Foster v. Western Union Telegraph Company
| Decision Date | 28 February 1920 |
| Parties | ARNIE FOSTER, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, a Corporation; and POSTMASTER GENERAL ALBERT SIDNEY BURLESON, UNITED STATES DIRECTOR in Charge of Said Corporation, Appellants |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Butler County.--Hon. Almon Ing Judge.
Judgment reversed.
Francis R. Stark and Wammack & Welborn for appellants.
New Miller, Carmack & Winger of counsel.
Hill & Phillips for respondent.
The plaintiff brought suit against defendant under section 3330, Revised Statutes 1909, to recover a penalty of $ 300 provided therein for failure to promptly transmit and deliver telegraphic messages. The petition is in two counts, there being two messages which were sent by the plaintiff from the town of Fisk, in Butler County, Missouri, to the town or Arbyrd, in Dunklin County, Missouri. Both of these messages were sent to James Lancaster, the first one delivered to the telegraph operator at Fisk between three and four o'clock in the afternoon, on November 25, 1916; it was immediately forwarded from Fisk, Missouri, to St. Louis, Mo., and at St. Louis was relayed to Paragould, Ark., and from Paragould, in the State of Arkansas, it was relayed the next morning at 10:35, to Arbyrd. The testimony of Lancaster was that he never received this message, and it was shown that it was not sent out of Paragould to Arbyrd until the next morning because at 7:22 p. m., there was no operator at Arbyrd. The other message was sent by the same party, to the same man, and was filed at Fisk between two and three o'clock in the afternoon on November 27, 1918. It was sent at once to St. Louis, relaid from there to Paragould, Arkansas, and from Paragould it was relayed to Hollywood, the next station on the line of railroad from Arbyrd. It was received at Arbyrd between four and five o'clock on the evening of November 27, 1918. The operator at Arbyrd was a woman, and the town is an unincorporated village, having no telegraph messengers at the office. It was a rainy evening and night when this message reached Arbyrd, and Lancaster lived from a half to three-quarters of a mile from the telegraph office. The operator noticed that it was an important message, and handed it to Mr. Austin who stayed within a quarter of a mile of Lancaster, but he did not deliver it to Lancaster until between four and five o'clock the next morning. The testimony is undisputed and very conclusive that in sending telegraphic messages from Fisk to Arbyrd, the customary routing is to send them first to St. Louis, then relay to Paragould, Ark., and there relay it to Arbyrd, there being a direct telegraph line between Fisk and St. Louis, another between St. Louis and Paragould, and Arbyrd is on a telegraph line that runs from Paragould eastward. It is located on what is known as the P. S. & E. Railroad, and it is shown that the best route for sending messages from Fisk to any point on the P. S. & E. Railroad is first to St. Louis, then to Paragould, Ark., and then east on this line. There was some attempt on the part of the plaintiff to show a telegraph line wholly within the State of Missouri connecting these points, but at best there was nothing shown other than that they were telegraph lines along railroad tracks, there being no showing that there was a commercial telegraph line or lines that connected Fisk with Arbyrd, owned and operated by the Western Union Telegraph Company or by the Director of Telegraph Companies.
The pleadings show that the Postmaster General of the United States was the Director in charge of the Western Union Telegraph Company's lines, and that messages were received and transmitted on said lines under the management and control of the Director General; the joint resolution of the United States Senate, approved July 16, 1918, authorizing the President of the United States to take possession and control of the telegraphic systems of the United States, together with a proclamation of the President issued July 22, 1918, whereby the President took possession and assumed control of every telegraphic system within the jurisdiction of the United States, and directed that the possession, control and operation of the lines should be exercised by and through the Postmaster General; and Bulletin No. 1, issued on the 23rd day of July, 1918, by the Postmaster General, and Order No. 1744, issued by the Postmaster General on July 23, 1918, relating to the operation of telegraph and telephone systems of the United States, were all introduced in evidence by the defendant.
At the conclusion of the evidence, the defendant offered an instruction in the nature of a demurrer to the evidence, which was overruled. The cause was submitted to a jury which returned a verdict for the plaintiff on both counts against the Western Union Telegraph Company, a corporation, and against the Postmaster General, Alfred Sidney Burleson, United States Director in charge of said corporation; judgment was rendered accordingly, and it is from this that appellants bring the cause here.
There are a number of reasons why the plaintiff cannot prevail in this action. The first is that there is a failure on plaintiff's part to show any delay in one of the messages. The addressee lived a half to three-quarters of a mile out of the town of Arbyrd, away from the telegraph station which was in charge of a young lady; there was no messenger there, and the usual manner...
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