Eddington v. Western Union Tel. Co.

• Decision Date: 14 November 1905
• Citation: 91 S.W. 438,115 Mo. App. 93
• Parties: EDDINGTON v. WESTERN UNION TEL. CO.
• Court: Missouri Court of Appeals

91 S.W. 438

115 Mo. App. 93

EDDINGTON v. WESTERN UNION TEL. CO.

St. Louis Court of Appeals. Missouri.

November 14, 1905.

TELEGRAPHS — DELAY IN TRANSMISSION OF TELEGRAM — PENALTY.

Under Rev. St. 1899, § 1255, providing that it shall be the duty of a telegraph company, on payment or tender of the usual charges for transmitting dispatches, to transmit the same promptly and with impartiality and good faith, under penalty of $200 of every neglect so to do, the penalty is not recoverable, where a message is expressly accepted subject to delays, the sender being informed at the time that there is some trouble with the wires, and the operator uses reasonable diligence to transmit the message as early as possible.

Appeal from Circuit Court, Carter County; Wm. N. Evans, Judge.

Action by Wess Eddington against the Western Union Telegraph Company. Judgment for plaintiff. Defendant appeals. Reversed.

This case originated in Carter county. It is a suit for the penalty of $200 prescribed in section 1255, Rev. St. 1899, for the failure to promptly transmit a telegram with impartiality and good faith. At the conclusion of plaintiff's evidence in the court below the defendant requested, and the court refused, a peremptory instruction to the effect that plaintiff could not recover, and the defendant excepted to the action of the trial court thereon. The jury returned a verdict for the plaintiff for the penal sum of $200, and the court entered judgment thereon, awarding one-half of the amount to plaintiff and one-half to the public school fund of that county, as provided by the statute. After unsuccessful motions for new trial and in arrest the case comes here by appeal. Appellant urges, first, that the petition fails to state a cause of action; and, second, that the trial court erred in refusing the peremptory instruction asked, because the evidence was insufficient to entitle plaintiff to go to the jury. We will not consider the question whether, or not the petition is sufficient. We refrain from expressing any opinion thereon, as we are clearly of the opinion that the evidence is insufficient to support the finding, whether the petition is good or bad. Plaintiff himself did not go upon the witness stand. He saw fit to call the defendant's telegraph operator instead, who was the only witness in the case. The operator gave evidence in substance as follows: At about 8:30 a. m., on the 27th day of July, plaintiff delivered to him at the company's office at Elsinore, Mo., in said county, a written message, properly addressed, etc., to be transmitted by telegraph as addressed, and paid him the usual and customary charge thereof in advance, and that the only way a message could be transmitted was via Cape Girardeau, which is about 84 miles distant from Elsinore. Of the transaction he testified, verbatim, as follows: "Q. What did you do with that message? A. He was there with me, and I called Cape Girardeau, but could not get them, as we had been having trouble—the lines had been down—and I told him I did not know whether I would be able to get them that day or not, and that I accepted it subject to delay. Q. Was it written on that message that you accepted it subject to delay? A. No, sir; but I called Cape Girardeau every 15 or 20 minutes until noon, and either just before dinner or just after dinner he came by the window and asked me if I sent that message, and I told him `No', and offered him his money back and told him he would better send it by mail, and that I might not get the Cape that evening; that the line was down; and he said there was no hurry about it, to send it when I could; and I called them every 15 or 20 minutes till I left the office that evening about 8 o'clock, but could not get them, but I finally got them about 10 o'clock the next morning. Q. Do you know the cause of the delay? A. No, sir." On cross-examination he testified as follows: "A. I told him, when I took the message, that it would be subject to delays, but I told him just before or just after dinner that he would better take his money back...