Thompson v. Western Union Telegraph Co.

• Decision Date: 29 October 1888
• Citation: 32 Mo.App. 191
• Parties: ELIZABETH THOMPSON, Executrix of WADDY THOMPSON, Deceased, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 191

ELIZABETH THOMPSON, Executrix of WADDY THOMPSON, Deceased, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Pettis Circuit Court. --HON. RICHARD FIELD, Judge.

REVERSED.

The case is stated in the opinion.

Charles E. Yeater, for the appellant.

(1) The contract for the transmission of the message, being entered into on Sunday, and the requirement of the same also being that it should be transmitted immediately on that day, was unless a work of necessity, void and a nullity, and the court erred in denying this proposition of law in the defendant's second instruction. R. S., secs. 1578, 1579; Bernard v. Lupping, 32 Mo. 431; Gwinn v. Simes, 61 Mo. 335; Luebbering v Oberkoetter, 1 Mo.App. 393; Guinn v. Railroad, 20 Mo.App. 453; Rogers v. Tel. Co., 78 Ind. 169; Shropshire v. Glasscock, 4 Mo. 536, 599; Downing v. Ringer, 7 Mo. 585; Bank v. Bank, 10 Mo. 123; State v. Bank, 45 Mo. 528. (2) The message being to request the attendance of the addressee at a business conference merely on the following day, which was chosen because preferable and more convenient only, was not a matter of necessity. Bucher v. Railroad, 131 Mass. 156; Day v. Railroad, 135 Mass. 113; Sherman &amp Redfield on Negligence, 605. (3) The law will not aid either party to an illegal transaction by implying from the circumstances or subject-matter of such transaction, any obligation on the part of either which it will enforce, but will leave them as it finds them. Ex terpi contractu non oritur actio. In pari delicto potior est conditio defendentis. Hayden v. Little, 35 Mo. 418; Gwinn v. Simes, 61 Mo. 339; Waterman v. Buckland, 1 Mo.App. 47. (4) The court erred in its refusal of defendant's fourth instruction, to the effect that if the information was false, but the agent did not know at the time of giving it that the same was false, or did not, although it was false, intentionally give it, the finding must be for defendant. Before there can be a liability for the statutory penalty by a telegraph company under section 885, Revised Statutes, 1879, for " intentionally giving false information," there must be comprised three elements: (1) The information given by the agent must be false; (2) the agent must know at the time of giving it that it is false and untrue, and he must give it in bad faith and with an intent to deceive the applicant to whom it is given; (3) it must be given with reference to the sending of a dispatch by the applicant and a contract therefor which is not prohibited or made illegal by law for any reason. So the court erred in giving plaintiff's first and second instructions because they did not properly thus define giving false information, and in refusing defendant's fourth instruction which did so properly explain and define. (5) The fact that defendant's agent could, by investigation, have ascertained that the message could not have been sent that night, although he innocently thought it could and told the plaintiff it could, when in fact, it was impossible to do so, might be sufficient to entitle plaintiff to a recovery in an action for damages, if any had been sustained; but would not be sufficient in this qui-tam action for a statutory penalty, because it is a quasi -criminal proceeding, in which the informer takes the place of the state, and the intent is the essence of the violation. The court erred in granting instructions for plaintiff and in refusing defendant's fourth instruction. Kreitzer v. Woodson, 19 Mo. 327; Howell v. Stewart, 54 Mo. 400; Fusz v. Spaunhorst, 67 Mo. 256; Manz v. Railroad, 87 Mo. 278; State v. Bryant, 90 Mo. 534; Sedgwick's Stat. & Const. Law, 233; Broadwell v. Conger, 22 N.J. Law, 210; United States v. Wiltberger, 5 Wheat. [U. S.] 76. (6) The plaintiff cannot recover, for by his contract he waived any claim against defendant growing out of the message in question, which was an unrepeated message, and the court erred in refusing defendant's third instruction. Wann v. Tel. Co., 37 Mo. 472. (7) The form of plaintiff's instructions was improper, and the court erred in giving them, because they are argumentative, discriminate as to the weight and sufficiency of the evidence, lay particular stress on a portion only of the facts involved, and are not given with reference to the whole case, and recite the evidence. (8) The verdict was plainly against the evidence, and the jury, in finding the same, were influenced by improper considerations. (9) Defendant's objection to the introduction of any evidence under the petition should have been sustained, for the reason that it does not state facts sufficient to constitute a cause of action, and the instruction in the nature of a demurrer to the evidence should have been given, and the court erred in overruling the one and refusing the other.

Bothwell & Jaynes, for the respondent.

(1) At common law, and under the statutes of Missouri, the making of a contract on Sunday is not prohibited, and a contract is not void or illegal because entered into on Sunday. Glover v Cheatham, 19 Mo.App. 656; Moore v. Clymer, 12 Mo.App. 14. (2) If the defendant had performed the contract after twelve p. m. Sunday, by sending and delivering the message on Monday morning before four a. m., there would have been no violation of the statute prohibiting labor on Sunday, etc. Guinn v. Railroad, 20 Mo.App. 453. (3) This case does not involve the enforcement of a contract made and to be performed on Sunday, but the suit was for the penalty, given by statute, for having intentionally given false information to plaintiff in relation to the time within which a dispatch could be sent. There may have been no obligation to do business or give information on Sunday, yet the statute clearly prohibited the intentional giving of false information on that day as well as on other days. The statute on which this suit was based is not repealed or impaired by the statute prohibiting labor on Sunday. Even if the defendant habitually disregards the " Sunday law," it has no right to disregard on that day the statutes regulating its business, so long as it undertakes to do business on that day. R. S., 1879, sec. 885. (4) There was no other issue raised by the pleadings or by the demurrer to the evidence, and there was no error in giving the plaintiff's instructions, as they correctly declare the law of the case. Even if the intent be of the essence of the violation, yet defendant cannot evade the penalty by having its agent or servant testify that he did not know that his statements and representations were false. It appearing that he made the representations deliberately, positively, and intentionally, professing to speak on his own knowledge, without any knowledge on the subject, the intent to deceive is inferred. The means of information being especially in defendant's servants and agents, failure to obtain correct information, and intentionally giving false information, made the misrepresentation wilful. 2 Hilliard on Torts [3 Ed.] pp. 12, 13, 14, 16, secs. 9, 10, 11. (5) All statutes must have a reasonable construction, such as will not defeat the plain intention of the legislature. Although a statute provide a penalty, yet, if it be beneficial generally, it...