F. W. Brockman Commission Co. v. Western Union Tel. Co.

• Decision Date: 03 February 1914
• Citation: 163 S.W. 920,180 Mo. App. 626
• Parties: F. W. BROCKMAN COMMISSION CO. v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

163 S.W. 920

180 Mo. A. 626

F. W. BROCKMAN COMMISSION CO. v. WESTERN UNION TELEGRAPH CO.

St. Louis Court of Appeals. Missouri.

February 3, 1914.

1. STATUTES (§ 241)—CONSTRUCTION—PENAL STATUTES.

A statute of a penal nature should be strictly construed, although the life and spirit of the statute should not be destroyed thereby.

2. TELEGRAPHS AND TELEPHONES (§ 78) — TRANSMISSION OF MESSAGES—PENALTIES.

Under Rev. St. 1909, § 3330, providing that every telegraph company, on payment or tender of the usual charges as established by its rules, must transmit and deliver messages with due diligence by the most direct means available, under a penalty of $300 for every failure, the payment or tender of the fees before the message is accepted for transmission is a condition precedent to recovery of the penalty, and a sender of messages, who with the

consent of the telegraph company signed duebills for the messages which were to be collected after the messenger boys, who called for the messages, had delivered them to the sending office, is not entitled to recover the penalty; the transaction being essentially a credit one.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by the F. W. Brockman Commission Company against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ferriss, Zumbalen & Ferriss, of St. Louis, for appellant. Julian Paul Cayce, of Farmington, and Douglas W. Robert, of St. Louis, for respondent.

ALLEN, J.

This is an action to recover the penalty imposed by section 3330, Rev. Stat. 1909, for the alleged failure of the defendant telegraph company to promptly transmit and deliver a telegram sent from the city of St. Louis to Farmington, Mo.

Plaintiff, in its petition, averred the delivery of a certain telegram to defendant at its St. Louis office, to be transmitted to the addressee at Farmington, the tender and payment to defendant of the usual charges for transmitting and delivering such a message, as established by the rules and regulations of defendant, and the acceptance of the message by defendant for transmission and delivery; that the defendant "did not transmit and deliver said message promptly to the addressee, and did not use due diligence to place said dispatch in the hands of the addressee by the most direct means available, promptly and with impartiality and good faith"; but that defendant "neglected and failed and refused" so to do. And plaintiff prayed judgment for the sum of $300, the statutory penalty; two-thirds thereof to be retained by plaintiff and one-third to be paid into the county school fund of St. Francois county, Mo. The answer was a general denial.

The cause was tried before the court and a jury, resulting in a judgment for plaintiff for the said penalty of $300, and the case is here upon defendant's appeal.

On December 21, 1911, plaintiff corporation, engaged in the commission business in the city of St. Louis, delivered to the defendant the following telegram to be transmitted by it to Morris Bros., at Farmington, Mo., viz.: "Live turkey market declined one cent quoted fourteen selling fourteen half." Plaintiff's president testified that at about 11:30 a. m., on said December 21, 1911, he wrote the message in question, at plaintiff's place of business, upon one of defendant's telegraph blanks, and put in a call for a "Western Union" messenger by means of a "call box" in plaintiff's office; that a few minutes thereafter one of defendant's messengers appeared and took the message, the plaintiff signing a "duebill" for the charges to be paid upon this and other messages sent by it at the time.

It appears that it was customary for plaintiff, in delivering telegraph messages to defendant for transmission by it, to sign duebills for the charges therefor, such duebills being printed forms, upon slips of paper, prepared by defendant company and supplied to plaintiff and others of its patrons for this purpose; that, upon sending a message or messages, plaintiff would sign such a paper indicating the message or messages delivered to defendant; and that later the same would be returned to plaintiff with the charges filled in, and such charges collected by defendant. Plaintiff's president testified that such duebills were paid on demand, sometimes the day following that upon which the telegram was sent, and sometimes several days later; that upon the occasion in question the duebill containing the charges for this telegram, which were 43 cents, was presented upon the day following that upon which the telegram was sent; and that the amount thereof was then paid.

It appears that defendant endeavored to send the telegram in question to Farmington by way of Delassus, Mo., which is but a few miles from Farmington; and that it was received by the operator at Delassus at about 12:35 p. m. of that day. It may be inferred that defendant company had no telegraph line leading directly to Farmington, though it seems that it maintained an office at that place. However, defendant's operator at Delassus endeavored to transmit the message to Farmington by telephone, but failed to do so prior to about 2 o'clock of that afternoon, at which time it was given to an agent of defendant who had arrived from Farmington and who was shortly to return to the latter place. It appears that the message was delivered to the addressee at about 4:15 that afternoon.

There are several assignments of error before us, but it will be necessary to notice only that which pertains to the ruling of the trial court on the demurrer to the evidence interposed below by defendant.

The pertinent provisions of the statute upon which the action is predicated, viz., section 3330, Rev. Stat. 1909, are as follows: "It shall be the duty of every telegraph or telephone company, * * * in this state, * * * on payment or tender of their usual charges for transmitting and delivering dispatches as established by the rules and regulations of such telephone or telegraph lines, to transmit and deliver the same to designated address and to use due diligence to place said dispatch in the hands of the addressee, by the most direct means available without material alterations, promptly, and with impartiality and good faith under a penalty of three hundred dollars for every neglect or refusal so to transmit and deliver," etc. (Italics ours.) The statute is of course penal in its nature. It is to be strictly construed; and plaintiff, in order to recover, must bring itself clearly within the terms and provisions thereof. The statute has naught to do with the liability of a telegraph company for damages suffered by reason of delay in the transmission of a telegram, but penalizes the company for failure to transmit and deliver a message, or to use due diligence to do so promptly, etc., regardless of the question of whether damages were or were not suffered by reason thereof. Obviously one who seeks to invoke the statute and recover such penalty must bring his case clearly within its terms. See Adcox v. Telegraph Co., 171 Mo. App. 331, 157 S. W. 989; McCloud v. Telegraph Co., 170 Mo. App. 624, 157 S. W. 101; Grant v. Telegraph Co., 154 Mo. App. 279, 133 S. W. 673; Bradshaw v. Telegraph Co., 150 Mo. App. 711, 131 S. W. 912; Cowan v. Telegraph Co., 149 Mo. App. 407, 129 S. W. 1066; Eddington v. Telegraph Co., 115 Mo. App. 93, 91 S. W. 438; Pollard v. Telephone Co., 114 Mo. App. 533, 90 S. W. 121; Wood v. Telegraph Co., 59 Mo. App. 236; Connell v. Telephone Co., 108 Mo. 459, 18 S. W. 883; Elliott v. Telegraph Co., 157 S. W. 670.

While this does not mean that the life and spirit of the statute are to be construed out of it by a strict construction of its terms (see Elliott v. Telephone Co., supra, 157 S. W. loc. cit. 672), it does mean that "no case shall be held to fall within it which does not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment" (see Connell v. Telephone Co., supra, 108 Mo. loc. cit. 463, 18 S. W. 883, and authorities cited).

By the express provisions of the statute, a telegraph company becomes liable for the penalty imposed, for the failure there mentioned with respect to the transmission and delivery of a message, only "on payment or tender of the usual charges"...