Covell v. Western Union Telegraph Co.

• Decision Date: 06 May 1912
• Parties: COVELL v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

147 S.W. 555

COVELL v. WESTERN UNION TELEGRAPH CO.

Springfield Court of Appeals. Missouri.

May 6, 1912.

Rehearing Denied June 3, 1912.

1. TELEGRAPHS AND TELEPHONES (§ 78)— MESSAGES — TRANSMISSION — NEGLIGENCE —NOTICE—BURDEN OF PROOF.

In an action against a telegraph company for the penalty prescribed by Rev. St. 1909, § 3330, for negligence in failing to transmit a telegram, the burden of proving plaintiff's failure to give notice of the claim within 60 days, as required by a stipulation on the back of the message, is ordinarily on the defendant.

2. TELEGRAPHS AND TELEPHONES (§ 54)— MESSAGES — TRANSMISSION — NEGLIGENCE —NOTICE—SERVICE.

Where the blanks used in sending and delivering a message named C. as president and general manager of defendant telegraph company, and defendant's general agent at the place where plaintiff's attorneys resided directed them to address notice of the claim to C., a notice delivered to C. in New York, or at the office of the general manager of defendant in that city, was a sufficient notice to defendant, within the requirements of a provision in the contract requiring notice of claim within 60 days, though C. was no longer an officer of the company; plaintiff having no information of that fact.

3. TRIAL (§ 139) — QUESTION FOR JURY — WEIGHT AND SUFFICIENCY OF EVIDENCE.

Where evidence objectionable as hearsay was admitted without objection, its weight and sufficiency was for the jury.

4. EVIDENCE (§ 71)—PRESUMPTIONS — RECEIPT OF LETTER.

The fact that a letter was mailed, duly addressed and stamped, is presumptive evidence that it was received by the addressee.

5. EVIDENCE (§ 71)—PRESUMPTIONS—DELIVERY OF MAIL—ADDRESS.

Where a letter was addressed "R. C. Clowry, General Manager of the Western Union Telegraph Company, New York," the address was sufficient, notwithstanding a failure to give street and number, to raise a presumption that it was duly delivered and received by the addressee, since the courts will take judicial notice of the fact that that telegraph company has probably more offices than any other concern in the country, and that the daily mail of its general office must be hundreds of letters, so that the distributing employés of the postal service must be thoroughly acquainted with the location of its office, and that the failure to designate the street and number would not prevent a prompt delivery of letters so directed.

6. EVIDENCE (§ 89) — PRESUMPTIONS — RECEIPT OF MAIL.

The presumption that a letter duly addressed, stamped, and mailed, containing a notice of a telegraph company's failure to promptly transmit and deliver a telegram, was received, was not overcome by evidence that the officer to whom the letter was addressed reported no record of its receipt.

7. TELEGRAPHS AND TELEPHONES (§ 54)— TRANSMISSION OF MESSAGE — NOTICE OF CLAIM—SERVICE—NOTICE BY MAIL.

Where a provision of a contract for the transmission of a telegram required notice of any claim within 60 days, notice of a claim for negligent transmission and delivery was not required to be actually served on defendant, its agents or employés; but notice received by defendant through the mail was sufficient.

8. CORPORATIONS (§ 290)—ESTOPPEL (§ 107) —OFFICERS—NOTICE.

Where defendant corporation furnished plaintiff a telegraph blank by which notice was given that C. was defendant's president, defendant could not deny that C. was such official, to plaintiff's injury, though plaintiff did not plead estoppel.

9. APPEAL AND ERROR (§ 204) — REVIEW — OBJECTIONS NOT MADE AT TRIAL.

An assignment of error to the admission of evidence cannot be sustained on appeal on an objection not presented to the trial court.

Appeal from Circuit Court, Laclede County; L. B. Woodside, Judge.

Action by Josie Covell against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

George H. Fearons, of New York City, and A. W. Curry, of Lebanon, for appellant. I. W. Mayfield & Son, of Lebanon, for respondent.

GRAY, J.

Plaintiff instituted this action to collect the penalty prescribed by section 3330, Revised Statutes 1909. The message was sent from Webb City, December 30, 1910, addressed to W. C. Simpson, Stoutland, this state; and plaintiff made a prima facie showing of negligence on the part of the appellant in handling the same.

The answer alleged that the telegram was written on a blank containing the following stipulation: "The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission." It was further alleged that plaintiff failed to present her claim, as she was bound to do under said stipulation. The case was tried before the court, without a jury, resulting in a judgment in favor of the plaintiff, and defendant appealed.

The real question on this appeal is whether plaintiff failed to give the notice required by the stipulation. The defense of failure to give notice is an affirmative one, and the burden therefore is ordinarily on the defendant. Kendall v. Telegraph Co., 56 Mo. App. 192. But it appears that plaintiff assumed this burden and offered the proof relating thereto, and the question now is, Was the evidence sufficient to carry the issue to the jury?

Plaintiff's evidence tends to prove that she employed the law firm of Mayfield & Son, of Lebanon, Mo., to collect the penalty. It appears from the testimony of I. W. Mayfield that he inquired of the appellant's general agent at Lebanon as to the proper person and place to address a letter giving the notice of the claim, and was told to write to R. C. Clowry, general manager of the Western Union Telegraph Company, New York; that on January 7, 1911, his firm did write a letter giving notice of the claim. The witness produced a copy of the letter, and testified that he mailed the original, properly stamped and addressed, as instructed; that he received no answer, and on February 28, 1911, he wrote another letter, mailed it, properly stamped and addressed, exactly as the former one; that he received through the United States mail the following reply thereto: "Law Department, The Western Union Telegraph Company, 195 Broadway. George H. Fearons, General Attorney. New York, March 7, 1911. Messrs. I. W. Mayfield & Son, Attorneys, Lebanon, Mo.—Dear Sirs: Your letter of the 28th ult., addressed to Mr Robert C. Clowry, former president of this company, with reference to alleged negligence in the delivery of a message sent by Jessie Covell from Webb City, Mo., to W. C. Simpson, Stoutland, Mo., has been forwarded to me. I am advised by Mr. B. Brooks, general manager, that he has no record of your previous letter of January 9th with reference...