McCloud v. Western Union Telegraph Co.

• Decision Date: 19 May 1913
• Citation: 170 Mo. App. 624,157 S.W. 101
• Parties: McCLOUD et al. v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

157 S.W. 101

170 Mo. App. 624

McCLOUD et al. v. WESTERN UNION TELEGRAPH CO.

Kansas City Court of Appeals. Missouri.

May 19, 1913.

1. TELEGRAPHS AND TELEPHONES (§ 78) — EVIDENCE OF AGENCY — TELEGRAMS — AUTHORITY TO RECEIVE.

In an action for failure to transmit and deliver a telegram, evidence held to sustain a finding that the agent's assistant in the office where the message was filed for transmission was defendant's agent with authority to receive the message.

2. TELEGRAPHS AND TELEPHONES (§ 78) — MESSAGES — FAILURE TO TRANSMIT AND DELIVER — DELIVERY TO AGENT FOR TRANSMISSION.

The rule that, in order to subject a telegraph company to a statutory penalty for failure to transmit and deliver a message, it must be shown that the message was delivered to one of the company's agents does not mean that it must be handed in person to the operator who does the work of actually sending messages; it being sufficient that it is delivered to an agent in the office whose duty it is to receive messages and the fee paid thereon.

3. PRINCIPAL AND AGENT (§ 20) — ESTABLISHMENT OF AGENCY — EVIDENCE — DECLARATIONS OF AGENT — COURSE OF DEALING.

While an agency cannot be proved by the declarations of the agent, his testimony is competent, and the agency may be established by the testimony of the agent, or it may be implied from the conduct of the principal and the agent and the course of dealing between them and the community.

4. TELEGRAPHS AND TELEPHONES (§ 78) — MESSAGES — FAILURE TO TRANSMIT AND DELIVER — PENALTIES.

In an action against a telegraph company to recover a penalty for failure to transmit and

deliver a message, proof of a failure to perform the duty owing by the telegraph company to the public to transmit and deliver the message is sufficient to establish a liability without proof of willful negligence, partiality, or bad faith.

Appeal from Circuit Court, Grundy County; G. W. Wannamaker, Judge.

Action by Katie McCloud and another against the Western Union Telegraph Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Fred S. Hudson and E. R. Sheetz, both of Chillicothe, for appellant. Platt Hubbell and George Hubbell, both of Trenton, for respondents.

TRIMBLE, J.

Plaintiffs, as the persons desiring to send a dispatch over defendant's line from Mercer to Trenton, sue to recover the penalty of $300 under section 3330, R. S. Mo. 1909, for failure to transmit said message. I. E. Cribb, the father of plaintiffs, was seriously ill near Mercer, and Mack H. Cribb, one of the plaintiffs, sent a message to A. F. McCloud, the husband of his sister and coplaintiff, Katie McCloud, saying, "Come to-day." This message was sent Monday morning November 6, 1911, and was sent "collect"; A. F. McCloud paying for it when it was received in Trenton. In response to this message his wife, Katie McCloud, left Trenton and went to Mercer on the noon train of that day. Before leaving, she agreed with her husband that she would telegraph him to come to Mercer if her father died. Upon arriving at Mercer she met her brother, Mack H. Cribb, at one of the stores in town, and was informed that her father was dead. It was then about 2 o'clock in the afternoon, and, as they would have to see the undertaker and select a casket and then drive out to their father's residence as soon as possible, they sent the hired man, John Scott, to the depot to telegraph the husband, A. F. McCloud, to come, as the wife had agreed to do before she left Trenton. Scott went to the telegraph station and caused a telegram to be prepared on one of defendant's blanks addressed to A. F. McCloud, saying, "Come home to-night," and delivered it to a young man in the office who collected from him the 25 cents charges due for sending the message. Scott then reported to plaintiffs the message had been sent. The message was never sent, however, and McCloud did not come, and by reason of this fact was not enabled to be present at the funeral of the deceased. Result: This suit, in which the statutory penalty was recovered in the trial court, two-thirds of which was awarded to the plaintiffs and one-third to the county school fund of Grundy county.

The defendant does not deny that the telegram was prepared and left in the telegraph office, nor that the charges thereon were duly paid; and there is no dispute over the fact that the telegram was never sent. The contention is, however, that the man in the telegraph office, with whom Scott left the telegram and the money, was not the defendant's agent for receiving, transmitting, and delivering the message, and therefore defendant is not liable.

As this issue was submitted to the jury under proper instructions, and it found a verdict for plaintiffs, the point in the appellate court resolves itself into this question: Was there sufficient evidence to submit to the jury the question whether the man who received the massage, and who collected the charges due thereon for transmitting and delivering the message, was defendant's agent for that purpose?

According to Scott's testimony, when he appeared at the counter of the telegraph office, the regular operator, Shouse, was sitting at the table on which were the keys of the telegraph instruments, and a young man by the name of Cox was also in the office. When Scott announced that he desired to send a telegram, Cox arose, came to the counter, and handed Scott a regular telegraph blank. Whereupon Scott asked him to write it for him as Cox was a better scribe than he. Cox did so, and, when the telegram was completed to Scott's...