State ex rel. Ward v. Trimble

• Citation: 39 S.W.2d 372,327 Mo. 773
• Decision Date: 21 May 1931
• Docket Number: 30197
• Parties: The State ex rel. Edgar J. Ward v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals
• Court: United States State Supreme Court of Missouri

39 S.W.2d 372

327 Mo. 773

The State ex rel. Edgar J. Ward v. Francis H. Trimble et al., Judges of Kansas City Court of Appeals

No. 30197

Supreme Court of Missouri

May 21, 1931

Rehearing Overruled May 21, 1931.

Certiorari to Kansas City Court of Appeals; Opinion filed at October Term, 1930, March 31, 1931; motion for rehearing overruled at April Term, May 21, 1931.

Opinion quashed.

Roland A. Zeigel and Murrell & Murrell for relator.

(1) The opinion of the Court of Appeals is in conflict with the rule and holdings announced in the cases of Koller v. Shannon County, 19 S.W.2d 865; Mo. Lumber & Mining Co. v Hassell, 298 S.W. 47; R. S. 1919, sec. 1402; Sutter v. Raeder, 149 Mo. 307; Bond v. Williams, 279 Mo. 227; Griffith v. Casualty Co., 299 Mo. 426; Downs v. Horton, 287 Mo. 414; Mezeworth v Metropolitan Life, 249 S.W. 113; Mason v. Geist, 263 S.W. 236; Kenefick-Hammond Co. v. Fire Ins. Soc., 205 Mo. 312; Pierce v. Shapleigh Hdw. Co., 14 S.W.2d 513; Bond v. Ry. Co., 288 S.W. 777. (2) If the opinion of the Court of Appeals violates legal principles it should be quashed. State v. Reynolds, 286 Mo. 204; State v. Reynolds, 226 S.W. 550. (3) An opinion of the Court of Appeals will be quashed if in conflict with the decisions of the Supreme Court of Missouri, notwith-standing the relator has not urged it. State v. Ellison, 273 Mo. 218; State v. Trimble, 300 Mo. 92; State v. Trimble, 271 S.W. 43.

Fred S. Hudson and Frederick E. Whitten for respondents.

Petitioner seeks to justify his position by assuming that the trial court must have disbelieved the only evidence in the case, namely, that the message was interstate because of the routing. There is nothing in the record upon which he can base this assumption, and we therefore call the court's attention to the established doctrine in Missouri, that where there is no conflicting testimony in a particular matter, the court is not privileged to disbelieve the only evidence in the case. It is a recognized principle of law that any verdict or judgment that is not sustained by substantial evidence should be reversed or set aside. Had there been conflicting evidence in this case, and if there was any evidence at all, however slight, if it could be termed substantial, then the appellate court should not disturb the finding, but as in this case there was no evidence offered to show that the message was intrastate; there was nothing substantial on which the judgment could be based. Downs v. Horton, 287 Mo. 426.

OPINION

Frank, J.

Original proceedings in this court to review, on certiorari, the opinion and judgment of the Kansas City Court of Appeals in the case of Edgar J. Ward v. Western Union Telegraph Company, an action by Ward, as plaintiff, against said Telegraph Company, to recover the penalty provided by Section 10136, Revised Statutes 1919, for failure to transmit and deliver a telegraphic message. The trial below resulted in a judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, where said judgment was reversed.

The action was based on a message which the defendant accepted from plaintiff at its office in Kirksville, Missouri, for transmission and delivery at Monroe City, Missouri.

The petition stated a cause of action. Its sufficiency was not questioned in the Court of Appeals and is not challenged here. The answer admitted that defendant is and was a corporation engaged in the business of transmitting and delivering telegraphic messages between different points in the United States, among others from Kirksville, Missouri, to Monroe City, Missouri; admitted that the message in question was delivered to defendant for transmission and delivery; admitted that such message was not delivered, and denied generally each and every other allegation in the petition. As an affirmative defense, the answer alleged that said message was received by defendant at Kirksville, Missouri, for transmission and delivery to the addressee at Monroe City, Missouri; that at said time and for many months prior thereto, the regular, prescribed, established and observed routing of telegraphic messages between Kirksville and Monroe City, Missouri, carried said message out of Missouri, into and through the State of Kansas before its destination was reached, and for that reason it became and was an interstate message when received by defendant at its office in Kirksville, Missouri, for transmission and delivery. The answer further alleged that if such message had been transmitted and delivered it would have traversed a line from Kirksville, Missouri, to St. Louis, Missouri, from St. Louis to Kansas City, Missouri, from Kansas City over the line of the Missouri Pacific Railroad Company into and through various points in the State of Kansas to St. Joseph, Missouri, over a Burlington wire to its destination at Monroe City, Missouri.

In view of the admission in defendant's answer that the message was accepted for transmission and delivery but was not delivered, the sole question for the trial court to determine was the character of the message. If the message was interstate commerce plaintiff was not entitled to recover the penalty provided by the state law. Congress by the Act June 18, 1910, Ch. 309, Section 7, 36 U.S. Stat. at Large, 544, Comp. Stat. 1913, Section 8563, placed telegraph companies under the legislation governing interstate commerce, thereby occupying the entire field of interstate commerce by telegraph and superseding all penal state statutes on that subject. [Adams Express Co. v. Croninger, 226 U.S. 491, 57 L.Ed. 314; Davis v. Western Union Telegraph Co., 198 Mo.App. 692, 698, 202 S.W. 292 and cases cited.] On the other hand, if the message was intrastate commerce the state penal statute governs and plaintiff would be entitled to recover the penalty provided by such statute because non-delivery of the message was admitted without offering any excuse therefor.

The case was tried to the court without the aid of a jury, no declarations of law were asked or given and no finding of facts was requested or made. In this situation, the judgment of the trial court should be upheld if there is any substantial evidence to support it. We have so held in many decisions, among which are the following: Koller v. Shannon County, 19 S.W.2d 865; Missouri Lumber & Mining Co. v. Hassell, 298 S.W. 47, 50; Mathis v. Melton, 293 Mo. 134, 238 S.W. 806; Sutter v. Raeder, 149 Mo. 297, 307, 50 S.W. 813; Bond v. Williams, 279 Mo. 215, 214 S.W. 202.

Our only task in this certiorari proceeding is to ascertain whether or not the judgment is supported by any substantial evidence. If it is, then the opinion of the Court of Appeals reversing it, conflicts with our decisions in the cases last above cited. In determining this question we cannot look beyond the opinion of the Court of Appeals for the evidentiary facts. Turning to that opinion we find that aside from the admission in defendant's answer to which we have heretofore called attention, the evidence consisted of the testimony of one witness. The opinion recites the evidence of that witness in the following language:

"Only one witness was introduced and that for defendant, one Joe Tyler who testified he was and for a number of years had been in the employ of defendant in the capacity of 'Testing and Regularity Chief' of defendant's Kansas City office; that in such capacity it is his duty to see that the wire circuits over which messages are sent are made up in accordance with instructions furnished the Kansas City office from the head office of the company in New York. He stated he had all the instructions for routing messages and that it is his duty to see that the circuits are made up accordingly.

"Defendant's first assignment of error is directed to the cross-examination of this witness. Plaintiff's counsel had asked the witness if it was a fact that, regardless of what town in Missouri the addressee lived in, the policy of defendant was to route messages out of the State of Missouri. Defendant's counsel objected upon the theory that it was immaterial. The objection was overruled. Plaintiff's counsel then asked the witness if it was not a fact that every message sent to Kansas City to be relayed from St. Louis entered Kansas and returned to Missouri. No objection was offered and witness answered 'No.' It is defendant's position that this line of cross-examination implied, by insinuation, that such a routing of messages was made to avoid the penalty statute in Missouri, and that defendant was within its rights in clarifying the situation by re-direct examination. In this attempt the following occurred:

"'Q. Now, I will ask you this question, if you know: Was the route through which this message would have gone from Kansas City, Missouri, up to St. Joe, as you have designated, over the Missouri Pacific lines through Kansas, was that route made, if you know, by the Western Union, or anyone in their behalf, with the idea of avoiding the effect of the penalty statute of Missouri?'"

The opinion shows that an objection was sustained to the latter question and the question was not answered. While this question assumes that the witness had theretofore testified that if the message had been transmitted it would have traversed an interstate route, the assumption of counsel in a question that was not answered is not evidence. We have set out the entire evidence of this witness. He was the only witness in the case. The witness did not testify that defendant had an interstate route over which the message could have been transmitted or that the message would have traversed an interstate route if it had been transmitted. Neither is there a statement in the opinion to the effect that there was evidence tending to show such facts. It...