Elliott v. Western Union Telegraph Company

• Decision Date: 03 June 1913
• Citation: 157 S.W. 670,175 Mo.App. 213
• Parties: E. M. ELLIOTT, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant
• Court: Missouri Court of Appeals

157 S.W. 670

175 Mo.App. 213

E. M. ELLIOTT, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

June 3, 1913

May 7 1913, Argued and Submitted

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

Judgment affirmed.

Geo. H Fearons, Geo. A. Mahan, A. R. Smith and Dulany Mahan for appellant.

(1) Plaintiff's petition is not sufficient, and defendant's objection to the introduction of any evidence should have been sustained. The statute (section 3330) making telegraph companies liable for a penalty for failure to transmit messages must be strictly construed and applied only to such cases as come clearly within its provisions, and in actions under such statute, it is especially necessary that the petition should state facts which make the defendant liable under the statute by its very terms. Every essential fact to a recovery must be set out in the petition and defects in such petition will not be cured by a verdict. Bradshaw v. Tel. Co., 150 Mo.App. 711; Woods v. Tel. Co., 59 Mo.App. 236; Connell v. Tel. Co., 108 Mo.App. 459; Eddington v. Tel. Co., 115 Mo.App. 98. (2) Plaintiff assumed the burden of showing that the notice was given as required upon the back of the telegram, by setting up that allegation in his petition. Paul v. Tel. Co., 164 Mo.App. 239; Covell v. Tel. Co., 164 Mo.App. 632.

Clarence A. Barnes for respondent.

(1) The Legislature intended that the penalty prescribed by Sec. 3330, R. S. 1909, should be recovered under the same rules pertaining to any civil suit, because said statute expressly provides that the penalty shall be recovered by civil suit, and by strict construction as applied to said statute it is never meant to exclude those violations of its terms which fall within its reasonable meaning and within its spirit, and the intention of the Legislature should govern its interpretation, and a construction given that will not defeat its purpose and object. Parker v. West, U. Tel. 87 Mo.App. 553, 559; Pollard v. Mo. & Kan. Tel. Co., 114 Mo.App. 533; Jones on Telegraph & Telephone Companies, Sec. 619, p. 597; Moore v. Telegraph Co., 164 Mo.App. 165. (2) The commencement of the suit before the expiration of the sixty days limitation within which to present the claim in writing, is a sufficient presentation of such claim. Jones on Telegraph and Telephone Companies, Sec. 398; West. U. Tel. Co. v. Henderson, 89 Ala. 510; Bryan v. West. U. Tel. Co., 133 N.C. 603; West. U. Tel. Co. v. Mellon, 96 Tenn. 78; West. U. Tel. Co. v. Cooper, 29 Tex. Civ. App. 591; Phillips v. West. U. Tel. Co., 95 Tex. 638; West. U. Tel. Co. v. Crawford, 75 S.W. 843: West. U. Tel. Co. v. Trumbull, 1 Ind.App. 121; Grant v. West. U. Tel. Co., 154 Mo.App. 279, 282; Montgomery v. West. U. Tel. Co., 50 Mo.App. 591, 592.

REYNOLDS, P. J. Nortoni and Allen, JJ., concur.

OPINION

REYNOLDS, P. J.

--This is an action under section 3330, Revised Statutes 1909, to recover the statutory penalty of $ 300, two-thirds of which, under this statute, to be retained by the plaintiff and one-third to be paid into the county school fund of the county in which the suit is instituted. After averring the incorporation and business of the defendants as a telegraph company engaged in operating lines in the State of Missouri and between the cities of St. Louis and Mexico in that State, it is averred that on the 27th of June, 1911, plaintiff addressed a written telegram to Dan H. Cauthorne at Mexico, Audrain County, Missouri, reading: "Will reach Mexico on one six train to-night;" that plaintiff delivered this to the defendant at its office in the city of St. Louis "together with the usual charges for the transmission and delivery of the dispatch at the day rates therefor;" that the dispatch was delivered to the defendant at its office in St. Louis on that date at about the hour of 7:30 p. m., and that plaintiff at the time notified defendant that he would leave in a short time for Mexico, Missouri, and was assured by defendant, acting through its agent and servant, that the dispatch would be transmitted and delivered to the addressee in Mexico, Missouri, long before plaintiff should arrive there; that defendant accepted the dispatch for delivery to the addressee therein named, together with its charges therefor and undertook to transmit and deliver the same to the designated addressee and to use due diligence to place the dispatch into the hands of the addressee promptly and with impartiality and good faith; that Cauthorne, the addressee in the dispatch, at the time of the institution of the suit and at all the times mentioned, was a resident of the city of Mexico, Missouri, residing within the corporate limits of the town and within a few blocks of the receiving station of defendant, and that defendant, wholly unmindful of its duty and obligation before mentioned, failed to use due diligence in transmitting and delivering the dispatch to the designated addressee and to place the same in his hands promptly and with impartiality and in good faith and did not transmit the dispatch from the offices of defendant in the city of St. Louis to its office in the city of Mexico, Missouri, until the hour of 8:15 on the 28th day of June, but that at about 9 o'clock of that day defendant delivered the dispatch to the addressee therein named in the presence of plaintiff. It is further averred that within sixty days after filing the message with defendant, plaintiff demanded of defendant, in writing, payment of the statutory penalty, with which demand defendant failed to comply. Judgment is asked under the statute for the penalty.

The answer was a general denial.

At the beginning of the trial, which was before the court and a jury, defendant objected to the introduction of any testimony on the ground that the petition did not state a cause of action under section 3330, of the Statutes of 1909. The specific objections made to the petition were that it does not allege that the usual charges were paid for transmitting and delivering the message; that it does not designate the address of the addressee as required by the statute; that while the petition charges a failure to deliver the message to the addressee, it does not charge a failure to deliver it at the designated address, and, finally, that the petition does not allege that the charges paid were the usual charges established by the rules and regulations of the company, as required by the same section. These objections were all overruled, defendant excepting.

The evidence tended to show that plaintiff delivered the dispatch at an office of the company at Union Station in the city of St. Louis; that he told the operator there in charge that he was going up on the night train from St. Louis to Mexico, told him what time the train would arrive at Mexico, if on time, and that it was important to have the message delivered before the train should arrive there. The operator assured him that this would be done. This occurred at the time mentioned in the petition. The operator at the Union Station office of the company, within a few minutes after the message was received, not to exceed ten minutes, transmitted it to the main office in St. Louis for transmission to Mexico. It was not started out from the main office until the following morning, arriving in Mexico and being delivered to the addressee at his residence about 9 o'clock on the morning of that day. In brief, plaintiff introduced evidence to sustain all the allegations in the petition. It further appeared that it would not take to exceed ten minutes to transmit the message from the main office in St. Louis to Mexico.

The telegraph blank on which this message...