199 Mo. App. 624 | Mo. Ct. App. | 1918
This is a suit to recover the penalty provided by section 3330, Revised Statutes 1909. The case was tried by the court without the aid of a jury and there being a judgment for plaintiff, defendant has appealed.
Plaintiff, at 6:25 A. M. of August 7, 1917, delivered to the defendant at its office in Kansas City, Missouri, a telegram addressed to Roy McKittrick, at Triplett, Missouri. The message was not delivered until 11:42 A. M. of the same day, to plaintiff’s injury.
Plaintiff’s evidence tended to show that there was a Western Union wire running from Kansas City to Brunswick, Missouri, and one from Brunswick to Triplett; that a message could be sent,from Kansas City to Brunswick; that the operator at Brunswick could turn around in his chair and telegraph the message from Brunswick to Triplett, and that a message could also be sent from Kansas City to Chillieothe, Missouri, and from there telegraphed to Triplett. The distance from Kansas City to Brunswick is between ninety and ninety-two miles and from Brunswick to Triplett about seven miles. It is about two hundred miles from Triplett to Omaha and more than two hundred miles from Kansas City to Omaha. While the evidence shows that the route from Kansas City through Omaha to Triplett is longer than the one through Brunswick or Chillicothe to Triplett, the undisputed evidence shows that it does not take any longer to send a message a long distance than it does a short one. The company maintained several wires between Kansas City and Omaha and one wire from Omaha to Triplett.
Defendant urges that the message was interstate commerce and therefore not subject to the regulations of this State. Plaintiff urges that it would have been more convenient for defendant to have 'sent the message through Brunswick or Chillicothe to Triplett than through Omaha to Triplett, and at any rate that the sending of the message outside of the State was
We have carefully examined the record and we do not find that there was any evidence that it was less convenient or took any greater time to send the message by Omaha than by way of Brunswick or Chillicothe. We do not attempt to say that defendant could avoid the effect of the penalty provided in the statute by purposely sending the message outside of the State in an effort to make it interstate commerce. This case does not present a situation of that kind. The evidence shows that defendant had a choice of two ways of sending the message, one as convenient as the other and requiring as little time as the other and, therefore, as direct as the other. There is nothing in the evidence from which a court or jury could say that defendant was attempting to avoid the statute mentioned. We could not go to the extent of holding that where a company has two routes over which a telegram could be sent, one an intrastate and the other an interstate route, each- of equal convenience and requiring the same time, and therefore as direct, it must send the message over the intrastate route and not the interstate route, and that a failure to send it over the former is evidence of an intention to avoid the state statute. 'Of course, the fact that the origin and destination of the message was in the State of Missouri did not make the message an intrastate one when its course or route took it outside of the State. [Hanley v. Kansas City Southern Ry. Co., 187 U. S. 617; Bateman v. Western Union Tel. Co., 93 S. E. 467 (N. C.); Western Union Tel. Co. v. Kaufman, 162 Pac. 708 (Ok.); Western Union Tel. Co. v. Bolling, 91 S. E. 154 (Va.); Western Union Tel. Co. v. Lee, 192 S. W. 70 (Ky.); Davis v. Western Union Tel. Co., decided by this court but not yet reported.]
Plaintiff calls our attention to the fact that this message was not sent from Kansas City directly -to
The judgment is reversed.