Wilkinson v. Western Union Telegraph Co.

• Decision Date: 01 April 1912
• Citation: 145 S.W. 520
• Parties: WILKINSON v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

145 S.W. 520

WILKINSON v. WESTERN UNION TELEGRAPH CO.

Springfield Court of Appeals. Missouri.

April 1, 1912.

1. TELEGRAPHS AND TELEPHONES (§ 78)— PENAL STATUTES—CONSTRUCTION.

The statute imposing a penalty on a telegraph company for its failure to transmit and deliver messages promptly is a penal statute and must be strictly construed, and a party, to recover, must allege and prove that a message was delivered to an agent of the telegraph company at its office and that the charges were prepaid.

2. TELEGRAPHS AND TELEPHONES (§ 78)— DELAY IN DELIVERY OF MESSAGES—PENALTIES—EVIDENCE.

In an action against a telegraph company for the penalty imposed for failure to deliver a message promptly, evidence held to support a finding that the message was delivered to an agent of the company at its office and that the charges were prepaid.

3. APPEAL AND ERROR (§ 204)—QUESTIONS REVIEWABLE—RULINGS ON EVIDENCE.

A defendant, who permits without objection the admission of the testimony of a witness, and who cross-examines the witness fully, may not urge on appeal that the testimony is incompetent.

4. APPEAL AND ERROR (§ 995) — REVIEW — EVIDENCE—WEIGHT.

Testimony received without objection on an issue of fact may properly be considered by the court trying the case without a jury, and the weight thereof is for the court.

5. APPEAL AND ERROR (§ 1010)—FINDINGS—CONCLUSIVENESS.

A finding supported by evidence is conclusive on appeal.

6. TELEGRAPHS AND TELEPHONES (§ 78) — PENALTIES—JUDGMENT—REQUISITES.

A judgment against a telegraph company for the penalty imposed for failure to deliver a message promptly must award one-third thereof to the school fund.

Appeal from Circuit Court, Howell County; W. N. Evans, Judge.

Action by N. B. Wilkinson against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Corrected and affirmed.

Geo. H. Fearons, of New York City, and Green & Wayland, of West Plains, for appellant. N. B. Wilkinson, of Willow Springs, pro se.

COX, J.

Action to recover statutory penalty for failure to send and deliver a telegram. Judgment for plaintiff, and defendant has appealed.

The contention of appellant is that the facts proven do not make out a case against defendant as pleaded in the petition. The charging part of the petition is as follows: "That on the 7th day of September, 1910, plaintiff delivered to an agent of defendant at one of its offices at the railroad depot in Reynolds county, Mo., to wit, Corridon, a message addressed to a liveryman at Van Buren, Mo., and paid such agent of defendant the sum of 65 cents, which was the price stated by such agent as the legal charge for conveying such message between such two points. That such message was immediately transmitted by such agent from Corridon to Leeper, a railroad station on the Iron Mountain Road in Missouri, to an agent of defendant at its office in such place." Then follows an allegation of negligence in transmitting and delivering the message.

The evidence tended to prove the following state of facts: On September 8, 1910, plaintiff went into an office of the Missouri Southern Railroad at Corridon, Mo., and inquired if the Western Union had an office there. The man in charge answered that it did, but they had to use the phone to Leeper. Plaintiff then asked for a blank, and was handed a Western Union blank. He then prepared and had sent the following message: "To liveryman, Van Buren via Chickopee, Missouri. Meet me at Boyd's Crossing 3 o'clock to-day. N. B. Wilkinson." The agent at Corridon then picked up the phone and called "Western Union." An answer was received, and the above message was phoned to Leeper and repeated. Sixty-five cents, the full rate for sending the message to Van Buren, was paid. This occurred between 9:20 and 9:40 a. m. The distance from Corridon to Leeper is 45 miles, and from Leeper to Van Buren by a route followed by telegraph lines is 51 miles. When the message reached the agent of defendant at Leeper, it was marked "paid" by him and was received as a paid message. Van Buren is within...