Kinnier v. Kinnier.

decided against a recovery, on the ground that the wife could not acquire a domicile in Vermont separate from her husband, and also on the ground that the parties went there to evade the laws of this State, and the courts here would not enforce the judgment. It will be seen that the facts in material points are quite unlike this case. Here it does not appear where the parties were married, but it does appear that they did not reside here, but in Massachusetts, and that the laws of that State and not this were evaded, and in that case the action was directly upon the judgment.

But I am unable to see how that case can be sustained in the light of the later decisions. In the first place, I am not prepared to assent to the proposition that a wife may not have a domicile separate from her husband, when she has a cause for a divorce, and her separate and antagonistic interests are thus concerned. Bishop on Marriage, §§ 728, 730. Nor can I assent to the reason given for allowing the husband to repudiate the binding force of the judg ment upon him, after voluntarily submitting himself to the jurisdiction of the court, and litigating the case upon its merits. him, the questions litigated were res adjudicata.

It is to be regretted that marriage and divorce laws are not uniform in all the States, and we think they should all conform to the laws of this State; but we must never fail to remember that the States are equal in power, and that each State has the same right to exercise its judgment in the passage of laws, on this and every other subject, that our own State has; and in dealing with questions of this character, it is gratifying to know that the requirements of the constitution accord with the principles of the "golden rule."

It is now well settled that the lex loci which is to govern married persons, and by which the contract is to be annulled, is not the law of the place where the contract was made, but where it exists for the first time, where the parties have their domicile, and where they are amenable for any violation of their duties in that relation. Story's Confl. of Laws, § 230 a.

The judgment sustaining the demurrer must be affirmed. All concurring. Judgment affirmed.

Elwood v. The Western Union Telegraph Co.

ELWOOD et al. v. THE WESTERN UNION TELEGRAPH Co.

(45 N. Y. 549.)

Telegraph company — fraudulent message. Negligence. Evidence.

A telegraph operator at T. received a message dated at E. and addressed to bankers at P., which read as follows: "Keystone bank will pay the check of T. F. McCarthy to the amount of twenty thousand dollars ($20,000.) J. J. Town, cashier of Keystone bank." The person presenting the message was known to the operator by the name of McCarthy, but no authority from the cashier was shown. The message was transmitted, and proved to be fraudulent. Held, that the operator was guilty of gross negligence, for which the telegraph company was liable.

A witness may be contradicted by circumstances as well as by other witnesses. Courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of the witness, for the simple reason that no other witness has denied them, and that the character of the wit ness is not impeached.

ACTION by Elwood et al., against the Western Union Telegraph Company, to recover damages for having paid $10,000 on the faith of a fraudulent message transmitted to plaintiff's by defendant company. The plaintiffs are bankers doing business at Pithole, Pa., and on the 12th of August, 1865, they received the following telegram:

"From Erie, Pa. Dated August 12th Forwarded from Titusville, 12 M. Received August 12, 1865.

To PRATHER, WADSWORTH & Co., Pithole:

"Keystone bank will pay the checks of T. F. McCarthy, to the amount of twenty thousand dollars ($20,000).

"(Insured.)

KEYSTONE BANK."

The plaintiffs observed that the name of the officer of the bank had been omitted; and a second message was received with the addition of the words "John J. Town, cashier of Keystone bank.” Near the close of the day, McCarthy presented himself at plaintiff's banking house and drew $10,000 on the faith of the telegram, and left the remaining $10,000 to his credit. It appeared that the telegram was fraudulent; that McCarthy himself had presented the telegram at Titusville for transmission; that the operators knew

Elwood v. The Western Union Telegraph Co.

McCarthy by that name; that he showed no authority from the cashier. The operators at the Titusville office, however, swore that they did not send the second message; and there was some evidence to show that there was a break in the line at the time the second message was purported to be sent. The jury, upon this point, found against defendants. A message, of which the following is a copy, was claimed by the Titusville operators to have been sent by McCarthy:

"To T. E. McCARTHY :

"Erie 10th, 186 Forwarded from Titusville, 11th.

"I have made arrangements at Keystone bank for you to draw on me at sight. H. W. HAMLIN."

"J. J. TOWN, Cashier."

The evidence on this point is reviewed in the opinion. Defendant's counsel suggested and insisted that an accomplice of McCarthy had cut the wire between Titusville and Pithole, and, by the use of a temporary battery, had telegraphed the second message; but there was no evidence of this. Judgment for plaintiffs for $13,193.94, which was affirmed at general term. The defendants further appeal to this court.

G. P. Lowry, for appellant, cited, on contradiction of presumption, Burrill on Cir. Ev. 36; 3 Black. Com. 371; Tibbetts v. Dowd, 23 Wend. 292, 294; Miller v. Ship Resolution, 2 Dall. 22; Best's Law of Ev. (5th Eng. ed.) § 116; Mitcheson v. Oliver, 3 E. & B. 318; Newton v. Pope, 1 Com. 110; Lomer v. Mecker, 25 N. Y.361; U. S. v. 9 Packages, 1 Paine Cir. Ct. R. 137, 141, 142. On the function of the jury, Rudd v. Davis, 3 Hill, 284; 7 id. 529; Wild v. Hudson R. R. R. Co., 24 N. Y. 430; Mason v. Lord, 40 id. 476, 484. On negligent act done in the absence of the master, Giblin v. McMullen, L. R., 2 Privy Council, 319, 335; 1 East, 105; Coleman v. Riches, 29 Eng. L. & Eq. 323; Norway v. Grant, 10 C. B. 665; Amer. Law Rev. 1871, 207 to 209.

Amasa J. Parker, for respondents.

RAPALLO, J. The material question upon this appeal is, whether, upon the evidence, the court was justified in leaving it to the jury to determine whether or not the message in controversy was transmitted from Titusville to Pithole by any of the employees of the

Elwood v. The Western Union Telegraph Co.

defendant at the Titusville office. The receipt of the message at the lithole office over the defendant's wires, and its delivery to the plaintiffs by the defendant's agent, as coming from Titusville, were sufficient, prima facie at least, to establish, as against the defend ant, that it was transmitted in the ordinary course from the Titusville office, and to throw upon the defendant the burden of disproving

that fact.

But it is claimed on the part of the defendant that it was conclusively proved by the testimony of the three operators at the Titusville office, that the message was not sent from that office; that the court should have been governed by that evidence, and itself decided the question of fact, and that it was error, in that state of the proofs, to submit it to the jury.

The only theory by which the testimony of the operators is sought to be reconciled with the conceded fact of the receipt of the message at Pithole over the defendant's wires is, that the wires were cut by McCarthy, or a confederate, at some intermediate point, and a machine there applied whereby the message was transmitted. And it is claimed that the court was bound to solve the difficulty, by presuming that this was actually done, rather than to permit the jury to pass upon the credibility or accuracy of recollection of the witnesses.

There was no evidence in support of the theory that the wires were cut, except the physical impossibilty that the message could have been transmitted by any other means, if not sent from one of the defendant's offices. It is true that there was evidence of a break in the circuit at about the time in question; but as this break occurred before two o'clock, when McCarthy applied to have his message sent, there is no ground for assuming that he had any agency in it, for it frustrated his own plan by preventing the sending of the message at two o'clock, which the defendant's agent was willing and endeavored to send, and would have sent at that time but for the break.

The defendant contends, however, that the possibility of such an interference reduces the evidence of the sending of the message from Titusville to a mere presumption, which is entirely destroyed by the positive testimony of the defendant's agents, and that their evidence must be treated as uncontradicted and unimpeached. And numerous authorities are cited in support of the proposition that neither the court or jury is at liberty to disbelieve such evidence

Elwood v. The Western Union Telegraph Co.

It is undoubtedly the general rule that where unimpeached witnesses testify distinctly and positively to a fact and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption. Newton v. Pope, 1 Cow. 110; Lomer v. Meeker, 25 N. Y. 361. But this rule is subject to mary qualifications. There may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made. The witnesses, though unimpeached, may have such an interest in the question at issue as to affect their credibility. The general rules laid down in the books at a time when the interest absolutely disqualified a witness, necessarily assumed that the witnesses were disinterested. That qualification must, in the present state of the law, be added. And furthermore, it is often a difficult question to decide when a witness is, in a legal sense, uncontradicted. He may be contradicted by circumstances as well as by statements of others contrary to his own. In such cases, courts and juries are not bound to refrain from exercising their judgment and to blindly adopt the statements of the witness, for the simple reason that no other witness has denied them, and that the character of the witness is not impeached.

Very clear and decisive evidence was required in this case to establish that the message which came over the defendant's wires was not communicated in the natural and ordinary manner. From the necessity of the case, such evidence as there is to that effect proceeds wholly from parties having an important interest in the question. Each of them, if guilty of the negligent act, would have the strongest motive to deny it, as the admission would subject him or her to severe responsibility for the consequences. This is a controlling consideration in determining whether the statements of these witnesses should be taken as conclusive. Without imputing & want of truthfulness to these witnesses, we think that their relation to the subject-matter in controversy was of itself sufficient to take from the court the right to dispose of the case upon their evidence and to require that the jury should pass upon the weight to be given to their statements. There is also a want of distinctness in the statements of the witnesses, irrespective of any question of credibility.

The defendants claim that each of the operators positively denies sending the message in question. This, however, is not perfectly clear. Mary J. Carr testifies, that McCarthy handed a message to