CHAPTER IX. TELEGRAMS. § 57. Rule as to Letters Applied. 58. Original Message the Primary Evidence. a. Of Illinois Supreme Court. b. Of Alabama Supreme Court. c. Of the United States Circuit Court. 60. Presumptions as to Telegrams. 61. Secondary Evidence of Contents. § 57. Rules as to Letters Applied. The legal intendments that follow and apply to evidentiary facts connected with the introduction of letters as media of proof, suggest the question whether similar intendments are to be indulged with reference to telegrams. The drift of authority gives the affirmative answer. Gray, Telegraphs, § 136; Com. v. Jeffries, 7 Allen, 548, 83 Am. Dec. 712; Whart. Ev. § 76; State v. Hopkins, 50 Vt. 316; Scott & Jarnagin, Telegraphs, § 345. The presumption indulged in is one of fact, and so open to rebuttal and contradiction, and consists merely in the natural inference which may be drawn from the experienced certainty of transmission. The great bulk of letters sent by mail reach their destination, and equally so the great bulk of telegrams. A failure in either case is an exception, possible, but rare. The letters are transported by government officials under oath, and upon a system framed to secure regularity and precision; telegrams by private corporations, whose success and prosperity depend largely upon the accuracy and promptness of the work, and are faithful under the incentive of interest. These companies perform a public service and are regulated to some extent by the public law. There is impressed upon the telegraph service something of a public character, and thrown around it the guard and the obligations of the public law, and it seems to us reasonable to assimilate the rules of evidence founded upon transmission by mail to that of transmission by telegraph. It may be that the presumption of correct delivery, agreeing in kind with that raised upon delivery to the post office, should be deemed weaker in degree, but in view of the wide extension of telegraphic facilities, and of their increasing use in business correspondence. and the difficulty of tracing a dispatch to its destination, it should be held that upon proof of delivery of the message for the purpose of transmission, properly addressed to the correspondent at his place of residence, or where he is shown to have been, a presumption of fact arises that the telegram reached its destination sufficient at least to put the other party to his denial, and raise an issue to be determined. There is greater safety in conceding the existence of such a presumption of fact under a system like ours, in which the party addressed is always at liberty to testify, and, if dead, his representatives are protected against the evidence of his adversary as to personal transactions and communications. The primary and original evidence of that fact would be the telegram itself, and the handwriting of the sender, or of an agent shown to have been duly authorized; but when it appears that the telegram has been destroyed by the company, secondary evidence of the essential fact may be given. Howley v. Whipple, 48 N. H. 487; Durkee v. Vermont Cent. R. Co. 29 Vt. 127; Breed v. First Nat. Bank, 6 Colo. 235; Rosenthal v. Walker, 111 U. S. 185, 28 L. ed. 395. § 58. Original Message the Primary Evidence. It is only on proof excusing its production that a copy of it can be received in evidence or its contents be shown aliunde. The rule which is applicable to letters, applies to telegrams affecting contracts. Wharton, Ev. § 76; Scott & Jarnagin, Telegraphs, § 340; Matteson v. Noyes, 25 Ill. 591; Durkee v. Vermont Cent. R. Co. 29 Vt. 127. It has been held in Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88, that although secondary evidence of the contents of a telegram is inadmissible without accounting for the absence of the original, yet a new trial will not be granted on account of the irregular admission of such secondary evidence if it appears that the sender himself admitted the sending of the telegram and the contents of it. His omission to deny the sending of the alleged telegrams should have the same effect. Adams v. Davidson, 10 N. Y. 309; Oregon SS. Co. v. Otis, 14 Abb. N. C. 388, 53 Am. Rep. 221. Where a party sending a message is the responsible party, and sends a message for the purpose of giving directions to be acted upon, the message delivered at the end of the line is the original. Morgan v. People, 59 Ill. 58. In Wilson v. Minneapolis & N. W. R. Co. 31 Minn. 481, the court says: "It is as though the communication had been made orally by a personal agent, in which case it would have been enough to prove the agency and the message delivered by the agent." A telegraphic message is not admissible in evidence as a communication of a party offering it without proof of its authenticity. Burt v. Winona & St. P. R. Co. 31 Minn. 472. On an indictment for forgery in a case reported from Vermont, the state's attorney introduced evidence showing that the accused had knowledge of a certain fact. This evidence was in the form of an uncertified copy of a telegram received by a third party, but purporting to have been sent by the accused, making inquiries about the fact in question. The answer to this message which had been received by the accused was also in evidence. It further appears, that the third party testified to the accuracy of the telegram he had sent to the accused, and the state had shown that the original message had been destroyed. The court admitted both telegrams, and the appellate tribunal affirmed the ruling. State v. Hopkins, 50 Vt. 316. § 59. Views of Different Courts. a. Of Illinois Supreme Court.-The Illinois supreme court has given this matter critical attention and in an early case reached a conclusion that embodies the most logical exposition of the principle underlying both the legal relations of the telegraph company to the general public, and the rules of evidence this familiar relation is held to impose. It is an elementary principle that resort may always be had to the best evidence within the power of the party, by which the fact is capable of proof. And it is an inflexible rule that if it is in writing, the original must be produced, unless it be shown that it is destroyed, lost, or not within the power of the party to produce it, before secondary evidence can be received of the contents, and before a copy of a written instrument can be admitted, a sufficient foundation must be laid by preliminary proof of destruction or absence. Where no such proof is made to justify the reception of a copy in evidence, it is inadmissible. We know that, by the admirable system regulating the government of the telegraph companies, the original dispatch is preserved, and may be at all times procured for proper purposes. The paper filed at the office, from which the message is sent, is of course the original, and that which is received by the person to whom it was sent, purports to be a copy. If the dispatch is sought to be used in evidence, the original must be produced, and its execution be proved, precisely as any other instrument, or its absence accounted for in the same mode, before the copy can be received. Matteson v. Noyes, 25 Ill. 591. b. Of the Alabama Supreme Court.-The supreme court of Alabama, in a recent case, has had this entire subject under critical review. The distinguished Chief Justice Brickell, writing for affirmance and voicing the unanimous opinion of the entire court says: "The general principle is, that a party is bound to produce the best evidence within his power, of which a fact is capable; and that whenever the original of a writing can be produced, secondary evidence of its contents will not be received, and it is as applicable to telegrams as to other writings. There is some difficulty in determining whether the message delivered to a telegraphic office, or that which is delivered to the person to whom it may be addressed at the point of destination, is to be regarded as the original. Perhaps under some circumstances the one or the other may be considered the original. It is not now necessary to enter on that inquiry. If the message as it was delivered to, and may be preserved in the office of the telegraph company at Philadelphia, is to be regarded as the original, it was without the jurisdiction of the court, as was its custodian. It is a settled rule of evidence in this country, that if writings, necessary as evidence in a court of one state, are in the custody of persons residing in another, secondary evidence of their contents will be received." American U. Teleg. Co. v. Daughtery, 89 Ala. 191; Shorter v. Sheppard, 33 Ala. 648. And see Whilden v. Merchants & P. Nat. Bank, 64 Ala. 1, 38 Am. Rep. 1; Burton v. Driggs, 87 U. S. 20 Wall. 134, 22 L. ed. 302; Beattie v. Hilliard, 55 N. H. 428; Binney v. Russell, 109 Mass. 55. In a note appended to the case of Whilden v. Merchants & P. Nat. Bank, supra, we find the following suggestive commentary upon the subject under review: "In Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355, it was held that a telegraphic dispatch is not admissible in evidence without proof of the handwriting of the original and of its delivery for transmission. This was an action to enforce an agreement by telegraph to indorse. The court said: "The message, sent by Easton, to be transmitted to Chesapeake city, was the original (Scott & Jarnagin, Telegraphs, 357, and authorities there cited) and not the message which was received over the wires at Chesapeake city. The latter must be considered as a copy, and carries with it none of the qualities of primary evidence. Ordinarily the usual course is to show the delivery of the original message of the party sought to be charged, at the office from which it is to be telegraphed, and then show that it was transmitted and delivered at the place of its destination. But even where the original is produced its authenticity must be established, and this either by proof of the handwriting, or by other proof establishing its genuineness. The destruction of all the messages sent from the office, on the day named, is sufficient foundation for the admissibility of secondary evidence. But this secondary evidence can only be admitted upon proof that the copy offered is a correct transcript of the message actually authorized by the party sought to be affected by its contents.' This is sustained by Howley v. Whipple, 48 N. H. 487, and United States v. Babcock, 3 Dill. 576. Mr. Abbott (Trial Ev. 290) assents to this where the object is to prove assent or admission, but says the copy delivered is the primary evidence to prove notice to the receiver. Wheat v. Cross, 31 Md. 99, 1 Am. Rep. 28. In Barons v. Brown, 25 Kan. 410, it is held that where the controversy is not between the sender and the person to whom a telegram is addressed, the original message, if not left or destroyed, must be produced." c. Of the United States Circuit Court.-In a very important case Judge Dillon admitted telegrams in evidence, addressed to the defendant by name, care of the Executive Mansion, Washington, D. C., on proof that they were received by the telegraph company in Washington, and delivered to the doorkeepers at the executive mansion, it being shown that the defendant had an office therein as the private secretary of the President, and that the usage of the doorkeepers was to deliver such messages to the persons to whom they were addressed, or place them on their desks. Under such circumstances, telegrams were admitted, without direct proof of their actual delivery to, or actual receipt by the defendant. The following is from the opinion of the court overruling the |