Taylor v. Western Union Telegraph Co. , 107 Mo. App. 105 ( 1904 )

BLAND, P. J.

(after stating the facts.) — It seems to us that on all the evidence plaintiff should have been nonsuited. The statute on which the action is grounded is penal, and a case to be brought within its provisions should be clearly made out by the evidence. Plaintiff made a prima facie case by showing an unusual delay in the transmission of the message, but only a prima facie case. We think this was clearly and completely overturned by the uncontradicted testimony offered by defendant, some of which was documentary, that the delay was caused by a storm of sleet and wind which disabled its wires, and the defendant can not be held responsible for the wind and sleet storm. Plaintiff tried to shake this evidence by offering evidence in rebuttal but instead of doing so gave it additional strength. The statute (section 1255, R. S. 1899) being a penal one, the penalty should not be inflicted on the defendant unless it is shown by the evidence that after receiving the message and payment for its transmission, it failed to “promptly and with impartiality and good faith” transmit it. If the wire is engaged when a message is received, this fact is, under the statute, a sufficient excuse for not sending it promptly; a fortiori if the wire is down without any fault or negligence of the company, it is a good excuse for delay. The fact that the wire between St. Louis and Lebanon was down so that it could not be used, was shown by documentary evidence and by the evidence of two witnesses, and is uncontradicted. It further shows that Joslyn, as operator, showed no partiality, acted in good faith and was diligent in procuring the transmission of the message.

Judgment reversed.

Beyburn and Goode, JJ., concur.