Ward v. Western Union Telegraph Co.

• Decision Date: 11 January 1932
• Citation: 46 S.W.2d 268,226 Mo.App. 752
• Parties: EDGAR J. WARD, RESPONDENT, v. WESTERN UNION TELEGRAPH CO., APPELLANT
• Court: Kansas Court of Appeals

46 S.W.2d 268

226 Mo.App. 752

EDGAR J. WARD, RESPONDENT, v. WESTERN UNION TELEGRAPH CO., APPELLANT

Court of Appeals of Missouri, Kansas City

January 11, 1932

Appeal from the Circuit Court of Adair County.--Hon. J. A. Cooley Judge.

REVERSED.

Judgment reversed.

Roland A. Zeigee and Murrell & Murrell for respondent.

Fred S Hudson, Frederick E. Whitten, Winger Reeder and Barker Gumbiner & Hazard for appellant.

BOYER, C. Campbell, C., concurs.

OPINION

BOYER, C.

This is an action to recover the penalty imposed by section 10136, Revised Statutes 1919, for failure to transmit and deliver a telegraphic message. The case was tried before the court without a jury and the judgment was for the plaintiff. Defendant duly appealed and this court in an opinion rendered at its October, 1929, term reversed the judgment (22 S.W.2d 81). In review on certiorari, the Supreme Court quashed the opinion of this court by its decision rendered March 31, 1931, and reported in 39 S.W. (2d) 372. The case was again docketed for rehearing and resubmission at the October, 1931 term of this court, at which time the case was argued, and submitted upon new and additional briefs presented by both sides within the time allowed by the court.

The assignment of errors and points and authorities presented by appellant were rearranged, enlarged, and restated, and now include the new point that the petition does not state a cause of action. The main contention of appellant however, as stated by counsel in oral argument, and as shown by its original as well as by the new brief, is that the judgment is erroneous because plaintiff failed to show that the message was intrastate and clearly within the terms of the Missouri penal statute; that there was no evidence to support such a finding, but that under all the evidence the message was interstate and exempt from State regulation or penalty. A point originally made on the exclusion of evidence and which received attention in the first opinion is withdrawn. While the case appears in new habiliments, it is in substance the same as when first presented for determination at the trial and in this court. Under the pleadings and admissions, as stated by the Supreme Court in its opinion at page 373:

"The sole question for the trial court to determine was the character of the message. If the message was interstate commerce, plaintiff was not entitled to recover the penalty provided by the State law. . . . On the other hand, if the message was intrastate commerce, the State penal statute governs, and plaintiff would be entitled to recover the penalty provided by such statute because nondelivery of the message was admitted without offering any excuse therefor."

In view of the admissions in the answer, brief reference to the petition will suffice. It states that defendant was "engaged in the business of transmitting and delivering telegraphic messages, among other places, from the city of Kirksville to the city of Monroe, each of said cities being within the State of Missouri;" that a message was delivered to defendant's agent at its office in the city of Kirksville for transmission and delivery to one A. H. at Monroe City, and plaintiff paid the charge demanded therefor; that it became the duty of defendant to transmit said message and place same in the hands of the addressee; that the said addressee was at all times at Monroe City and by the exercise of ordinary care could have been found and the message delivered; that defendant did not transmit and deliver the message promptly and never did deliver same; that by virtue of the statutes of the State plaintiff is entitled to recover from the defendant for its wrongful act, failure and neglect in the sum of $ 300, for which sum and cost judgment was demanded.

The answer admits that defendant is a corporation engaged in the business of transmitting telegraphic messages among and between different points in the United States, and among others from the city of Kirksville to the city of Monroe in the State of Missouri; admits that plaintiff delivered to its agent at its office in the city of Kirksville, Missouri, for transmission and delivery a certain telegraphic message set forth in plaintiff's petition; admits that the message was not delivered to the addressee, and denies each and every other allegation in said petition. By way of an affirmative defense the answer sets forth "that said message was delivered to it at its office in Kirksville, Missouri, for transmission and delivery to the addressee therein named at Monroe City, Missouri; that at said time and for many months prior thereto and now the regular, prescribed, established, and observed routing for telegraphic messages between said points, Kirksville and Monroe City, Missouri, carried said messages out of Missouri into and through the State of Kansas before said message reached its destination, and for said reason said message became and was an interstate message when received at the defendant's office in Kirksville for transmission and delivery. That if said message had been transmitted and delivered to the address therein it would have passed over and along the following routing to-wit: From Kirksville, Missouri to St. Louis, Missouri, from St. Louis, Missouri to Kansas City, Missouri, from Kansas City, Missouri, it would have followed the line of the Missouri Pacific Railroad Company into and through various points in the State of Kansas, to St. Joseph, Missouri, over a Burlington wire to its destination, Monroe City, Missouri, and for said reason said message was an interstate message."

The answer further alleges that by the act of Congress approved June 18, 1910, and by supplemental acts, the congress of the United States assume charge of the regulation of interstate commerce by telegraph and conferred upon the Interstate Commerce Commission full power over all rates, penalties and practices of telegraph companies engaged in interstate commerce and by reason thereof the statute of Missouri providing a penalty for failure to transmit and deliver messages does not apply to interstate messages, but that such interstate communication is exempt from State regulation.

At the opening of the trial it was again admitted by counsel for defendant that the message was received, the charge paid, and that there was a failure to deliver the message; it was further admitted that the addressee was present at Monroe City. Counsel refused to admit a prima facie case or to admit that the message was intrastate. Upon the pleadings and the admissions plaintiff rested his case. Defendant proceeded to introduce evidence and offered one witness, the only one called by either side, and he testified to the following state of facts: That he was employed by the defendant; that he was the testing and regulating chief of the Kansas City office; that he had instructions for routing all messages, and that it was his duty to see that the circuits were made up in accordance with those instructions; that he knew of his own knowledge the routing of messages from various places in the State of Missouri, provided he knew the point and the railroad on which the point is located; that he occupied a similar capacity in 1925, when the message was received; that the telegraph lines of the Western Union usually follow railroad lines; that the Western Union did not have any wires in the State of Missouri, outside the city leads, except those that follow railroad lines. The witness then described the location and use of wires leading to and from Kirksville and Monroe City, and the relay stations for each point, they being St. Louis and Kansas City. He testified that at the time in question the route of a message from Kirksville for delivery to Monroe City would have been along the Wabash to St. Louis, then to Kansas City, and thence relayed over defendant's wires along the Missouri Pacific Railroad from Kansas City, through Leavenworth and Atchison, Kansas, to St. Joseph, Missouri, and thence along the Burlington to Monroe City, its destination. It was also shown by the evidence of this witness that defendant used the telegraph office at Monroe City located in the Burlington depot for the reason that it was more convenient for the delivery of messages and that same could be delivered with greater speed; that there was a telegraph office at the Wabash depot in Monroe City which was not used because of its inconvenience and distance from the business part of the town, and for the reason that the amount of business in that town was too small to be divided between the two depots; that the practice of routing messages relayed through Kansas City to Monroe City and other points along the Burlington system near Monroe City, was established because of the fact that the company had a great many wires leading out of Kansas City to the north over the Missouri Pacific Railroad on the Kansas side of the Missouri river to St. Joseph, and greater speed and accuracy could be secured by using these wires; that this method of routing messages was in existence prior to and at the time the message in question was received; that the message in question and all messages from the small towns along the Wabash railroad were sent to St. Louis, and if they were to be delivered to towns near Kansas City, in Missouri, were relayed to Kansas City and then sent along wires to the point of destination from Kansas City; and that this was done for the reason that in the larger offices in Kansas City and St. Louis faster machinery and more expensive equipment were used to expedite traffic; and that in these large relay points defendant could better supervise its circuits, maintain higher speed in transmission, and a greater degree of accuracy; that as many as a dozen...