Taylor v. Western Union Telegraph Co.
| Decision Date | 01 June 1914 |
| Citation | 168 S.W. 895,181 Mo.App. 288 |
| Parties | JOHN D. TAYLOR, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Chariton Circuit Court.--Hon. Fred Lamb, Judge.
REVERSED.
Judgment reversed.
Fred S Hudson for appellant.
(1) This being a penalty statute, it must receive strict construction and nothing taken by intendment, and plaintiff must bring himself fully within all the provisions of the statute before he can recover. Bradshaw v. Telegraph Co., 150 Mo.App. 711; Eddington v. Telegraph Co., 115 Mo.App. 93; Rixke v. Telegraph Co., 96 Mo.App. 406; Moore v. Telegraph Co., 164 Mo.App 165; Adcox v. Telegraph Co., 171 Mo.App. 331. (2) The telegraph company has fixed reasonable hours for the receipt and delivery of messages, and the question whether such regulation is reasonable or unreasonable is one of law for the court to declare. Western Union v. Love-Banks Co., 83 S.W. 494; Western Union v. Ford, 92 S.W. 529; Western Union v. May, 27 S.W. 760; Western Union v. Neel, 25 S.W. 15; Western Union v. Van Cleave, 54 S.W. 829; Western Union v Bibb, 136 Ky. 817. (3) Wire trouble is a valid excuse for not delivering a message promptly, and the company is not by law required to do impossible or unreasonable things on account of storms or other atmospheric conditions. Bierhaus v. Telegraph Co., 34 N.E. 585; Telegraph Co. v. Cohen, 73 Ga. 522; Beasley v. Telegraph Co., 39 F. 181. (4) The agent at the sending office is not bound to know the office hours at the receiving office. Jones on Telegraph and Telephone, Sec. 349; Sweet v. Postal Telegraph & Cable Co., 47 A. 882; Western Union v. McConnico, 54 S.W. 595.
John D. Taylor for respondent.
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, twenty-five 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:
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 sometime between ten and eleven 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 four o'clock on Sunday afternoons, and did not open again till seven 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 seven 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 ten 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 twenty-five 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, Illinois, 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 four 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 six 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 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 log book 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 log book further showed notations of storms, lightning, rain and consequent wire trouble at later hours. His records also showed that at 8:05 he called Laclede over the telephone and tried to get the message to Sumner. Laclede informed him that all telephone wires were down on account of a big fire. From 8:10 to 8:30 he was calling Brookfield and finally got Brookfield over the telephone but was advised by Brookfield that the telephone office at Sumner had closed for the night, and that nothing could be done. He thereupon notified the Salisbury office that the message "hung till morning; there was no way to move it." The telegram was then placed "on the wire" that is, put with others to be sent out from St. Louis the next morning.
When morning came and the day man in charge of that division came on duty at seven o'clock, the wire trouble caused by the Sunday night storms prevented the message being sent. After discovering the condition of the wires the operator called Carrollton and asked that office to help on the message. Between seven o'clock and 9:40 that morning the operator's log book showed fifteen calls made in the attempt to get the message through, but not until 9:40 did the wires get in working order, and at 10:10, thirty minutes later, the message was sent and delivered.
No testimony was introduced to contradict the foregoing, and after defendant's demurrer had been submitted and overruled, judgment was rendered for $ 300, the penalty provided in the statute.
The basis of the action is a statute which is highly penal and must be strictly construed "and applied only to such cases as come clearly within its provisions and manifest spirit and intent." [Eddington v. Western Union Tel. Co., 115 Mo.App. 93, l. c. 98; Bradshaw v. Telegraph Co., 150 Mo.App. 711, 131 S.W. 912; Rixke v. Telegraph Co., 96 Mo.App. 406, 70 S.W. 265.] The statute does not make a telegraph company an insurer of the delivery of messages nor does it require it to employ extraordinary care and diligence to transmit and deliver the same. [Moore v. Western Union Tel. Co., 164 Mo.App. 165, 148 S.W. 157.]
With this fundamental principle and consideration in mind, are the facts in this case such as to bring it clearly within the provisions and manifest spirit and intent of the statute?
It will be noticed that the message was handed to defendant's agent for transmission on Sunday after the Sunday office hours of Sumner had closed; that Sumner was a small place having but little business transacted at that office with an average of only one telegram per Sunday; that four o'clock on Sunday afternoon is not an unreasonable closing hour for an office of that size and volume of business. The company has a right to fix reasonable office hours for the receipt and delivery of messages, and the...
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