Paul v. Western Union Telegraph Co.

• Decision Date: 05 March 1912
• Citation: 145 S.W. 99
• Parties: PAUL v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

145 S.W. 99

PAUL v. WESTERN UNION TELEGRAPH CO.

St. Louis Court of Appeals, Missouri.

March 5, 1912.

Rehearing Denied March 23, 1912.

1. APPEAL AND ERROR (§ 520)—BILL OF EXCEPTIONS —MATTERS EMBRACED IN BILL.

Orders sustaining motions to compel defendant to produce papers in its possession material to the case can be reviewed only when embraced in a proper bill of exceptions, not being part of the record proper.

2. APPEAL AND ERROR (§ 257)—REVIEW— EXCEPTIONS.

Orders sustaining plaintiff's motion to compel defendant to produce evidence and overruling defendant's motion to rescind and vacate that order cannot be reviewed, when not excepted to at the time, although made the ground of objection in the motions for new trial and in arrest.

3. APPEAL AND ERROR (§ 179)—REVIEW— CONSTITUTIONAL QUESTIONS.

While a constitutional question may be presented for the first time in the motion for new trial when that is the first opportunity offered for its presentation, a constitutional question based on the sustaining of plaintiff's motion to compel defendant to produce evidence cannot be reviewed on appeal, when no exception was reserved on trial, and the

question was raised for the first time in the motions for new trial and in arrest.

4. APPEAL AND ERROR (§ 882)—INVITED ERROR—ESTOPPEL.

In an action against a telegraph company for the statutory penalty provided for by Rev. St. 1909, § 3330, where plaintiff pleaded a demand and refusal within the time specified by the telegraph company's blanks, and his evidence was rejected upon defendant's objection that it was immaterial to any issue in the case, defendant cannot on appeal complain that proof of demand and refusal was not made.

5. TELEGRAPHS AND TELEPHONES (§ 78)— OPERATION—ACTIONS—EVIDENCE.

In an action against a telegraph company for the penalty for nondelivery of messages provided for by Rev. St. 1909, § 3330, evidence held sufficient to authorize recovery.

6. APPEAL AND ERROR (§§ 994, 995)—VERDICT—CONCLUSIVENESS.

The credibility of witnesses and the probative value of testimony are for the trial court sitting as a jury, and its determination cannot be reviewed on appeal.

Appeal from Circuit Court, Montgomery County; N. D. Thurmond, Judge.

Action by Rolla S. Paul against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.

G. Pitman Smith and Geo. H. Fearons, for appellant. Clarence A. Barnes, for respondent.

REYNOLDS, P. J.

This is an action under section 3330, Revised Statutes, 1909, for the penalty given by that statute for failure on the part of defendant to use due diligence in transmitting and delivering a message delivered to it, and for failure to place the same in the hands of the addressee promptly and with impartiality and in good faith.

When the case was called for hearing before this court, counsel for appellant suggested that we had no jurisdiction inasmuch as the construction of the Constitution of the United States and of this state was involved in the determination of the cause, and asked that the cause be transferred to the Supreme Court. Disposing of that, we are obliged to overrule it. A careful reading of the abstract furnished by counsel for appellant fails to show that counsel has saved any exception whatever to the adverse action of the trial court, over which action the constitutional question is claimed to have arisen. It appears by the abstract that prior to the trial of the cause, plaintiff filed a motion to compel defendant to produce certain papers in its possession material to the trial, to be used as evidence against defendant. The court sustained this motion and ordered defendant to produce the papers. Afterwards defendant filed its motion to rescind and vacate that order, on the ground that it was a penal proceeding and the defendant could not be compelled to furnish evidence against itself, and because the order to produce was in violation of defendant's right under the Constitution of this state and the Constitution of the United States and the fourth and fifth amendments thereto. This motion to rescind was overruled, whereupon defendant produced the telegram and a letter in response to the order, the telegram being introduced at the trial, and the letter offered but excluded. No exception whatever was saved at the time to this action of the court and no mention whatever is made to any of these matters in the bill of exceptions. They all appear in what purports to be an abstract of the record proper. They could only come before us for review by being embraced in the bill of exceptions proper, and they are not referred to in that. As appears by the bill of exceptions, when the telegram referred to was offered in evidence, it was introduced without objection or exception. The only subsequent reference to this motion and to the action of the court in ordering production of the telegram, which was the one delivered by plaintiff to be transmitted, is in motions for new trial and in arrest. As has been held many times and in many cases by our Supreme Court, this is not sufficient to save the point; exceptions not saved at the time the ruling is made cannot be availed of by either a motion for new trial or in arrest of judgment. We hold that a constitutional question is neither properly presented nor saved and is not involved. Hartzler v. Metropolitan St. R. Co., 218 Mo. 562, 117 S. W. 1124. While a constitutional question may be presented for the first time in a motion for a new trial, Logan v. Field, 192 Mo. 54, loc. cit. 66, 90 S. W. 127, that must have been the first opportunity presented for its presentation. That was not the case here. It could have been, should have been, raised when the order for production of the papers was made. There is nothing properly before us to show that it was then raised, or if raised and overruled, that exception was then saved to the action of the court.

The petition in the case, after averring the failure of defendant to deliver the telegraph message and praying for judgment for the penalty given by the statute, avers that within 60 days after filing the message with defendant for transmission, plaintiff demanded of defendant in writing the payment of the statutory penalty and that defendant had failed and refused to make the payment.

As appears by the abstract of the record, on the blank of the message read in evidence, it is provided, among other things, that the company (defendant) will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within 60 days after the message is filed with the company for transmission. It is insisted that no proof was made by plaintiff of this demand in writing. If this point was for consideration by the writer of this as an original proposition, he would be inclined to hold that this regulation of the telegraph company requiring a notice of a demand in writing as preliminary to the right of action for the statutory penalty is of no force. While that provision may well apply to an action for damages, the writer is unable to see how it can have any application when the action is not for damages but for the statutory penalty, which fixes the amount of recovery, independent of whether any damages have been actually sustained or not, and awards one-third of the penalty to the public school fund. The writer agrees with the intimation which Judge Ellison makes in Montgomery v. Western Union Telegraph Co., 50 Mo. App. 591, that as our law provides that one-third of the penalty shall go to the public school fund, it would appear doubtful whether the Telegraph Company can cut off the right of action unless written demand is made within sixty days. It would seem that the statute of limitations, section 1890, R. S. 1909, giving three years for the institution of actions to recover penalties, cannot be abrogated by this regulation of the Telegraph Company, "a condition or limitation of its own making," says Judge Biggs, speaking for our court in Barrett v. Western Union Telegraph Company, 42 Mo. App. 542, loc. cit. 547; a condition to which the public (the school fund) is in no sense a party. It has been distinctly decided by the Kansas City Court of Appeals, in Grant v. Western Union Telegraph Co., 154 Mo. App. 279, 133 S. W. 673, that this sixty days is a reasonable time within which the demand must be made and that the stipulation in question is...