected, as the