Williams v. Western Union Telegraph Co.

• Decision Date: 01 September 1925
• Docket Number: No. 3812.,3812.
• Citation: 275 S.W. 570
• Parties: WILLIAMS v. WESTERN UNION TELEGRAPH CO.
• Court: Missouri Court of Appeals

275 S.W. 570

WILLIAMS v. WESTERN UNION TELEGRAPH CO.

No. 3812.

Springfield Court of Appeals. Missouri.

September 1, 1925.

Appeal from Circuit Court, Texas County; W. E. Barton, Judge.

Action by Vene Williams against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Francis R. Stark, of New York City, and Green, Green & Green, of West Plains, for appellant.

B. L. Rinehart, of West Plains, for respondent.

BAILEY, J.

This is an action for damages for error in transmitting an unrepeated telegraphic message from Arthur, Ill., to West Plains, Mo., which original message delivered to defendant for transmission was as follows:

                            "Arthur, Ill. Aug. 28, 1923
                

"Vene Williams, West Plains, Missouri. Send one load of steer calves as heifers have to be T. B. tested to ship in this state. Let know if you ship them at once.

                                  "[Signed] Bob Stevens."
                

The message as delivered to plaintiff, read as follows:

                           "Arthur, Illinois. Aug. 28, 1923
                

"To Verne Williams, West Plains, Missouri. Send one carload of steers and heifers have to be T. B. tested to ship in this state. Let know if you ship them at once.

                                     "[Signed] Bob Stevens."
                

Defendant had printed on the back of each telegraphic blank, among other things, two provisions which are involved in this case. One provision was that—

"The company 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."

There was a further provision that the company's liability at the unrepeated message rate should not exceed $500. Plaintiff obtained judgment for $649.47, from which defendant appeals.

The principal contention made by defendant is that its demurrer to the evidence should have been sustained on the theory that plaintiff failed to prove that he gave proper and timely notice of his claim. Defendant, by its answer, pleaded failure on the part of plaintiff to serve such notice within 60 days as provided by the stipulation on the back of the telegram blank which the answer sets out in full. Plaintiff, by his reply denied that he was bound by such stipulation, and further denied that he failed to present his claim within 60 days from the receipt of said message.

[1, 2] Preliminary to a consideration of this question, we shall dispose of plaintiff's contention that, since defendant failed to introduce in evidence any proof of the provisions on the back of the telegram blank, such provisions are not in the record and therefore may not be considered by this court. Defendant attempted to introduce a blank telegram in evidence showing such provision, but the trial court refused to permit its introduction on objection by plaintiff that the original was the best evidence. Plaintiff would be bound by such provision, whether on the back of the original telegram or not, and the offer to prove such uniform provision was entirely proper. Western Union Telegraph Co. v. Esteve Bros., 256 U. S. 566, 41 S. Ct. 584, 65 L. Ed. 1094. Moreover, plaintiff's reply practically admitted the existence of the provision as to 60 days' notice, but pleaded he was not bound thereby, and denied that he had failed to comply therewith. We may therefore consider such provision as an admitted fact. Kerns v. Western Union (Mo. App.) 198 S. W. 1132; section 1256, R. S. Mo. 1919.

[3, 4] No proof was offered by either party relative to the giving or failure to give the 60-day notice. It is unquestionably the law of this state, as plaintiff contends, that the defense based on a failure to give such notice is an affirmative one, and must be proven by the party pleading such defense. Jessie Covell v. Western Union, 164 Mo. App. 630, 147 S. W. 555. But the message here involved was transmitted from one state to another and constituted interstate commerce. The federal laws and decisions therefore control. Jacobs v. Western Union, 196 Mo. App. 300, 196 S. W. 31; Poor Grain Co. v. Western Union, 196 Mo. App. 557, 196 S. W. 28. We have found no federal decisions which have decided just where the burden of proof lies in such cases. In so far as interstate messages are concerned, Act Cong. June 18, 1910, c. 309, § 7, 36 Stat. 539 (U. S. Comp. St. § 8563), has greatly changed any previous conceptions our courts may have had on the subject. In the case of Western Union Tel. Co. v. Esteve Bros., supra, the Supreme Court of the United States uses the following language:

"The act of 1910 introduced a new principle into the legal relations of the telegraph companies with...