Taylor v. Western Union Telegraph Co.

Decision Date23 May 1921
Docket NumberNo. 13552.,13552.
Citation231 S.W. 78,207 Mo. App. 145
PartiesTAYLOR v. WESTERN UNION TELEGRAPH CO.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Action by John D. Taylor against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

Francis R. Stark, of New York City, New, Miller, Camack & Winge, of Kansas City, and Mahan, Smith & Mahan, of Hannibal, for appellant.

John D. Taylor, of Keytesville, for respondent.

TRIMBLE, P. J.

This suit was instituted June 3, 1919, to recover the $300 statutory penalty provided by section 3330, It S. 1909 (now section 10136, R. S. 1919), for failure to promptly deliver a telegram alleged to have been sent by plaintiff from St. Louis, Mo., to Keytesville, Mo., on the 6th day of April, 1919. The answer was a general denial, and it further set up as a defense that at the time the telegram was filed for transmission defendant was not in control and operation of its telegraph system, but that the same had been taken over, and was being operated, by the United States government under a resolution of Congress of July 16, 1918, a proclamation of the President, dated July 22, 1918, and an order of the Postmaster General, dated August 1, 1918, and that the business of receiving, transmitting, and delivering telegrams was under the direction, control, and operation of the United States, through its Postmaster General, and that the defendant did not undertake to receive, transmit, or deliver the telegram filed by plaintiff. The defendant demurred at the close of plaintiff's evidence, and again at the close of all the evidence, but was overruled, and judgment was rendered in the sum of $300, the statutory penalty, and from this judgment the defendant has appealed.

There is no contention made by respondent over the proposition that if, as a matter of fact, the defendant's telegraph system was in the hands of, and being operated by, the United States government on April 6, 1919, when the telegram was filed for transmission, then this suit, being against the defendant company itself, cannot be maintained. Respondent's position is that the blanks on which the telegram was sent had nothing on them to show that the government was in control or that any one other than the defendant itself was undertaking to contract in reference to the message, and that the defendant contented itself merely with showing that, under the joint resolution of Congress of July 16, 1918 (40 U. S. Stats. at Large, 904), the President's proclamation of July 22, 1918 (40 U. S. Stats. at Large, 1807), and the Postmaster General's announcement of August 1, 1918, the defendant's lines were taken charge of by, and were under control of, the United States government, its officers and agents, on and from midnight of July 31, 1918, but that there was no showing that such control continued and was in existence down to and on April 6, 1919, the date the telegram was filed for transmission. This contention concedes, in effect, that it was shown at the trial that government control was assumed on July 31, 1918, but it asserts that the burden was on defendant to show that such possession and control was in existence at the time the message was filed. It may be well to here observe that, as a matter of fact, such governmental possession and control continued until midnight of July 31, 1919, as shown by the Act of Congress of July 11, 1919, c. 10, 41 Stat. 157, repealing the joint resolution, which date of cessation of control was nearly four months after the filing of the message for transmission.

It would seem that, governmental control having been once shown to exist, that condition is presumed to have existed until the contrary is shown by the party disputing the continuance of the condition....

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9 cases
  • Adams v. Long & Turner Const. Co.
    • United States
    • Missouri Court of Appeals
    • 3 Marzo 1947
    ... ... Robert Klein, Terrell & Slaughter, Charles W. Hess and James W. Taylor for appellant ...         (1) Plaintiff was engaged in ... Ct. 868; Givens v. Zerbst, 255 U.S. 11, 41 S. Ct. 227; Taylor v. Western Union Telegraph Co., 207 Mo. App. 145, 231 S.W. 78; Executive Order 9240, ... ...
  • Preston v. Union Pacific Railroad Co.
    • United States
    • Missouri Supreme Court
    • 14 Marzo 1922
    ... ... Frank, 136 Md. 351, 110 A. 715; ... Kersten v. Hines, 283 Mo. 623, 223 S.W. 586; ... Taylor v. W. U. Tel. Co., 231 S.W. 78.] The ... proclamation referred to contained the following: ... ...
  • Adams v. Long
    • United States
    • Kansas Court of Appeals
    • 3 Marzo 1947
    ... ... Hess and ... James W. Taylor for appellant ...          (1) ... Plaintiff was engaged in ... Givens v. Zerbst, 255 U.S. 11, 41 S.Ct. 227; ... Taylor v. Western Union Telegraph Co., 207 Mo.App ... 145, 231 S.W. 78; Executive Order ... ...
  • Preston v. Union Pac. R. Co.
    • United States
    • Missouri Supreme Court
    • 14 Marzo 1922
    ... ... Frank, 136 Md. 351, 110 Atl. 715; Kersten v. Hines, 283 Mo. 623, 223 S. W. 586; Taylor v. W. U. Tel. Co., 207 Mo. App. 145, 231 S. W. 78. The proclamation referred to contained the ... ...
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