Davis v. Western Union Telegraph Co.

• Decision Date: 01 April 1918
• Docket Number: No. 12534.,12534.
• Citation: 202 S.W. 292,198 Mo. App. 692
• Parties: DAVIS et al. v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

202 S.W. 292

198 Mo. App. 692

DAVIS et al. v. WESTERN UNION TELEGRAPH CO.

No. 12534.

Kansas City Court of Appeals. Missouri.

April 1, 1918.

Error to Circuit Court, Adair County; C. D. Stewart, Judge.

Action by John H. Davis and another against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant brings error. Reversed.

Albert T. Benedict, of New York City, and a J. McCulloch and New, Miller, Camack & Winger, all of Kansas City, for plaintiff in error. Weatherby & Frank, of Kirksville, for defendants in error.

ELLISON, P. J.

Between 2 and 3 o'clock p. m. July 13, 1915, plaintiffs delivered to defendant's agent at Kirksville, Adair county, Mo., a telegraphic message to be sent to one A. Hulse at Yarrow, a small town in the same county and state. They paid the charges, and the agent accepted the message. It was not delivered to Hulse until near 4 o'clock of the next evening. Thereafter plaintiffs began this action for the penalty of $300 provided in section 3330, R. S. 1909. The case was tried by the court without the aid of a jury. No declarations of law were asked by either party, save a peremptory direction that the court find for defendant which was refused. The judgment was for plaintiffs.

It is alleged in plaintiffs' petition that upon the defendant's agent receiving and accepting the message "it became and was the duty of defendant, through its said agent, to promptly, with impartiality and good faith, transmit and deliver said message to the designated address, and to use due diligence to place said message in the hands of the addressee by the most direct means available without material alterations, under a penalty of $300 for neglect or refusal so to do." It is then alleged that defendant failed to so deliver the message, "wherefore plaintiffs say that by reason of the facts alleged defendant has forfeited the sum of $300, * * * and that by reason of the facts alleged plaintiffs are entitled to recover of the defendant the sum of $300," for which they pray judgment.

Defendant's answer was a general denial, together with allegations that an unprecedented storm had thrown down its wires and prevented a prompt transmittal and delivery, and that such impairment of its service was the sole cause of the delay. It was then pleaded that the most direct means, and only available route, for a message from Kirksville to Yarrow, was around through the state of Iowa, by which it was transmitted, and that it thereby became an interstate message, under interstate commerce law, not subject to regulation and imposition of penalties by the statute of Missouri. Plaintiffs made reply to this answer, in which, after denying new matter, there was a plea of estoppel based on the failure of defendant's agent to inform plaintiffs that the wires were down, as is required by section 3332.

We have gone over the entire evidence, and find the following to be the facts established without contradiction: That plaintiffs at some time between 2 and 3 o'clock p. m. of July 13, 1915, delivered the telegram in controversy to defendant's agent at Kirksville to be transmitted to Hulse at Yarrow, and that it was not delivered to him until about 4 o'clock p. m. next day, an( that from the time plaintiffs delivered the message in Kirksville (or earlier) until the afternoon of the next day defendant's communication with Yarrow was cut off by storms, or floods, having put the wires out of service. The evidence further showed, without contradiction, that on account of the wires being out of service between Kirksville and Yarrow by the usual and natural route, viz, by way of Novinger or Milan, Mo., defendant routed it through Des Moines, Iowa. On this basis defendant made claim that the telegram came under the control of the interstate law, and that the penalty authorized by the Missouri statute for delay in transmitting or delivering could not be recovered.

On account of defendant having thus shown that it was prevented from transmitting and delivering promptly by reason of the wires being down, plaintiffs have endeavored to show defendant to be estopped from such defense by the claim that the agent did not inform plaintiffs when the message was delivered that the wires were down, as required by section 3332, imposing 'a like penalty of $300 for failure to give such information to persons sending telegrams. On this question of fact, while defendant undertook to prove that its agent did inform plaintiffs of the condition of the wire, yet there was evidence in plaintiffs' behalf tending to show that no such information was given, and, since the finding in plaintiffs' favor, we must assume the fact to be as claimed by plaintiffs.

With this concession of fact comes the question whether, under the pleadings as applied to the statute, plaintiffs have made a case. Two sections of the statute are involved, viz. 3330 and 3332. The first of these declares that, if a sender of a telegram deposits it with the company's agent with a payment of charges it becomes the duty of such company to use due diligence to transmit and deliver to the addressee by the most direct means available "promptly and with impartiality and good faith, under a penalty of three hundred dollars for every neglect or refusal so to transmit and deliver." It will be seen that the petition follows the lines of this section and is undoubtedly bottomed thereon.

The second section (3332) provides, as already stated, that if the defendant's line is out of order when a message is delivered to it for transmission and delivery, it is the duty of the agent "plainly to inform" him of that fact, "and for omitting so to do * * * the company by which he is employed shall incur a like penalty as in section 3330." As intimated above, plaintiffs' petition was confined exclusively to matters constituting a cause of action under section 3330; no mention being made of anything required by section 3332. But when defendant, by its answer, pleaded as defensive matter that storms and floods bad put its wires out of service, plaintiffs then, in their reply, pleaded that defendant's agent did not inform them of that fact, as it was his duty to do under section 3332, but, on the contrary, accepted the message for prompt transmission and delivery without notifying or advising plaintiffs of any condition of the wires which would prevent such prompt service, and in consequence "pl...