Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1914-07-15
WESTERN UNION LOSES
IN SUPREME COURT

fsrsc,st n'srA'cs SO .oar,se JOURNAL
Santa he. July t. That the ad-
dtesscc OF a telegram may maintain
an action IN court against a telegraph
company Tor neglisently delivcrinI a
forged message To him. which he. IN
good faith aud without negligence
acts upon to his damage. was the
ruling today of the state supreme
court In the ease Of the State Bank
OF Commerce of Clayton, appellee, Ns
the Western Union Telegraph conn
pany appellant, from Union county.
the decision OF the lower court being
affirmed in an opinion written by
chief Justice &. J. Roberts. In which
Justices Frank W. Parker and Rich
ard n. Hanna concur.
The syllabus follows
Statement of Case.
This is a suit for the recovery e
nN specified amount as damages from
the appellant for money paid out ty
the bank upon a telegram delivered
bv the appellants agent which proved
10 be a forged telegram. and for
eontrihutory negligence. Appellant
answering the complaint challenged
the suffieiency of the complaint TO
make "A cause OF action, and also at
legged tAt appellee WAS guilty of
contributory negligence In not haN-
ing such telegram repeated.
Upon a remittur by the plaintiff,
Judgment was entered Tor plaintiff
from which judgment this appeal is
prosecuted
syllabus by the Court.
/. The addressee Of telegram
may maintain an action In tort
against telegraph company for
neglgently delivering a forged mes
sage To him, which he. IN goou faith.
and without negligence, acts upon TO
his damage.
>. II It not the duty Of the tel
egraph company 10 Investigate and
satisfy itself OF the Identity of the
person who delivers To II a message
for transmission. All that is required
of IL Is the exercise Of reasonable
care in the receipt and transmission
thereof.
.. In the absence of facts or cir
climstances which would suggest or
arouse suspicion in the mind of "A
person Of ordinary caution OF false
impersunation, or want Of author
ity. the exercise of reasonable care
bv "A telegraph operator to receive
messages from those only who have
authority to send them does not re-
uuire him to investigate the identity
or authority OF those who present
them.
4 The rule is. that whore the
plaintiff proves loss without nesli-
genceon MS part. by acting on a
message. delivered to him ny lhe
company as coming from, but not III
fact sent by. one in whose name 1t Is
signed. he makes a PklMA FAClE
ease, and the duty devolNes upon the
of rebutting it.
8. Where party attempts 10
demur and plead to the merits at the
same time and to the same plead
ing. he valves the demurrer,
d. An objection to the reception
of any evidence on the ground that
the complaint falls to state facts
sufficient To warrant a cause OF ac-
ton. should definitely point out
wherein the complaint so fails. In or
der to enable the trial court To IN
telIigcntly rule upon the question ana
to show the opposite party the point
of the objection. And unless such
objection is specific IT VIII be un-
availing on appeal.
= Where complaint Is first at
tackled in the appellate court, upon
the ground that II does not state facts
sufficient to constitute q cause of ae-
ton, II will be literally construed In
order to uphold the judgment. and.
II IL contain allegations from which
every fact necessary to maintain the
action may be inferred. It will be sus-
tanned, Held, that II complaint which
states facts which II proven on the
trial. would constitute a good prima
facie case for the plaintiff, viii he
held sufficient TO sustain the verdict
where IL is not attacked until after
verdict.
8. The continuance of cause.
upon application, rests In the discre-
lion of the trial court and Will not he
nterfcred with upon appeal unless IT.
appears that the trial court has
abused such discretion.
3. In a civil case. where wit
ness resides beyond the jurisdiction
" the court IN which such cause Is
pending. Il party has no right to rely
upon the promise of such witness to
attend the trial, but should take his
deposition.
10. Where in u suit against a tele- !
graph company for damage, for the
negligent delivery of forged mes
iage. the plaintiff proves the delivery |
" the company. and that the mes |
age was a forgery. and his damage !
n reliance thereon. he makes out !
prima facie case and motion for
ION suit is properly denied
H. Where a party introduces in |
evidence. he can not COM
lain If the trial court permits the
,ther party to rebut the same.
II. No alleged errors not jurls
Iictional will be considered on APP