Moran v. Western Union Telegraph Company

• Decision Date: 05 January 1915
• Parties: J. W. MORAN, Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Respondent
• Court: Missouri Court of Appeals

172 S.W. 433

186 Mo.App. 633

J. W. MORAN, Appellant, v. WESTERN UNION TELEGRAPH COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

January 5, 1915

December 9, 1914, Submitted on Briefs

Appeal from Montgomery Circuit Court.--Hon. James D. Barnett, Judge.

Judgment affirmed.

E Rosenberger & Son for appellant.

(1) It is the duty of a telegraph company which receives a message for transmission directed to an individual at one of its own stations to deliver that message to the person to whom it is addressed with reasonable diligence, and in good faith. That is a part of its contract implied by taking the message and receiving payment therefor. Hughlett v. Western Union Telegraph Co., 172 Mo.App. 272. (2) Section 3330, R. S 1909, providing for the infliction of a penalty on telegraph companies for failure to promptly deliver a telegram, etc being a penal statute, is to be strictly construed, and its operation is not to be extended beyond its necessary meaning, but this does not mean that its life and spirit are to be construed out of it by a strict adherence to its words. Elliott v. Western Union Telegraph Co., 175 Mo.App. 213. (3) The operator of a telegraph company is the agent of the company in receiving over a telephone a message to be transmitted by the company in the absence of any showing that the company forbade such practice, or that if it was forbidden the sender had notice of such regulation. Carland v. Western Union Telegraph Co., 76 N.W. 762. (4) Plaintiff is entitled to recover in this case. It clearly falls within the statute; the message was a prepaid message within the meaning of the law. Western Union Telegraph Company v. Henley, 60 N.E. 682.

Geo. H. Fearons and G. Pitman Smith for respondent.

(1) The message was not a prepaid message and was not paid for to Mr. Dickenhorst, manager, by Mr. Guinn, until some time later, and was not paid by Mr. Dickenhorst to the company until the first of the following month; and not being a prepaid message does not come within the provisions of section 3330, R. S. 1909, imposing a penalty for failure to promptly deliver a telegraphic message. Brockman Commission Co. v. W. U. Tel. Co., 163 S.W. 920; Naysep v. W. U. Tel. Co., 168 S.W. 259; Adcox v. Telegraph Co., 171 Mo.App. 331; Eddington v. Tel. Co., 115 Mo.App. 93; Wood v. Tel. Co., 59 Mo.App. 236; W. U. Tel. Co. v. Moosler, 95 Ind. 29; Langley v. Tel. Co., 88 Ga. 777; W. U. Tel. Co. v. Ryalls, 94 Ga. 336. (2) This statute is penal in its character and must be strictly construed; and plaintiff in order to recover must bring himself clearly within the terms and provisions thereof. Obviously, one who seeks to invoke the statute and recover such penalty must bring his case clearly within its terms. Brockman Commission Co. v. W. U. Tel. Co., 163 S.W. 920; Naysep v. W. U. Tel. Co., 168 S.W. 259; Adcox v. Tel. Co., 171 Mo.App. 331; McCloud v. Tel. Co., 170 Mo.App. 624; Grant v. Tel. Co., 154 Mo.App. 279; Bradshaw v. Tel. Co., 150 Mo.App. 711; Cowan v. Tel. Co., 149 Mo.App. 407; Eddington v. Tel. Co., 115 Mo.App. 93; Pollard v. Tel. Co., 114 Mo.App. 533.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--One J. W. Moran, plaintiff below, appellant here, living in the country, in Lincoln county, near Olney, sent his son to one Guinn, a merchant at Olney, who had a Bell telephone connection with Troy, in Lincoln county. The son desired to telephone a message to Montgomery City to one James Elder, but Guinn ascertained that the telephone line was not operating through to Montgomery and suggested that the message be telephoned to Troy and wired from there to Montgomery City. This was done and Guinn telephoned to the operator of the Western Union Telegraph Company at Troy, this message, directed to James Elder, Montgomery, Missouri: "Mother dead; funeral three o'clock. Telephone Dr. Mudd." (Signed.) "William Moran." At the same time Guinn, who had no official position with the Telegraph Company, told the telegraph operator at Troy, one Dickenhorst, that he wanted the message to go as a prepaid message. The telegraph operator at Troy accordingly transmitted it that day, that is to say, September 19, 1911, by the line of the Western Union Telegraph Company, to Montgomery City, and it appears that it was received at the telegraph office there at 8:42 a. m., on the 19th of September.

While this message was marked "Paid," there is no testimony that in point of fact anything was paid on it at the time the telegraph operator at Troy sent it forward. To the contrary, the telegraph operator testified that knowing Guinn, he trusted him to pay him for it, and this operator merely entered up a memorandum in his personal book of the fact that Guinn owed him twenty cents for this message, that being the usual and proper charge of the Telegraph Company for transmitting it from Troy to Montgomery City. It appears that the message was not delivered to Elder on the 19th and he did not hear of it until the 20th; that it was on that day telephoned to his residence from the Montgomery office, but it did not actually come into his hands, or into the hands of any member of his family until the following day, that is the 21st, too late for Elder or his family to attend the funeral of the lady referred to in the telegram, who it appears was a relative. It is asserted by learned counsel for appellant in his abstract that Moran's son paid Guinn the twenty-five cents as well as telephone charges at the time of...