Held v. Western Union Telegraph Co.
| Decision Date | 02 July 1915 |
| Parties | HENRY HELD, Respondent, v. WESTERN UNION TELEGRAPH COMPANY, Appellant |
| Court | Missouri Court of Appeals |
June 7 1915, Argued and Submitted
Appeal from Stoddard Circuit Court.--Hon. W. S. C. Walker, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Wammack & Welborn and Ferriss, Zumbalen & Ferriss for appellant.
Section 3330, R. S. 1909, is highly penal and must be strictly construed, and applies only to such cases as come clearly within its provisions and manifest spirit and intent. The plaintiff must bring himself clearly within the provisions of the statute before he can recover. Taylor v. Telegraph Co., 181 Mo.App. 294; Brockman v. Western Union, 180 Mo.App. 626; Nasep v. Western Union, 184 Mo.App. 141; Moore v. Western Union, 164 Mo.App 165; Bradshaw v. Telegraph Co., 150 Mo.App. 711; Rixke v. Telegraph Co., 96 Mo.App. 406. The liability of a telegraph company under said section 3330, R S. 1909, arises only by virtue of the contract between the sender of the message and the appellant. Eddington v. Telegraph Co., 115 Mo.App. 93.
Geo. Munger for respondent.
(1) Appellant, having voluntarily tried this case on the theory set out in respondent's instructions, cannot now complain that that theory was erroneous. Bank v. Zook, 133 Mo.App. 603; Grimes v. Cole, 133 Mo.App. 522; Morrison v. Roehl, 215 Mo. 545. (2) There being evidence of negligence on appellant's part and consequent delay in the delivery of the message, its demurrer to the evidence was properly overruled. McClowd v. Telegraph Co., 170 Mo.App. 624; Bradshaw v. Telegraph Co., 150 Mo.App. 711. (3) Effect should be given to the plain meaning of the words of the statutes. Though it be penal, life and not death should be accorded it by construction. Moore v. Telegraph Co., 164 Mo.App. 172; Commission Co. v. Telegraph Co., 180 Mo.App. 632; Henry v. Evans, 97 Mo. 47; St. Louis v. Lane, 110 Mo. 254. (4) This law did not originally compel the delivery of a dispatch. Sec. 1255, R. C. 1899; Rixke v. Telegraph Co., 96 Mo.App. 406. But the Legislature, by positive enactment, cured this defect and changed the rule. Sec. 3330, R. S. 1909; Moore v. Telegraph Co., 164 Mo.App. 172. (5) If given instructions are not supported by any evidence they are harmless and will not work a reversal. Shafer v. Railroad, 128 Mo. 64.
About two o'clock p. m., on December 5, 1912, plaintiff left a message with the defendant's agent at its office at Illmo, for transmission to Dexter, both points in this State and on defendant's line, paying for it twenty-five cents, that being the proper tariff charge for its transmittal and delivery, the message directed "To Martin Sanders, Dexter, Mo." The message was duly transmitted to Dexter, being received by the operator of defendant at that place about 2:45 p. m. of that day. When the telegram arrived at Dexter, the operator, within ten minutes after its arrival, gave it to a messenger, an employee of defendant, with instructions to deliver it to Martin Sanders. This messenger had never heard of Martin Sanders, and did not know where anyone of that name lived. He accordingly went to the hotel and other public places and asked for him but could not locate him. He then went to the post office and on inquiry there was told that there were two men named Sanders, one named Martin, the other Monroe; that Monroe lived some eight miles out in the country. The messenger said he did not want Monroe but Martin Sanders, when he was told where the latter lived, as it appears, on Rural Route No. 3, his box No. 1 on that route and about half a mile outside of the free delivery zone of defendant and of the town limits of Dexter, and about one mile from the office of defendant. The messenger went back to the telegraph office and told the result of his search. The agent of defendant put one or more postage stamps on the envelope containing the telegram, addressed it to Martin Sanders, Box 1, Route 3, and gave it to the messenger to place in the Dexter post office, which he did. It was found in the box by the wife of Sanders between nine and ten o'clock of the morning of December 7, she testifying that she had seen the mail carrier deposit it in that box a few minutes before.
This action is for recovery of the penalties given by section 3330, Revised Statutes 1909, plaintiff charging that having handed in the message to the agent of defendant at Illmo about 2:45 p. m., of December 5, and having paid the proper charges thereon, the message directed to Martin Sanders at Dexter, Missouri, that it "then and there became the duty of defendant to transmit promptly said message, over its wires to Dexter with care and diligence, and then to use due diligence to place said message in the hands of said addressee, Martin Sanders, by the most direct means available; . . . but that defendant so negligently and carelessly conducted the transmission and delivery of said message that the same was not placed in the hands of the addressee thereof till long after it should have been placed in his hands, to-wit: on the 7th day of December, 1912, at about 9:30 o'clock, a. m." Judgment is prayed for the statutory penalty.
The answer was a general denial.
There was a verdict for plaintiff and judgment for $ 300, one-third thereof as provided by statute awarded to the general school fund of Stoddard county. From this judgment defendant has duly appealed.
Here appellant assigns five errors.
The first error assigned is to the action of the trial court in refusing appellant's demurrers to the testimony. We do not think this assignment is well taken.
The envelope in which this telegram was enclosed when mailed to Martin Sanders was in evidence, but it appears that the post office mark had been in part on the envelope and in part on the stamps and these latter had disappeared. All that could be made out was the name "Dexter," and the figures "8:00," as indicating the time; whether eight a. m. or eight p. m., could not be determined, nor was the date visible. There was testimony tending to show that if the message had been placed in the post office between six thirty and eight o'clock p. m., of the 5th, it would have been stamped as of eight p. m., December 5th, or if put in after eight p. m., of the 5th, and before eight a. m. of the 6th, it would have been stamped eight a. m., December 6th, and would have been delivered to the rural mail carrier the morning of the 6th and taken out by him about 9:30 a. m., that day and deposited by ten a. m., in Box 1, Route 3, that being the first box on that route out of Dexter. The carrier testified that he had no recollection of having carried this or any other letter past Box 1 on the 6th and then carrying it back a second time on the 7th, and the wife of Sanders testified that she had seen the carrier place it in the box on the morning of the 7th, about nine thirty or ten o'clock and had at once taken it out; that she received no mail on the 6th.
While the telegraph messenger testified that after he had ascertained the address of Martin Sanders, he had taken the message back to the telegraph office with the correct address and stamps, he does not state when he did this.
This section 3330 has been before our court and those of the other Courts of Appeals as well as our Supreme Court, and construed in...
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