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, Missouri, to-wit, Corridon, a message addressed to a liveryman at Yan Burén, Missouri, and paid such agent of defendant the sum of sixty-five 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, 19=10', plaintiff went into an office of the Missouri Southern Railroad at Corridon, Missouri, 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, Yan Burén via Chicopee, Missouri. Meet me at Boyd’s Crossing 3 o’clock today.
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 Yan Burén, was paid. This oc*75curred between 9 :20' and 9:40 a. m. Tbe distance from Corridon to Leeper is forty-five miles and from Leeper to Van Burén by a route followed by telegraph lines' is fifty-one 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 Burén is within one-half mile of Chicopee where defendant has an office and messages are delivered to citizens of Van Burén from the Chickopee office. This message was received at Chickopee at 2:45 p. m. and by the liveryman at 2:55 p. m. It was then too late to comply with the telegram, as Boyd’s Crossing is twelve miles from Van Burén. The result was that plaintiff was compelled to walk that distance upon a hot summer day.
The contention of appellant is that as this is an action for a penalty, the statute mnst be strictly construed and the proof must bring the party clearly within' its provisions to entitle him to recover, and that it is essential to allege and prove that the message was delivered to an agent of the telegraph company at its office and that the charges were prepaid. This position is correct. [Bradshaw v. Telegraph Company, 150 Mo. App. 711, 131 S. W. 912.] Applying the rule as above stated to this case the appellant insists that the message was delivered for transmission at Corridon, the charges paid at Corridon to an agent of tbe Missouri Southern Railroad, that defendant had no office at Corridon and that the railroad agent who received the message from plaintiff was not the agent of defendant. The question whether or not the defendant had an office and an agent at Corridon is the only question presented in appellant’s brief as a reason for reversing the judgment and we shall therefore confine ourselves to that question.
The evidence on part of defendant discloses that there was an arrangement between defendant and the railroad agent at Corridon by which that agent collected the charges for messages sent from that point *76to Leeper to be forwarded from there. We have the following testimony by plaintiff:
“I went into the railroad depot (meaning- at Corridon) and asked if the Western Union had an office there and the man said they did and— By the Court .- Q. Was he the agent of the Western Union? A. Yes, sir. Q. Was he the operator? A. Yes, sir. He said they had to use the phone to Leeper and I asked him for a blank and he gave me a Western Union blank.” Cross-examination: Q. “Are you certain of your own knowledg-e that the Western Union has an agent there?” A. “Yes.” Q. “You know it of your own knowledge?” A. “I know it as well as a man knows anything. I had the blank and the agent told me it was an office.” Q. “The only reason you think that was an office of the Western Union was because they gave you a blank like this (indicating- Western Union blank).” A. “The agent told me it was a Western Union office.” There was some other evidence of a similar character. The appellant, having permitted all this testimony to go in without objection and having-cross-examined the witness fully on the same line, cannot now be heard to say that it was incompetent. The evidence then could properly be considered and its weight was for the trier of the facts. [Caris v. Nimmons & Bennett, 92 Mo. App. 66, 69 ; McVey v. Barker, 92 Mo. App. 498, 506; Farber v. Mo. Pac. Ry. Co., 139 Mo. 272, 284, 40 S. W. 932; Kash v. Coleman, 145 Mo. 645, 649, 47 S. W. 503; Frye v. Railroad, 200 Mo. 377, 406, 98 S. W. 566; Sheibley v. Nelson (Neb.), 121 N. W. 458, and cases there cited.] If this testimony was believed, it was sufficient to make a prima facie showing that defendant did have an office at Corridon. Especially is this true when taken in connection with testimony of defendant’s witnesses that the agent at Corridon was authorized to collect charges for defendant. The court sitting as a j’ury having- found in plaintiff’s favor, that finding is binding- upon us.
*77In the entry of judgment the whole of the penalty was awarded to plaintiff. This is conceded to be erroneous as one-third should go to the school fund and as was done in Parker v. Telegraph Company, 87 Mo. App. 553, the clerk of this court will be directed to enter here a corrected judgment awarding to Howell county for the benefit of the county school fund the sum of $100'. With this correction, the judgment will be affirmed.
All concur.