BEN-NING . V. WESTERN UNION· TErl. CO.
131
·poration on said notes did not become apparent to him until afterwards." The corporation also did not consider itself to be liable thereon, aud contested its liability through three courts, and it was not until an exblustive examination of fhe facts tha:t its liability became apparent. The existence of the facts upon which thevaIidity of the claim depended subsequently became clear, and the disastrous attempt was made to enforce this liability by suit, but when the conversation ·took place Crane thought that hemustrely upon Brown and his collaterals. The mistake or enor which caused the misrepresentation was a mistake of law upon a state of facts which, when known, are apt to be puzzling. He did not forget, and did not conceal; but he was mistaken in his legal conclusions. If the misrepresentation had. been, in terms, that of a conclusion of law as to the legal consequences of facts truly stated, the bank would have been undoubtedly not liable, (Eaglesfield v. Marquis oj Londonderry, 4 Ch. Div. 693j) a.nd it is true that Crane/did not tell Farrel the history of the $29,900 note, but, simply stated the· result, viz., that the bank's claims against Brown & Bros. were-$17 ,300. The misrepresentation was not, therefore, a mere misrepresentation of law, because he did not tell Farrel his opinion or conclusion upon facts which were also communicated. But the finding leadS to the conclusiCib that these facts did not become clear and the consequent liability did not become apparent to him till afterwards, and in that respect the case is peculiar. A misrepresentation was made, resulting from imperfectly understood and blurred facts, and a consequent erroneous conclusion of law, and it is, in my view, unjust to hold that the person who honestly comes to such an erroneous conclusion must be visited with the unfortunate pecuniary consequences of his error. It was a mistake by reason of which Farrel has suffered terribly, and one which might have been avoided had Crane been more talkative, and told Farrel of all the bank's transactions with Brown, but yet a mistake which ought not to be visited upon the bank in this suit. The conclusion is that, upon the facts as found, the defendant is not lia,;. ble in this suit.
HENNING
v.
WESTERN UNION
TEL. Co.
(Oircw£tCourt, D. South Carolina. May 18, 1890.) TELEGRAPH COHPANIBS-NIlGLIGIlNOE-EvIDENOE.
In an action llgainsta telegraph company for an accident caused by a hanging wire, one witness testified that six or eight days before the accident four or five men cut .down a telegraph pole near the place where the accident occurred, and left the wire hanging. There was no comp'etent evidence that these men were in defenda.nt's service. Another witness testIfied that two men employed by defendant cut down a pole in the same neighborhood 15 days before the accident, but left no wires hanging. There was no proof that the witnesses referred to the same transaction. He14, that the evidence did not connect defendant with the accideIj.t so as to justify a verdict for plaintiff.
At Law. On motion for new trial. Buist &; Buist and John Wingate, for plaintiff. Barker, _ FitzsimDnB, for defendant. &;
182
FEDERAL REPORTER,
vol. 43.
>',SI!tJONTON, J. 'rhis case has been exhaustively discussed, both in of authorities and in arguments upon them. The right of the court, after verdict, to look into and test the evidence upon which the jury came to their conclusion cannot be doubted. Whenever there is no evidence to sustain the verdict, OT when there is evidence and it is insufficient, or when the preponderance of testimony is so great against the verdict as to raise thepresull1ption that it was renderfd through adve1;tence, or bias or prejudice in favor of or against one of the parties, or through some corruption, misconduct, or objectionable behavior on the IJart of the jury. the cpurt will and should set it aside. But when there has.been competent evidence submitted on both sides, and the reBult,depends upon the credibility which the jury attaches to testimony of the witnesses, without regard to the number of these witnesees, and the jury,rEiach their conclusion,it is not competent for the court to interfere with it. It is not the opinion of the judge as to the credibility of the witnesses 'which governs such a case, nor his conclusion as to the ponderance of the evidence, based upon his opinion as to their relative credibility, nor what venlict he would find were he a juror. The jury aloneC8,n determine this., It is their exclusive province; and, were judges to interfere with it, the value of a trial by jury would be destroyed. Such is the result of the authorities quoted upon both sides. The names of the cases appear in a note to this opinion. Let us examine this case in the light of these principles. The plaintiff brought his action for damages resulting to him .from this accident, caused, as he charges, by.the negligence ofthe agents of the Western Union Telegraph Company, The burden oi proof was on him. He and another witness testified that at the time of the accident he wa$ going along the footpath quietly, ancl that he accidentally struck a hanging wire, which caused the accident.· ' A witness waspuLup by defendant to contradict him in his statement that he accidentally touched the wire. The jury has solved this ques.tion. He did 1].o,t contribute to the injury. There is no dispute UPOH the fact that a wire depended from the electric wire, causing the accident; and the only question remaining is, was this wire left hanging there by agents of the defendant? This plaintiff must prove, and, if there be any contradiction i!J.the proof, the solution of the jury ends the question. The proof must be by competent evidence, that is, by evidence which the nature of the thing requires, (1 Greenl. Ev. § 2;)' and in examining his proof the court is not only at liberty, it is its duty, to, go into ,the :whole case. and examine into the testimony offered by the defense, in 'ordetto see if aU the testimony together may not sustain the verdict. See Thcymas v· .Jeter. 1 lIill, (S. C.) 382; Railway> 00. v. Cummings, 106 U. S. 700,1 Sup. Ct. Rep. 493. The witness for plaintiff who , connects the defendant with the· hanging wire is Augustus Pulfrich. He was called, and in his testimony in chief he swore that in the early part of September, some six, seven, or eight days before the accident, a time fixed by his illness the next day, he rememberedJhe cutting ofa pole in Hayne street at the place of this accident; that there were four or five men where the pole was cut,· sonie assisting in it,with pronged sticks in
BENNING t1. WESTERN UNION TEL. CO.
183
their hands; that he was near the man who did the cutting, and saw the pole cut; that this was done by Stephen Rumph, who was in the employ of the Western Union Telegraph Company, and who told him that he got orders from that company to cut it down; that when the polewas cut down the line dropped on the electric wire, and he told the man tQ remove the wire away from the electric wire, and he told him that he (Pulfrich) had nothing to do with it. If the case of the plaintiff had ended here there could be no question of disturbing the verdict. But he was recalled in reply, and in his testimony, and in that of Mr. Buist, it appeared that he did not know the man Rumph at the time the pole was cut down, nor his connection with the Western Union Telegraph Company; that his only knowledge of these facts was derived in a conversation with Rumph, whom 'he saw and recognized at Branchville flame months after the accident. The sufficiency of this evidence depends upon two questions: First, can i.t be used to show that Rumph was an agent of the defendant? and, second, can his declaration made at the time and uf!der the circumstances stated be accepted? There is no evidence that the man Rumph was the agent of the defendant in cutting down the wire in question, except his own statement, made to Pulfrich at Branchville. Even were his other declarations admissible, his agency must be proved in some other way. His declarations in pais are not competent to prove it. Whart. Ev. § 1183, and cases quoted; Jordan v. Stewart, 23 Pa. St. 244. But were we to suppose that his agency has been shown by competent evidence, in this action of tort his statements made in Branchville, months after the accident, are not competent evidence. Whart. Ev. § 1174, and notes, and quoting cases. It is clear, therefore" that there was not sufficient evidence on the part of the plaintiff connectingthe defendant with the accident. Was he aided by the evidence of the defenaant? Is there in the testimony of the defense proof of facts supplementing the evidence of Pulfrich so as to fix the c.ause of the accident on th.e ,defendant. I assume from the action of the jury that Pulfrich's testip.lOny was true in every respect. He saw on a day, six, or eight days before the accident, which occurred on 15th September, 1889, four or five men taking down a pole on which were wires. One of these men was a man whom he afterwards identified as Rumph. None of them ascended the pole. They cut it down, sustaining it with pronged sticks, and, in the act of cutting, the wires fell and lodged on the electric wires. The man identified as Rumph cut down the pole, and Pulfrich warned him as to the consequences of his act, which. warning was dig., regarded. The defendant's witnesses say that, acting for the Western Union Telegraph Company, they cut down a pole in the same locality on 1st September, 15 days before the accident; that two men only were engaged in that work.-Malone and Howell; that Howell climbed the pole, and cut away the wire; that Malone then cut down the pole as one would fell a tree, and that it came to the ground without anyassistance of any kind; that Rumph was not in the party; that none of the wire fell on the electric wires, and that none of it Was left behind; all of it rolled up and carried away. Is there a conflict in this tea-
" " I$DERAI,. :QfqRTER,vol.
.43. ,
"W;l;*lh'tbe, jury mU!lt .andcould decide? province is to Wlitimony .pro et con qnd pass upon, .the preponderance. To Qp thi$, t1re:teetimony must be contrary,-the one inconsistent with the r.A),t,per·. , testimony on onesiqe is true, on the other must be As hf!.!'\ been seen,' the jury has believed Pulfrich, and for the purpose! of tlris case his testimony is true. But, notwithstanding this, ;tP6 two for the defense, Malone and Howell, whose evidence .ba.s abstracted above, may also be true. They 40 not contradict nor is their testimony incqnBistent with his. On one occasion f(lur or, five men may have tllken down a pole in the way he stated, and nlay have let faU a, w.ire as he swearS; and Rumph may have been . ---:-nndoubtedly in. the opinion of tl\e jury was-one. of them. Yet on another, Malone lind Howell may have takendown a pole as they .have smted, leaving no wire. And this is the more probable, as the only circumstance in which their testimony coincides witht,pat of Pulfrich is in the locality. He speaks of circuillstances, time" persons, and conversation wholly different from those, spoken of by them. This being so, ,their testimony cannot supply the material fact in which the testimony of Pulfrii}h was insufficient. The verdict of the jury, settled no conflict no issue of veracity between him and them. the w:1101e. tet;tim ony of all the witnesses, there is no legal, evidence bringing Aome toJhe defendant's agents the cause or causes of the !1ccident. Says MIl,LER in Pleasants v.Fant, 22 Wall.lI6: , UIt i$the prov1nce of theCQurt, either before or after the verdict, to decide whetber the plaintiff has given evidence sufficient to support or justify a verdict.in bis favor; not whether on all the evidence the preponderating weight is inliiB favor; that is the business' of the jury. But, conceding to all the evidenlle offered Lhegreatest probative force to which according to the law Of evidence it is fairly entitled, iait sufficient to justify the verdict? If it does not, then it is the duty of the court after a verdict to set aside and grant a Dew trial." After' careful review and consideration of the whole record in the case, 1 am satisfied that the verdict was not sustained in a material point by the evidence. The charge of the judge induced the error on the part of the jury, in that it assumed that there was competent evidem,'e before them, which, they believed, would justify a verdict for the plaintiff. This assumption was clearly ail error on his part, and prejudiced the defendlUlt. 1Jndoubtedly it is the province of the jury to find all matters of fact, and of the court to decide all questions of law; but a jury has no right to.assume the truth 'of a matetial fact without some evidence legally sufficient to establish it. It is therefore error in the court to instruct the jury that they may fhid a material fact where there is no evidence from which it may be inferred. Parka v. Rosa, 11 How. 373. The verdict of Jury is set aside, and a new trial is granted. NOTE OF CASES CITED. U. S. v. Tillotson, 12 Wheat. ISO; Ewing v. Bu'l'net,ll Peb.4l; Uickman v. Jones, 9 Wall. 197; Klein v. Russell, 19 Wall. 463; Insurance (Jo. v. Snyder, 93 U. S. 393; Moulor v. Insurance (Jo., 101 U. S. .wilkinsPn v. (Jreely, I Curt.. 63; Blanchard'" etc., Facto'171 v.Ja-
llNITED STATES tI. BROd.
185
cob8, 2 Blatcbf. 69; Hathaway v. Railroad 00., 29 Fed. Rep. 489; Nonce v. Railroad 00., 33 Fed. Rep. 429; 8a"gent v. A88ociation, 35 Fed. Rep. 711; Wakeman v. Hungerford, 16 Fed. Rep. 741; Bearinl/ Y. DeWoV. S Woodb. & M. 185; Aiken v. Bernia. Id. 848.
UNITED STATES tI. BRO'WW. (Of,rcuit
Court, D. Vermont. August 8, 1890.)
On'BN8E8 .UU.INST POSTAL LAW8.
Mailing a letter inclosed in an envelope, on which the word8 "Exce18ior Collection Agency" are printed in very large full-faced capital letters, which OOOUP7 more than half the envelope, and are 80 placed as to be entirely separate from the direction to return to the sender, is a violation of 25 St. at Large, U. S. 400,0.1089, which forbids mailing any envelope on which appears any delineation, epithet, or language calculated and IDtended by its terms, manner. or lItyle of displal' t.o re1iect injuriously on the character or conduct of another. .
At Law.
On demurrer to indictment.
Prank Plumley, Dist. Atty.
William P. Dillingham, for respondent. WHEEI.ER, J. By chapter 1039 of the Laws ofthe First Session olthe Fiftieth Congress, 1888, (25 St. at Large, 496,) all matter otherwise mailable upon the envelope or outside cover or wrapper of which any delineations, epithets, terms, or language calculated by the terms, or manner, or style of display, and obviously intended to reflect injuriously upon the character or conduct of another, may be written, or printed, or otherwise impressed or apparent, is declared to be non-mailable; and depositing such matter for mailing or delivery is made punishable by fine of not more than $5,000, or imprisonment at hard labor not more than five years,or both, at the discretion of the court. The respondent is indicted for depositing for mailing and delivery matter upon the envelope of which the words" Excelsior Collection Agency" were printed in large' letters, and calculated, by the terms, manner, and style of display, and obviously intended, to reflect injuriously upon the character and conduct of the person addressed. He has demurred to the indictment, and raised the question whether those words are capable of being so displayed upon an envelope or wrapper of mail matter as to be calculated, and obviously intended, to reflect injuriously upon the ch'Otracter or conduct of another person. If they can be, they are well charged in the indictment to have been so displayed as to be so calculated ando1;>viously intended. To make the matter non-mailable, and constitute the offense that the delineation is calculated and obviously intended to so reflect, must be apparent from an inspection of the envelope. The design and intention must appear from that, and not from extrinsic facts averred or shown. The reflection upon character or conduct must come from seeing the envelope. The question here is whether it would come
