Taylor v. Western Union Telegraph Company

• Decision Date: 23 May 1921
• Parties: JOHN D. TAYLOR, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant
• Court: Kansas Court of Appeals

231 S.W. 78

207 Mo.App. 145

JOHN D. TAYLOR, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 23, 1921

Appeal from the Circuit Court of Chariton County.--Hon. Fred Lamb Judge.

REVERSED.

Judgment reversed.

John D Taylor, pro se.

Francis R. Stark, New, Miller, Camack & Winger and Mahan, Smith & Mahan for appellant.

OPINION

TRIMBLE, P. J.

This suit was instituted June 3, 1919, to recover the $ 300 statutory penalty provided by section 3330, Revised Statutes 1909 (now Sec. 10, 136, R. S. 1919), for failure to promptly deliver a telegram alleged to have been sent by plaintiff from St. Louis, Missouri, to Keytesville, Missouri, 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 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 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 anyone 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 the 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 continual until midnight of July 31, 1919, as shown by the Act of Congress of July 11, 1919, 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. [Lawson on Presump. Evid 211-240; 22 C. J. 86; 22 Am. & Eng. Ency. of Law (2 Ed.), 1238.] However, if the fact that, the telegraph blanks made no mention of government...