Cowan v. Western Union Telegraph Co.

• Decision Date: 07 July 1910
• Citation: 129 S.W. 1066,149 Mo. App. 407
• Parties: COWAN v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

129 S.W. 1066

149 Mo. App. 407

COWAN v. WESTERN UNION TELEGRAPH CO.

Springfield Court of Appeals. Missouri.

July 7, 1910.

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

A penal statute must be strictly construed and applied only to such cases as come clearly within its provisions and manifest spirit and intent.

2. TELEGRAPHS AND TELEPHONES (§ 78) — NONDELIVERY OF MESSAGES — "PENALTY" — LIABILITY.

Sess. Acts 1907, p. 188, imposing a penalty on a telegraph company for its failure to transmit and deliver messages promptly, with impartiality, and in good faith, does not impose a penalty for the failure to deliver a message at a point where no office is maintained, and, where a contract for the transmission of a message to such point is breached, relief may be had only in an action therefor; the word "penalty" meaning a fine or punishment imposed for a violation of a duty which the wrongdoer is under obligation to perform.

Appeal from Circuit Court, Wayne County; Joseph J. Williams, Judge.

Action by J. D. Cowan against the Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. Affirmed.

O. L. Munger and J. F. Meador, for appellant. George H. Fearons and Wammack & Welborn, for respondent.

NIXON, P. J.

This was an action by the appellant, J. D. Cowan, to recover of the Western Union Telegraph Company the penalty of $300 provided for by section 1255 (Sess. Acts 1907, p. 188; Ann. St. 1906, p. 1029); said section repealing section 1255, Rev. St. 1899.

The evidence shows that on March 26, 1908, shortly after noon, the appellant gave to the respondent's agent at its office in Williamsville, Mo., the following telegram; appellant paying the usual charge for its transmission: "Received at 2:50 p. m. West Plains, 3-26-1908. Dated Williamsville, Mo., 26th. To J. E. C. Roberts, Mountain View, Mo. Can I see you in Mountain View tomorrow? Answer. J. D. Cowan." Plaintiff testified: That at the time he deposited the message the operator at Williamsville informed him he would get an answer that night. That plaintiff inquired the next morning whether or not a reply had been received, and he was told, "Not yet." That he waited until train time — about 10:30 — and asked again and was told that no answer had come. That he then went to Mountain View on the train, arriving there about 5:30 in the afternoon, and finding that Roberts had not received the telegram. That he and Roberts went to the station and were informed that the telegraph office at that place had been closed, and that the message was not there. The evidence shows that the telegraph office at Mountain View had been closed since March 5, 1908. The message was sent from Williamsville over the usual route as far as West Plains — an office through which a message to Mountain View would have to pass — and the evidence showed that the operator at Williamsville did not know that the office had been discontinued at Mountain View. Respondent's agent at West Plains, knowing that respondent then had no office at Mountain View, sent a message to the agent at Williamsville, informing him of that fact, and inquiring what to do with the message. That thereupon the agent at Williamsville instructed the agent at West Plains to forward the message by United States mail to J. E. C. Roberts. The message was so forwarded and was received by Roberts on the 28th day of March, 1908. Plaintiff testified that he had been sending messages from Williamsville to Mountain View over the Western Union's line; that the usual time consumed in sending a message to that place and getting a reply was from 12 to 24 hours. At the close of all the testimony, the court, at respondent's request, peremptorily instructed the jury that under the pleadings and the evidence their verdict should be for the respondent, and the verdict was so returned. The plaintiff below has appealed, and the only question presented for our consideration is as to the propriety of the action of the trial court in giving the peremptory instruction.

The statute under which this action was brought is as...