171 Mo. App. 331 | Mo. Ct. App. | 1913
Plaintiff sues to recover of defendant the penalty imposed by section 3330, Revised Statutes of Missouri 1909, for failure to promptly transmit a telegram from its office in Chillicothe, Missouri, to the city of Indianapolis, Indiana.
A jury was waived and the case was tried by the court. There is no dispute over the fact that there was a failure to transmit promptly. The delay in sending said message occurred in the office at Chilli-cothe. This also is undisputed.
Plaintiff delivered the message to defendant’s agent in the telegraph office at a little before eight o’clock in the morning, and explained to the agent that it was important to get it off at once so it would be certain to reach the addressee before noon else it would be of no avail to send it. The agent promised he would send the message at eight o’clock, that being the hour at which the work of the office properly began in the morning. The agent did not do so, however, for the'reason that, after plaintiff left the office, a telegram came to plaintiff which the agent supposed related to the same transaction, and which the agent
Defendant’s main contention is that, as the message was addressed to a point outside the State of Missouri and was therefore, an interstate message, and the defendant was engaged in interstate commerce; and, as the statute cannot regulate such commerce not having an extraterritorial force, the defendant is not liable to the penalty prescribed.
It is true the statute does not have any extraterritorial force, nor can it apply if its enforcement is, in any degree, a regulation of interstate commerce.' It is also true that, in a number of cases, it has been remarked that the statute in question can have no application except in those cases where there is “a failure to promptly transmit from a place in this State to the addressee at another place also in this State.” But an examination of those cases will disclose that such remarks were a little broader than the facts therein warranted. In all of them the contract calling for the exercise of defendant’s common law duty, and the negligence or violation of that duty, or at least a constituent element of that violation, occurred outside of the State. Hence, as the statute could have no extraterritorial force, it could not be made applicable or be enforced in such instances. In the case of Rixke v. Western Union, 96 Mo. App. 406, the violation of duty charged was a failure to deliver the telegram in Leav
In Wagner v. Western Union, 152 Mo. App. 369, the telegram was sent from a point in the State of Kansas to a point in Missouri. In other words, the contract out of which defendant’s common law duty arose, and on which the claim for penalty in that case was based, was executed outside of the State. And, as the statute is penalty, it must be strictly construed, and, having no extraterritorial force, it could not apply. In Connell v. Western Union, 108 Mo. 459, the. violation of duty charged was the failure to deliver the telegram at Leavenworth in the State of Kansas. The Supreme Cdurt, on page 463, says the duty charged to have been violated by defendant was “not that it failed to receive and transmit the message” at Se-dalia, but that it failed to deliver it at Leavenworth in Kansas; and that the duty imposed by the statute upon defendant was to receive and transmit the message at Sedalia. It would seem from this that, had the delay or violation of duty been shown to have occurred at Sedalia, a point within the State, and where the contract to receive and transmit was made, the Supreme Court would not have held the statute inapplicable.
So that, so far as we have been able to discover, there is no case holding that, where the contract and the delay both arose in the State of the statute wherein the penalty was sought to be enforced, the statuté is not applicable because the telegram happened to be addressed to a point- outside the State. On the contrary, this court, in an opinion by .Johnson, J., in the
Objection is made to the action of the court in allowing plaintiff to amend his petition so as to expressly state that the charges for the telegram were tendered at the time the message was delivered for transmission. This, however, was permissible under our statute. [Sec. 1848, R. S. Mo. 1909; Lowenstein v. Railway, 134 Mo. App. 24, l. c. 34.] The fact that this was an action to recover on a statute penal in its nature does not change the law in relation to pleadings in -the case. ’
But the defendant contends that the charges were neither paid nor tendered, and, therefore, there can be no recovery. It must be borne in mind that the
That the charges were not paid is conceded. The orginal pentition alleged that “the said agent agreed to collect the usual and regular charges for transmitting said dispatch from the addressee therein.” After
A tender is defined by Black’s Law Dictionary to be: “An offer of money; the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due, in satisfaction of such claim or demand, without any stipulation or condition” To constitute a tender there must be an unconditional offer to pay. [Henderson v. Cass County, 107 Mo. 50; Ruppel v. Mo. Building Assn., 158 Mo. 613 l. c. 622.] A tender to be good must be unaccompanied by any condition to which the creditor has a right to object. [28 Am. & Eng. Ency. of Law (2 Ed.), p. 31.] And before a tender can be said to be waived, the tenderee must have refused to accept it or must have placed .himself in such position as would make a tender an unnecessary act. [38 Cyc. 136.] A mere assertion .of readiness or willingness to pay is not suffi-eient. [38 Cyc. 142.]
An examination of all the testimony discloses that there was no real tender of the money in this case, nor was there either an express or implied refusal on the part of the agent to take it. On the contrary, it shows that, at plaintiff’s request, the message was accepted to be sent “collect” that is, without payment of charges by the sender but which were to be obtained by the company from the addressee, .and, in case of failure to collect from the addressee, then the sender was to pay. In other words, the message was
“Q. G-o ahead and tell what yon said there about the payment of the message, what the agreement was. A. I was quite anxious to get it off but had been in the habit, which is generally customary with all company’s messages and expenses such as that which they always make up in their sworn statement, and I asked him to count it up and he told me what it come to and he said, ‘Do you want to send it “collect” or pay it here?’ I said, ‘I would rather you would send it “collect,” but I can pay you here if you want it;’ and he said, ‘All right, I will send it “collect,” ’ and I said, ‘If you fail to collect, I will pay it anyway,’ and I took the money out of my pocket, and said, ‘I can pay it here, if you want me to. ’ ”
A little further on in again describing what took place between him and the agent plaintiff said: “He first counted it up and he said how much it is and he said eighty cents, as well as I remember. He said, ‘Do you want it sent “collect” or pay it now?’ I said, ‘I have been sending them that way according to instructions, but if you can’t send it that way, I will pay you now,’ and pulled out the money.
“Q. If he couldn’t send it how? A. Collect.
“Q. Did he say it would go ‘collect?’ A. Yes.”
The agent testified that:
“A. Mr. Adcox came in and wrote out the telegram going to the Prudential Casualty Company at Indianapolis,, Indiana, and I asked him whether to send it paid or collect, and he says ‘send it collect.’ He asked me when I would get it off and I told him at eight o’clock, as soon as I would Open up.
“Q. He got in there a little before eight? A. Yes, sir.
“Q. You told him you would send it when you opened up? A. Yes, sir.
*340 “Q. Did Adcox pay for it? A. No, sir.
“Q. Did he offer to pay for it? A. No, sir.”
He further testified that no money was offered him at all; that he saw no money in plaintiff’s hand; and that he sent the message, as requested, “ collect” that is, the charges to be paid for by the addressee. This was all the testimony bearing on the question of tender. In our opinion it does not show any tender whatever, but does show that the message was sent op a credit basis and sent thus at plaintiff’s request. Of course in passing on this point we must accept everything said by the plaintiff as literally true and what he says is to be most liberally construed in his favor. But, after doing this, the most that can be said is that he handed the message to the agent and requested him to send it “collect” and the agent, without demurring or objecting in any way, acceded to his request and sent it on those terms. The fact that plaintiff may have pulled a dollar out of his pocket and said “I.will pay you if you can’t send it that way” does not change the situation. He still wanted the message sent on a credit basis and it was sent that way. As said by the court in Western Union v. Ryals, supra, if he “wanted the company to transact his business at its peril with reference to the penalty, he must either pay in cash or make the tender required by the statute.” Payment in cash was not waived, nor did the agent- refuse to accept the case. He merely granted plaintiff’s request to send the message on a credit basis and agreed to look to the addressee for payment afterwards, or in case of its refusal to pay, then to plaintiff for it. The transaction was nothing more than a sending of the message on credit, that is, on a basis to which the penalty statute does not apply. The fact that plaintiff took a dollar from his pocket and said “I will pay you if you can’t send it that way” did not change1 its nature or make such announcement a tender. One
Of course we do not say that defendant would not be liable for damages for failure to transmit promptly under such circumstances, but that is not this case. This is a suit for a statutory penalty, and the plaintiff must bring himself squarely within the terms of the statute. The cases cited by respondent as holding the company liable even if there was no tender but merely an agreement to collect the charges later, are not cases under the statute to recover a penalty, but suits to recover damages for negligence. [Cogdell v. Western Union, 135 N. C. 341, 47 S. E. 490; Western Union v. Cunningham, 99 Ala. 314, 14 So. 579; Western Union v. Henley, 157 Ind. 90.] The cases of Western Union v. Yopst, 20 N. E. 222, was to recover a penalty. But, in that case, the agent declined to receive compensation and requested that he be allowed to collect the expense from the addressee. And the court held that, as failure to pay for the message at the time of sending it, was the result of the agent’s act, the company could not escape liability on the ground that compensation was not paid at the time the message was delivered to the agent by the sender. That is an entirely different situation from tbe one presented here. The request to send the message “collect” came from the sender in the case before us, and there was no refusal on the part of the agent to accept the money. He merely acceded to plaintiff’s request and accepted the telegram on the same terms plaintiff had been accustomed for more than a year to send them, namely, on a credit basis, that if the addressee refused to pay,