Davis v. Western Union Telegraph Co.

• Decision Date: 05 December 1921
• Docket Number: No. 14151.,14151.
• Citation: 236 S.W. 407
• Parties: DAVIS v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

236 S.W. 407

DAVIS v. WESTERN UNION TELEGRAPH CO.

No. 14151.

Kansas City Court of Appeals. Missouri.

December 5, 1921.

Rehearing Denied January 9, 1922.

Appeal from Circuit Court, Linn County; Fred Lamb, Judge.

"Not to be officially published."

Action by David J. Davis against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

Bailey & Hart, of Brookfield, and Edwin Camack and S. J. McCulloch, both of Kansas City, for appellant.

Lon R. Owen and C. M. Kendrick, both of Marceline, for respondent.

TRIMBLE, P. J.

This is an action to recover the penalty provided by section 10136, R. S. 1919, for failure to deliver a prepaid telegram sent by plaintiff at Moberly, Mo., to his brother at Marceline, Mo., announcing the death of their father. Plaintiff recovered judgment for $300, the statutory penalty, and defendant appealed.

The telegram was sent subject to the usual provisions that the company would not be liable for damages or the statutory penalty unless a claim therefor was presented in writing within 60 days after the telegram was filed for transmission, and that no employé of the company was authorized to vary this requirement. No formal written claim was presented within the 60 days, at least none was proved, and the petition merely charges that defendant was notified of such failure to deliver, and then sets up facts upon which it is charged that if such notice was not as required, nevertheless the company entered into negotiation with plaintiff for a settlement thereof, by reason of which the company is estopped to rely on such a defense, or has waived the presentation of the claim.

The defendant offered no testimony at the close of plaintiff's case, but stood or its demurrer. Plaintiff's evidence is to the effect that the telegram was sent, but was never delivered. There was some evidence which may show, inferentially perhaps, that the telegram was prepaid, though the question of prepayment is not relied upon by defendant in support of its demurrer. It is conceded in appellant's brief that the telegram, so far as it is now material, appears to have been prepaid.

If we understand the basis of defendant's demurrer, it is the claim that no written claim was presented within 60 days, and that no waiver of the same was shown. With reference to this matter, plaintiff offered evidence tending to show that within a very few days after the delivery of the telegram for transmission plaintiff's attorney wrote defendant at its headquarters in relation to the matter, and received from defendant a letter, saying that Mr. Bailey, who was the local agent at Marceline, would call in a few days and take the matter up with plaintiff, and that defendant had written Bailey to do so, which thereby gave him authority to act in the premises. Pursuant to said letter, Bailey did call in a few days, and endeavored to settle with plaintiff, but was unable to do so, the only thing they were not able to agree upon being the amount the company should pay. These letters were lost or destroyed, and their exact contents were not in evidence, but, in view of the allegations of the petition and the statement of plaintiff's counsel during the trial that "no formal claim was filed," it must be recognized that the letters written by plaintiff's attorney to defendant did not come up to the requirement of being the presentation of a written claim within the meaning of the contract provision. It is held that there is a distinction between a mere notice of the failure to deliver the telegram and the presentation of a claim based thereon. Grant v. Western Union Tel. Co., 154 Mo. App. 279, 283, 284, 133 S. W. 373; Western Union Tel. Co. v. Moxley, 80 Ark. 554, 98 S. W. 112. And it is the latter that the contract requires.

However, we think that what the defendant did, pursuant to those letters, can be be regarded as the waiver of the presentation of a formal written claim. The object and purpose of the contract provision is that the company may have notice of the claim, and intelligently settle or prepare its defense while the facts are known and evidence of them is obtainable. Grant v. Western Union Tel. Co., supra. According to plaintiff's claim, it undertook to settle upon the notice it had, and would have done so could an agreement...