Guest v. Hannibal & St. Joseph Railroad
1898 Mo. App. LEXIS 522
Mo. Ct. App.
1898
Check Treatment
Ellison, J.

Plaintiff was the owner of a piano which was destroyed by the burning of defendant’s depot where it was storеd preparatory to shipment. He brought this action for damages and lost his case in the trial cоurt. His chief complaint relates to the refusal of two instructions which he offered.

*260 Evidence: telephon;cconver-

*259It appeаrs that the piano was in Chillicothe, Missouri, in the hands of plaintiff’s agents. That desiring to ship the instrument to Burlington, Iowа, these Agents had it conveyed to the defendant’s depot in the *260former city by a drayman who delivered it to defendant’s agent properly directed ‍​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​‌​‌‌​​​‌​​‍but with the statement that plaintiff’s agents would give shipping ^ ° ^ . оrders. There is a telephone system m Chillicothe and the next day, one of the plaintiff’s agents (so thе evidence tended to show; called the central office over the wire and asked to be connected with defendant’s depot. That he was so connected and being answered that hе was talking with the agent, he gave orders for the shipment of the piano to Burlington and was answered that it would be done. There was evidence on behalf of defendant tending to prove that no such tеlephonic communication was made to their agent or his two assistants in charge of the deрot. Under this state of the evidence the plaintiff asked the following instruction which was refused:

“If the jury find from thе evidence there was a telephonic system in operation in the city of Chillicothe at the time of the delivery of the piano in question at defendant’s depot, with instruments in the offices of Miller Brоthers and of the defendant’s station agent; and that Prank Miller asked to be put in communication with the defendant’s agent’s office and was told he had been; and that he then inquired if it was the station agent and was answered that it was; and he then gave shipping instructions and was informed the piano would be sent, then thе communication, if any, which passed between Miller and the person at the station is competent evidence to be considered by the jury and the person answering at the station was presumptively the agent or some one authorized to answer.”

In our opinion the instruction should have beеn given. The instruction closed with the words: “and •plaintiff ‍​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​‌​‌‌​​​‌​​‍had a right to rely on them.” This was a useless and meaningless сlause which did not add to or *261substract anything from the meaning and no point is made on it here by either pаrty. We therefore consider the action of the court without reference to such clause.

It was determined by the St. Louis court of appeals, opinion by Thompson, J., in Globe Printing Co. v. Stahl, 23 Mo. App. 451, that cоnversations over a telephone were admissible in evidence though the voice of the рarty answering to the call was not ‍​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​‌​‌‌​​​‌​​‍recognized. This ruling was followed by the supreme court (though without refеrence to the case) in Wolfe v. Railway, 97 Mo. 473.

convention don astoan-

But it will be noticed that the refused instruction contains, at the close, a statement that the person answering to the call of plaintiff’s agent was defendant’s agent at the depot or some one authorized to answer for him. In view of the cases just cited it was perhaps on account of this that the trial court refused the instruction. We think, however, that the presumption exists and the jury should have been so informed. It is a rule of every day application in and out of court, that a person (even though non-official) performs a duty which is imposed upоn him. Lennox v. Harrison, 88 Mo. 496, and authority cited; State ex rel. v. Bank, 120 Mo. 161. So when plaintiff’s agent asked the central station of the telephone company to connect him with the defendant’s agent at the depot and he answered that he would аnd had done so, we must presume that he performed such duty.

We are, therefore,-brought to the question for decision, whether when one is connected by telephone wire with the place of business ‍​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​‌​‌‌​​​‌​​‍of one with whom he desires to converse and is answered by some one assuming to be such persоn, it will not be presumed that he *262is such person. We think such presumption ought to be allowed. If a letter is properly stamped, directed and deposited in the postoffice it is presumed to have bеen received by the party to whom addressed. And such presumption may sometimes overcomе a denial of receipt by the party addressed. Many illustrations, if it were necessary, might be given, as for instance identity of name is prima facie identity of person. But for a partial enumeration of these see Globe Printing Co. v. Stahl, supra, and Taylor v. Steamboat, 20 Mo. 254.

The other instruction refused was like the one just discussed except that it asserted that the defendant was estopped from denying that the person making such answer over the telephоne ‍​‌‌‌‌​‌‌​‌​‌‌‌​‌​​‌​​‌‌‌​‌‌‌​​​​​‌​‌​​‌​‌‌​​​‌​​‍was its agent. In other words, it asserted the proposition that defendant was responsible for the utterance of a cheat or imposter if made over its telephone. It was properly refused.

The instructions for defendant are not objectionable and were properly given, but for the error above noticed the judgment will be reversed and the cause remanded.

All concur.