Taylor v. Western Union Telegraph Co.

• Decision Date: 01 June 1914
• Docket Number: No. 11077.,11077.
• Citation: 168 S.W. 895,181 Mo. App. 288
• Parties: TAYLOR v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

168 S.W. 895

181 Mo. A. 288

TAYLOR v. WESTERN UNION TELEGRAPH CO.

No. 11077.

Kansas City Court of Appeals. Missouri.

June 1, 1914.

Rehearing Denied July 6, 1914.

1. TELEGRAPHS AND TELEPHONES (§ 37)— PENALTIES FOR DELAY IN TRANSMISSION AND DELIVERY OF MESSAGES—STATUTES—CONSTRUCTION.

Rev. St. 1909, § 3330, subjecting telegraph companies to a penalty for every neglect to promptly transmit and deliver messages, is highly penal, and must be strictly construed, and does not make a telegraph company an insurer of the delivery of messages, nor require it to employ extraordinary care and diligence to transmit and deliver the same.

2. TELEGRAPHS AND TELEPHONES (§ 37) — REGULATION OF BUSINESS—REASONABLE OFFICE HOURS.

A telegraph company may fix reasonable office hours for the receipt and delivery of messages, with reference to the quantity of business done at the office, and whether office hours are reasonable is for the court.

3. TELEGRAPHS AND TELEPHONES (§ 37)— REGULATION OF BUSINESS—REASONABLE OFFICE HOURS.

A telegraph company may fix 4 o'clock p. m. as the Sunday closing hour of a telegraph office located in a small place with an average of only one message per Sunday, and the company is not liable for failure to deliver a message received after the closing hour.

4. TELEGRAPHS AND TELEPHONES (§ 37)— REGULATION OF BUSINESS—REASONABE OFFICE HOURS.

Where an agent receiving at 5:42 p. m. a message for delivery to an office closed at 4 p. m. did not know of the closing hour of the terminal office and merely contracted for the transmission and delivery of the message according to the rules of the company, the company was not liable for delay in the delivery of the message based on the receiving agent's failure to notify the sender of the closing hour of the terminal office.

5. TELEGRAPHS AND TELEPHONES (§ 37) — REGULATION OF BUSINESS—REASONABE OFFICE HOURS.

It is not the duty of operators at any receiving office of a telegraph company to know the hours of any other office, and the failure of a receiving operator to notify the sender of the closing hour of the terminal office is not negligence for which the company can be held liable.

6. TELEGRAPHS AND TELEPHONES (§ 38) — REGULATION OF BUSINESS — REASONABLE OFFICE HOURS.

Where a sender of a message was warned that the terminal office would likely be closed and thereafter made an ordinary contract for the transmission and delivery of a message according to the rules of the company, and the terminal office was under the rules closed at the time, the company was not liable for the failure of the sending operator to ascertain whether the terminal office was closed and inform the sender of the fact before accepting the message for transmission.

7. TELEGRAPHS AND TELEPHONES (§ 78)—DELAY IN DELIVERY OF MESSAGES—EVIDENCE.

A message was handed in at 5:42 in the afternoon for transmission to an office which had closed at 4 p. m. and which did not open until 7 a. m. It was received at the terminal office at 10:10 a. m. Storm conditions during the night, commencing at 6:15 p. m., put the wires out of service; but the sending operator had no knowledge of wire trouble when he took the message. Held, that the telegraph company was as a matter of law not guilty of any delay in transmitting the message and was not liable to the penalty imposed by Rev. St. 1909, § 3330.

8. TELEGRAPHS AND TELEPHONES (§ 78)—DELAY IN DELIVERY OF MESSAGES—PRESUMPTIONS—BURDEN OF PROOF.

A plaintiff suing a telegraph company for the penalty prescribed by Rev. St. 1909, § 3330, for failure to promptly deliver a message, has the burden of proof throughout the trial, and makes a prima facie case by proving a contract for transmission and an unreasonable and unexplained delay; but, where the company then satisfactorily explains the delay and shows that it was not culpable, plaintiff then to make out a case must contradict the explanation.

9. TELEGRAPHS AND TELEPHONES (§ 78)—DELAY IN DELIVERY OF MESSAGES—EVIDENCE.

Where in an action against a telegraph company for the penalty imposed by Rev. St. 1909, § 3330, for failing to promptly transmit a message, the company showed by undisputed evidence that the delay was caused by storm and atmospheric conditions, and plaintiff offered no evidence to contradict it, the case of plaintiff, resting on the presumption of liability by mere proof of contract for transmission and unreasonable delay in delivery, was as a matter of law overcome, and the company was not liable.

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

Action by John D. Taylor against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Fred S. Hudson, of Chillicothe, for appellant. John D. Taylor, of Keytesville, for respondent

TRIMBLE, J.

This is an action to enforce the penalty prescribed by section 3330, R. S. Mo. 1909, for failure to promptly transmit and deliver a telegram. A jury was waived and the case tried by the court. Defendant demurred to the evidence at the close of the case. This was overruled and judgment rendered for the penalty. Defendant appealed.

Plaintiff, desiring to send a message to Sumner, 25 miles away, went in company with C. M. Hopper, a merchant of Sumner, to defendant's station in Salisbury at 5:34 p. m. Sunday, August 25, 1912, and delivered to the agent the following telegram:

                              "Salisbury, Missouri, 8-25-1912
                  "C. W. Northcutt, Sumner, Missouri. Send
                proof of publication to Keytesville to-night
                without fail.             John D. Taylor."
                

At the time of so doing, Mr. Taylor inquired of the agent the charges thereon and paid them. He also told the agent that the message was important and to be sure to get it out, to which the agent replied, "All right."

The message was not delivered to the addressee until some time between 10 and 11 o'clock Monday morning, the next day. Sumner, the destination of the telegram, is a town of from 300 to 500 inhabitants, and defendant's business at that point amounts to $11 or $12 per month with an average of one telegram received on Sunday. The telegraph office closed at 4 o'clock on Sunday afternoons, and did not open again till 7 o'clock the next morning.

Defendant's contention is that, as the telegram was not received for transmission until more than one hour and a half after the Sumner office had closed, defendant is not liable for the failure to transmit the telegram before 7 o'clock Monday morning, and that it is not liable for any delay occurring after that time because, owing to storms and bad atmospheric and weather conditions during Sunday night, the wires were put out of service, and connection could not be made with the Sumner office until after 10 o'clock Monday morning, and that in a few minutes after the wire trouble was overcome the message was sent through to Sumner and delivered.

While Sumner is only 25 miles from Salisbury, yet telegraphic connection between them is not direct; that is, there is no telegraph line running from Salisbury direct to Sumner. The message either had to be sent to Kansas City and from there relayed to St. Louis, and thence by way of Jacksonville, Ill., and Keokuk, to Sumner, or started from Salisbury by way of Moberly to St. Louis and thence relayed, as before, to Sumner. There was no direct line from Kansas City to Sumner or from St. Louis to Sumner.

Plaintiff proved the delivery and receipt of the telegram at Salisbury for transmission at 5:42 Sunday afternoon, the payment of the charges thereon with notice of the fact that the message was important, and the unreasonable lapse of time before delivery to the addressee. Plaintiff then rested.

Defendant then offered testimony showing that office hours at Sumner closed at 4 o'clock Sunday afternoons; that Sumner was a small place and that on an average only one telegram per Sunday was received there; that within three minutes after receiving the telegram for transmission the agent at Salisbury sent it to Moberly to be sent to St. Louis and thence relayed to Sumner.

The agent testified that at the time he received the telegram from plaintiff he did not know of any wire trouble, but, immediately after sending the message to Moberly, he learned that west of Salisbury—that is, between Salisbury and Kansas City—he learned the wire was "open," i. e., was not working and messages could not be sent over it. Defendant's testimony showed further that it made no difference whether the message started by way of Kansas City or by way of Moberly, as transmission is an instantaneous matter, when connection is obtained, without regard to distance, but that, as the "wire was open west," it was better service to send it to St. Louis by way of Moberly than to do so by way of Kansas City. Defendant's testimony further showed, by records kept at the time, that the telegram was received at St. Louis at 5:42. As soon as it was received at St. Louis, the operator in charge of that division tried to send it to Sumner over the regular route, but was unable to do so. He kept calling Sumner for some time, but was unable to get any response. He realized that Sumner was one of the early closing offices, but at 6 o'clock attempted to send the message around by way of Centerville, Iowa. At 6:15 he became convinced or learned of wire trouble on the line by which Sumner was reached, and at that hour tried to send the message by way of Keokuk, Iowa, but, as that office was on the same circuit as Centerville, it could not help him get it through. He then tried other routes, but without avail. He tried to telephone it through by way of Brookfield, Laclede, and other possible points, but was unable to do so. This operator was on duty from 5:30 p. m. that day until 2 a. m. His logbook kept at the time was introduced, and it showed wire trouble on the route to Sumner, noted first at 6:15, at which time he tried to get the message through by way of Keokuk. The logbook further showed notations...