Pollard v. Missouri & K. Telephone Co.

• Decision Date: 06 November 1905
• Court: Missouri Court of Appeals
• Parties: POLLARD v. MISSOURI & K. TELEPHONE CO.

90 S.W. 121

114 Mo. App. 533

POLLARD v. MISSOURI & K. TELEPHONE CO.

Kansas City Court of Appeals. Missouri.

November 6, 1905.

1. STATUTES—CONSTRUCTION—PENALTIES.

Rev. St. 1899, § 1255, requiring telegraph and telephone companies to receive and transmit dispatches on payment or tender of the usual charges, under a penalty of $200 for every neglect or refusal so to do, is a penal statute, and should not receive a strained construction; but a company which is sought to be subjected to the prescribed penalty must be brought strictly within the terms of the statute.

2. TELEGRAPHS AND TELEPHONES — ACTION FOR PENALTY.

Rev. St. 1899, § 1255, requires telegraph and telephone companies to receive dispatches, and on payment or tender of the usual charges to transmit the same, under a penalty of $200 for every neglect or refusal so to do. Section 1257 makes it the duty of the company's agent, when the line is out of order, to inform the sender, and, if required, to write that information on the dispatch. Section 1258 provides against forging dispatches, and section 1259 refers to copying and addressing dispatches. Held, that the telephone company, to be subjected to the statutory penalty, must have refused to receive and transmit a written dispatch, and it is not liable to the penalty for a refusal to place a party in direct personal communication with another over its telephone system.

Appeal from Circuit Court, Caldwell County; J. W. Alexander, Judge.

Action by D. S. Pollard against the Missouri & Kansas Telephone Company. From a judgment for defendant, plaintiff appeals. Affirmed.

D. E. Adams, for appellant. Battle McCardle and Gleed, Ware & Gleed, for respondent.

ELLISON, J.

This action was brought by plaintiff to recover of the defendant telephone company, organized as a corporation, a penalty of $200, under the terms of section 1255, Rev. St. 1899, relating to the duties of telegraph and telephone companies. The defendant demurred to the plaintiff's petition, on the ground that it did not state a cause of action, which demurrer was sustained, and plaintiff, electing to stand on his pleading, appealed to this court.

The petition charges that defendant had a telephone line open to the public running from Braymer, Mo., to Kansas City, and that it maintained offices at each of those places. The plaintiff proceeds to state his case in these words: "Plaintiff further states that, under the provisions of section 1255 of the Revised Statutes of Missouri for 1899, it was at the date hereinafter mentioned the duty of the defendant to promptly, and with impartiality and good faith, furnish telephone service over its said telephone system, and to transmit dispatches for all persons who may pay or tender the usual fees and charges as are prescribed by the defendant for such service, and for the transmission of such dispatches as is requested and demanded. Plaintiff further states that on the 10th day of June, 1904, at the office of the defendant, in the said city of Braymer, he informed defendant's agent in charge of said office that he desired to communicate with F. E. Pratt, at Kansas City, Mo., and requested and demanded of defendant's said agent that he be placed in communication with said Pratt over defendant's said telephone system; that the usual charge and toll for the service demanded by the defendant was forty-five cents; that plaintiff offered to defendant's said agent at the time a fifty-cent piece of money from which to take the proper amount of tolls and charges, which amount was more than the usual charge and toll for the service demanded by plaintiff; that defendant, by its agent, then and there refused to accept the amount offered, and refused to receive any money from plaintiff, and wrongfully refused to furnish the telephone service requested and demanded by plaintiff, and informed plaintiff that the correct...