Wilkinson v. Western Union Telegraph Co.
| Decision Date | 25 March 1921 |
| Citation | 229 S.W. 817,206 Mo.App. 387 |
| Parties | TRENNA WILKINSON, Administratrix of the Estate of N. B. WILKINSON, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Howell County Circuit Court.--Hon E. P. Dorris, Judge.
AFFIRMED AND REMANDED (with directions).
Judgment affirmed and cause remanded.
Francis B. Stark, J. L. Van Wormer and Green & Green for appellant.
(1) This action is based upon penal statute and applied only to such cases as come clearly within its provision and manifest spirit and interest. The statute does not make a telegram company the insurer of the delivery of messages nor does it require it to employ extraordinary care and diligence to transmit and deliver the same, and the rule is that where there is a doubt such a statute ought not to be construed to inflict a penalty which the Legislature may not have intended. Eddington v. Western Union Telegraph Co., 11 Mo.App. 93, 98; Bradshaw v. Telegraph Co., 150 Mo.App. 711; Rixke v. Telegraph Co., 96 Mo.App. 406; Moore v. Western Union Telegraph Co., 164 Mo.App 165; Taylor v. Telegraph Co., 288. (2) A telegraph company has the right to fix reasonable office hours for the receipt and delivery of messages, and within which its business may be transacted. Taylor v. Telegraph Co., supra. (3) Upon the testimony neither plaintiff or Miss Madrene were she plaintiff, would be entitled to recover, in this case, as the testimony of negligence is negative and the testimony of non-negligence is positive. Taylor v. Telegraph Co., supra; Rixke v. Telegraph Co., supra. (4) A telegraph company is not liable to the sender for failure to deliver a message unless it is charged with notice of his interest either from the message or otherwise. 6 Current Law, 1669; Towboat Co. v. Telegraph Co., 52 S.E. 766; Telegraph Co. v. Bell, 90 S.W. 714. (5) That the company owes a duty, incurs a liability to those parties only of whose interest it has notice and for those which it might reasonably anticipate. The pertinent cases fall into four classes: (1) Those which assert a duty and liability to the undisclosed principle of the sender. Millikin v. Western Union Telegraph Co., 110 N.Y. 403, 19 N.E. 251, 1 L.R.A. 281; Harkness v. Western Union Telegraph Co., 73 Iowa 190, 34 N.W. 811, 5 Am. St. Rep. 672; Leonard v. Telegraph Company, 41 N.Y. 544, 1 Am. St. Rep. 446; Cashion v. Western Union Telegraph Co., 124 N.C. 459, 32 S.E. 746, 45 L.R.A. 160; Western Union Telegraph Co. v. Morris, 28 C. C. A. 56, 83 F. 992; Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857, 16 Am. St. Rep. 920, L.R.A. 844; Western Union Telegraph Co. v. Brosche, 72 Tex. 654, 10 S.W. 734, 13 Am. St. Rep. 843; Western Union Telegraph Co. v. Church, 90 N.W. 878, 57 L.R.A. 905. (2) Those which recognize a duty and liability to a person who appears on the face of the telegram to be its beneficiary although neither its sender nor the addressee. Western Union Telegraph Co. v. Mellon, 96 Tenn. 66, 33 S.W. 725; Western Union Telegraph Co. v. Adams, 75 Tex. 531, 12 S.W. 857, 16 Am. St. Rep. 920, 6 L.R.A. 844; Telegraph Co. v. McKibben, 114 Ind. 511, 14 N.E. 894. (3) Those which deny any duty or liability to those who do not appear from the message to have any interest in it. McCormick v. Western Union Telegraph Co., 25 C. C. A. 35, 79 F. 449, 38 L.R.A. 684; Western Union Telegraph Co. v. Kirkpatrick, 76 Tex. 217, 218, 13 S.W. 70, 18 Am. St. Rep. 37; Western Union Telegraph Co. v. Carter, 85 Tex. 580, 22 S.W. 961, 34 Am. St. Rep. 826; Morrow v. Western Union Telegraph Co., 21 Ky. L. R. 1263, 54 S.W. 853. (4) The decision which denies any liability to the undisclosed principle of the addressee. Lee v. Western Union Telegraph Co., 51 Mo.App. 375.
John C. Dyott for respondent.
N. B. Wilkinson recovered a judgment for $ 300 against the defendant under section 3330, Revised Statutes of Missouri, 1909, the same being section 10136, Revised Statutes of 1909. While the cause was pending on appeal in this court he died, and suit was revived in the name of his administratrix.
Appellant assigned several errors. The three propositions submitted here arise under the assignment that the court should have directed a verdict at the close of the trial for the defendant. First, because the plaintiff had not offered any substantial evidence of an unreasonable delay in transmitting and delivering a message. Second, that there was no notice given as was required under the terms printed on the back of the telegram. Third, that N. B. Wilkinson was not a party who could recover in this case even though there was a delay in transmission and delivery on the part of the defendant. We will take these matters up in their order.
As there is a charge that the evidence fails to disclose any failure of duty on the part of the defendant in transmitting and delivering the message, it will be necessary to set out the evidence concerning the transaction. It appears from the record that N. B. Wilkinson was the father of Miss Madrene Wilkinson and also of Mrs. Bonita Fisher, and that on October 26, 1917, Miss Madrene was employed in a store in the city of Springfield, and was living at No. 739 West Elm Street, in said city; that Mrs. Bonita Fisher, who resides in Oklahoma, had been visiting her father, N. B. Wilkinson, who lived at Willow Springs, Mo., and was going back to her home in Oklahoma on a train which brought her to Springfield where she changed cars and continued on to her destination. We find that sometime in the afternoon of October 26, 1917, N. B. Wilkinson sent a telegram to his daughter Madrene at Springfield, informing her that Mrs. Fisher intended to go through Springfield on that evening and that she would arrive on train No. 104, reaching Springfield about 8:30 that evening. This telegram is not set out in the record and it is not shown by whom it was signed. After sending this telegram, Mrs. Fisher changed her mind and concluded to go on train 102, a later train, which would not reach Springfield until about seven or seven-thirty on the morning of October 27th. In order that Miss Madrene might be advised of the time when her sister would pass through Springfield, the father, N. B. Wilkinson, delivered to the Western Union Telegraph Company's agent in its office at Willow Springs, Missouri, paying the usual charge therefor, the following telegram, and the charge in the petition is that the defendant neglected to use diligence in transmitting and placing said message in the hands of Miss Madrene by the most direct means available promptly and with impartiality and in good faith. A copy of the telegram is as follows:
Springfield, Mo.
Will be there on 102 in the morning.
Bonita Fisher."
This message was not delivered to Miss Madrene until the morning of October 27th, about 9 o'clock. Miss Madrene was expecting her sister, Mrs. Bonita Fisher, to come through Springfield, and without getting this message went to the train and met her. It is shown that the message was deposited in defendant's office at Willow Springs about 8 o'clock P. M., October 26th, and that it was received in the Springfield office between 8 and 9 o'clock that same night. On the showing that the Springfield office was an all night office, maintaining messenger service upon to 12 o'clock midnight, that the addressee's home was within the delivery zone from said office in the city, that the message was received by defendant's office in Springfield between 8 and 9 o'clock in the evening and not delivered until about 9 o'clock the next morning, would, without more, make a primafacie case of a violation of the statute.
The defendant's evidence shows that the telegram, when it reached the office in Springfield was placed in the hands of a messenger boy who went to the residence where the addressee lived, that he found the number, knocked on the door and on the floor of the porch and that no one appeared to be at home, and there was no light in the house. It is also shown that later, between 10 and 11 o'clock, the message was again sent out for delivery by another messenger boy and that he found no one at this place to whom he could deliver this message, and that the customary notice was left at the door that a message had been received.
Miss Madrene, the addressee, and other witnesses for plaintiff, testified that it was on Halloween night and that she left the place where she was living between 7 and 8 o'clock in the evening and did not return until, she says, sometime after 11 o'clock that night. There are other witnesses who testified that they were in the house but that they heard no one knock on the door or cause any alarm on the front porch.
Under the evidence as to defendant's conduct, the case comes dangerously near falling within the rule announced in the case of Moore v. Telegraph Company, 164 Mo.App. 165 148 S.W. 157, which is that the use of ordinary care does not require the telegraph Company to carry a detective force as an adjunct to ferret out an addressee who could not be found by an ordinary messenger pursuing ordinary methods or reasonable diligence. Also, the further rule announced in the case of Taylor v. Telegraph Company, 181 Mo.App. 288, 299, 300, 168 S.W. 895; Rubeottom v. Western Union Telegraph Co., 194 Mo.App. 234, 240, 186 S.W. 749, which latter two cases announce the rule that although plaintiff had made a prima-facie case in matters of this character, when defendant has come forward with clear and unquestionable testimony, unsurrounded by suspicious circumstances or a doubt, showing that the...
To continue reading
Request your trial