Hewitt v. The Western Union Telegraph Company

• Decision Date: 19 May 1913
• Citation: 157 S.W. 827,172 Mo.App. 272
• Parties: H. B. HEWITT, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant
• Court: Kansas Court of Appeals

157 S.W. 827

172 Mo.App. 272

H. B. HEWITT, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 19, 1913

Appeal from Livingston Circuit Court.--Hon. Arch. B. Davis, Judge.

Judgment affirmed.

Fred S Hudson for appellant.

(1) Section 3330 above referred to is a penalty statute and by the numerous decisions of the appellate courts of this State as well as the courts of other jurisdictions, all hold that it must receive strict construction and that no case must fall within it which does not come within the spirit and scope of the statute. Wagner v. Telegraph Co., 152 Mo.App. 369; Grant v. Telegraph Co., 154 Mo.App 279; Edrington v. Telegraph Co., 115 Mo.App. 98; Moore v. Telegraph Co., 164 Mo.App. 165; Cowan v. Telegraph Co., 149 Mo.App. 407. (2) That plaintiff cannot recover on an interstate message has been repeatedly held by the decisions of courts of this state as well as in other jurisdictions, as this statute has no extra territorial jurisdiction. Connell v. Telegraph Co., 108 Mo. 459; Rixke v. Telegraph Co., 96 Mo.App. 406; Stanley v. Railroad, 100 Mo. 439.

Karl Hirsch and Scott J. Miller for respondent.

(1) Proof that a telegram was not received at the place to which it was addressed is evidence that the message was not started on its way to such place. Barrett v. Tel. Co., 42 Mo.App. 542. (2) A message directed from Missouri to another State is an interstate message when sent. It does not become an interstate message, within the meaning of the penalty until it is started from its initiative point. This question has been decided by the Kansas City Court of Appeals and never has been overruled. Barrett v. Tel. Co., 42 Mo.App. 542; Tel. Co. v. Yopst, 118 Ind. 248; Burnett v. Tel. Co., 39 Mo.App. 599; Woods v. Tel. Co., 59 Mo. App 236; Brashears v. Tel. Co., 45 Mo.App. 433; Taylor v. Tel. Co., 107 Mo.App. 108. (3) Where a delay in transmission is shown, if the company relies upon wire or other trouble as a defense, it must go further and show that it was not due to the fault of the company. Western Union v. Botts, 10 Tex. Civ. App. 540; Kiley v. Tel. Co., 16 N.E. 75. (4) And the burden is on the defense, when proof is made by plaintiff that the message was received and the tariff paid, and it was admitted that it was not received at the point of destination, the burden is upon the defendant to explain the delay. Tel. Co. v. Sircual, 103 Ind. 227. (5) And the same proofs as made in this case are held, by the Arkansas court, to be intentional on the part of the agent and a total disregard of his duty. Tel. Co. v. Davis, 41 Ark. 79.

OPINION

JOHNSON, J.

--Plaintiff, the sender of a telegram, brought this suit against the telegraph company to recover the penalty provided in section 3330, Revised Statutes 1909. The facts are uncontradicted that defendant received a message from plaintiff at its office in Moberly, that it was addressed to a well-known business firm in Chicago, Illinois, that plaintiff paid the fee demanded for its prompt transmission and delivery to the addressee and that it was not delivered.

The petition alleges that "defendant by its agents and servants wholly unmindful of its duty in the premises negligently and carelessly failed to transmit said message from Moberly, Missouri, where the same was delivered, although receiving the pay therefor, and said message never was delivered to the addressee in Chicago." Plaintiff prevailed in the circuit court and defendant appealed.

We construe the petition as alleging a cause of action arising from the failure of defendant to transmit the message from Moberly--to carry it out of this State into Illinois--and not as seeking the infliction of the statutory penalty for a failure to deliver it to the addressee in Illinois. Proof that the message was not delivered is prima facie proof that it was not sent forth from Moberly. [Barrett v. Tel. Co., 42 Mo.App. 542.] And since defendant did not offer any excusatory or explanatory evidence we shall give conclusive effect to the prima facie case made by plaintiff and assume that defendant's breach of contractual duty occurred at Moberly.

But counsel for defendant insist that we are dealing with an interstate message and that such messages are exempt from the operation of this penal statute which must be strictly construed and cannot be given extraterritorial effect. [Citing Wagner v. Telegraph Co., 152 Mo.App. 369, 133 S.W. 91; Grant v. Telegraph Co., 154 Mo.App. 279, 133 S.W. 673; Eddington v. Telegraph Co., 115 Mo.App. 93, 91 S.W. 438; Moore v. Telegraph Co., 164 Mo.App. 165, 148 S.W. 157; Cowan v. Telegraph Co., 149 Mo.App. 407, 129 S.W. 1066; Connell v. Telegraph Co., 108 Mo. 459, 18 S.W. 883; Rixke v. Telegraph Co., 96 Mo.App. 406, 70 S.W. 265.]

The cases in this State in which the penal statute has been held to have no application to an interstate message deal with instances where the alleged wrongful act of the company is charged to have occurred beyond the boundaries of this State, e. g., Connell v. Telegraph Company, supra, where the gist of the action was a failure of the defendant to deliver a message sent from this State into Kansas. Our attention has not been called to any decision in this State denying operative force to the statute in a case such as the present where the contract for the transmission and delivery of an interstate message was made and the breach thereof occurred in this State.

We concede that defendant was engaged in interstate commerce that the contract related to an interstate message and that the penal statute in question cannot be extended to cover delinquencies occurring beyond the borders of our State. But that the purpose of the statute is to stimulate such common carriers into the proper performance of their duties within this State, whether such duties relate to interstate or intrastate business, cannot be questioned and that the Legislature had authority to deal in this manner with interstate business is a proposition that has received the express sanction of the Supreme Court of the United States in the cases of ...