Wagner v. Western Union Telegraph Co.

• Decision Date: 03 January 1911
• Citation: 152 Mo. App. 369,133 S.W. 91
• Parties: WAGNER v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

133 S.W. 91

152 Mo. A. 369

WAGNER v. WESTERN UNION TELEGRAPH CO.

Springfield Court of Appeals. Missouri.

January 3, 1911.

1. TELEGRAPHS AND TELEPHONES (§ 78) — STATUTORY PROVISION—CONSTRUCTION.

Rev. St. 1909, § 3330, prescribing a penalty against telegraph and telephone companies for failing to diligently transmit and deliver messages, being penal, must be strictly construed, and applies only to such cases as fall within the reasonable meaning of its terms and within its spirit.

2. COURTS (§ 8) — EXTRATERRITORIAL FORCE OF STATUTE.

A statute can have no extraterritorial force.

3. STATUTES (§ 212) — CONSTRUCTION — PRESUMPTIONS.

The Legislature must be presumed not to intend to exceed its jurisdiction in enacting a statute, nor design it to operate beyond the state.

4. TELEGRAPHS AND TELEPHONES (§ 78) — STATUTORY REGULATION — CONSTRUCTION— EXTRATERRITORIAL FORCE.

Rev. St. 1909, § 3330, requiring telegraph and telephone companies operating in the state to provide sufficient facilities, to receive dispatches from and for other lines and individuals, and to diligently transmit and deliver messages, on payment or tender of the usual charges, and imposing a penalty, refers to facilities at offices within the state, to messages delivered at such offices, and to transactions within the state; but the statute applies to a message delivered to a company at one point in the state for transmission to another, though the message be originally sent by another medium from a place in another state.

5. TELEGRAPHS AND TELEPHONES (§ 78) — STATUTORY PENALTIES—LIABILITY FOR.

A telegraph company is not liable for the penalty prescribed by Rev. St. 1909, § 3330, for failing to diligently transmit and deliver a message, unless the sender paid or tendered the usual charges, as provided for by that section.

6. TELEGRAPHS AND TELEPHONES (§ 78) — STATUTORY REGULATIONS — EFFECT OF AMENDMENT.

The amendment in 1907 of the statute now embodied in Rev. St. 1909, § 3330, so as to require telegraph companies to diligently "transmit and deliver" messages, instead of merely to diligently "transmit" them, does not authorize recovery of the penalty prescribed by that section for failing to deliver a message sent from another state under a contract made there.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Ed. Wagner against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed.

Geo. H. Fearons, Ferriss, Zumbalen & Ferriss, and W. R. Self, for appellant. J. W. Farris, for respondent.

GRAY, J.

This suit was instituted by the respondent to recover from the appellant the penalty provided by section 3330, Rev. St. 1909. The petition alleges: "Plaintiff for his cause of action states to the court: That the defendant, the Western Union Telegraph Company, is a corporation duly organized under the laws of the state of Missouri, and doing a general telegraph business within said state, and in the state of Kansas. That the plaintiff is a resident of said state of Missouri, and on or about the 8th day of May, 1908, he delivered to the said defendant at Burton, Kan., a message and paid the usual charges for the transmission and delivery of the same, and directed the operator and servant of the said defendant to transmit the same to Conway, Mo., and deliver the same to the addressee, as follows, to wit: `Burton, Ks. 5-8-1908. E. W. Cook, Conway, Mo., Will arrive on train eight, tonight. Ed Wagner.' That said message was transmitted to Conway, Mo., during the afternoon of that day; but the defendant, by its agents and servants, failed, refused, and neglected to deliver the said message to the addressee promptly, impartially, and in good faith." The defendant demurred to the petition: First, on the general ground that it did not state facts sufficient to constitute a cause of action; second, on the particular ground that the petition showed the contract for the transmission of the telegram was entered into in the state of Kansas, and not in the state of Missouri. The demurrer was overruled, and the defendant answered. The trial resulted in a judgment in favor of the plaintiff, and the defendant appealed.

The first question to be determined is: Does the statute authorize the collection of the penalty for a failure to deliver a message sent from an office out of this state to an office in this state? The statute reads: "It shall be the duty of every telegraph or telephone company, incorporated or unincorporated, operating any telephone or telegraph line in this state, to provide sufficient facilities at all its offices for the dispatch of the business of the public, to receive dispatches from and for other telephone or telegraph lines and from or for any individual, and on payment or tender of their usual charges for transmitting and delivering dispatches as established by the rules and regulations of such telephone or telegraph lines, to transmit and deliver the same to designated address and to use due diligence to place said dispatch in the hands of the addressee, by the most direct means available, without material alterations, promptly, and with impartiality and good faith."

The statute is penal and must be strictly construed, and "no case shall be held to fall within it which does not fall both within the reasonable meaning of its terms, and within the spirit and scope of its enactment." Connell v. Telegraph Co., 108 Mo. 459, 18 S. W. 883; Cowan v. Telegraph Co., 129 S. W....