42 Mo. App. 542 | Mo. Ct. App. | 1890
This is an action against the telegraph company for damages for the failure to transmit or deliver the following message, delivered to the defendant’s agent at Denison, Texas, on the night of the eighteenth of October, 1888 :
“To Holt, Payne & Co., Union Stock-Yards, St. Louis, Mo.:
“Have your bank to notify First National Bank of Denison to pay draft for seven hundred and fifty-six dollars Friday ; will ship three loads.
“ (Signed) E. P. Barrett.”
The defendant by its answer first denied all allegations of the petition, except the delivery of the message. By way of special defense, that portion of the printed matter on the message was set forth, and that was followed by this averment: “Defendant avers that no claim for damages for failure of defendant to deliver said message, or for any other alleged failure or neglect of defendant in relation to said message, was presented to defendant in writing by plaintiff, or any other person, within thirty days after said eighteenth day of October, 1888.”
The plaintiff’s reply put in issue the new matter stated in the answer ; the cause was submitted to the jury, and, at the close of the plaintiff’s evidence, the court at the instance of the defendant gave an instruction that, under the pleadings and evidence, the plaintiff could not recover. The plaintiff submitted to a voluntary nonsuit, and the court, refusing subsequently to set the nonsuit aside, has prosecuted an appeal to this court.
The bill of exceptions does not purport to contain all of the plaintiff’s evidence. Only that portion bearing on the controverted questions has been preserved in the transcript. The contentions of the plaintiff are: First. That he did deliver to the defendant’s agents in St. Louis a sufficient written statement of his claim; second, that the company, by its conduct towards him, waived the necessity of a written claim ; third, that, as the defendant failed to send the message, it could not avail itself of this provision in the contract so as to defeat plaintiff ’ s action. There is also a controversy concerning the extent of the plaintiff’s damages. This question is presented by the pleadings, and by exceptions saved to the rejection of evidence. As before stated, the evidence contained in the record only bears on the negotiations between the parties in reference to an adjustment
Under our view of the law applicable to the third proposition, it will not be necessary to discuss the sufficiency of the plaintiff’s evidence in support of the first and second. It will be observed that the allegation of negligence in the petition was that the defendant failed to transmit or to deliver the message. The evidence as to the nature of the defendant’s default is not preserved. The bill of exceptions, however, does state, in effect, that the plaintiff introduced evidence tending to sustain this averment. But the contention is made that proof, tending to show that the defendant failed to transmit the message, is no proof that the message was not started. We think that this distinction is too fanciful to be maintained. Proof that the company failed to transmit the message, that is, that it was not received at the office at St. Louis, is certainly prima facie evidence that it was not started.
The legal obligations in plaintiff’s favor attached upon the delivery of the message to the defendant’s agent in Denison. Prom that moment the defendant was liable to answer to the plaintiff, in proper damages, for a failure to transmit, or for material mistakes in transmission or unnecessary delays in the delivery. The clause in the contract, requiring the plaintiff in case of loss to present a written statement of the damage within a specified time, must be construed in the nature of a forfeiture of such right of action. Upon the principle that the law does no't favor forfeitures, this clause of the contract should be strictly construed as against
This question was fully discussed in the case of Western Union Tel. Co. v. Yopst, 118 Ind. 248. The provision in the contract in that case read : “ The company will not be liable for damages in any case, when the claim for damages is not presented in writing within sixty days after sending the message.” The telegraph company Insisted that Yopst could not maintain his action, because he had failed to observe this provision. The court said: “ The time fixed by the contract is sixty days from the time of sending the message. The contract thus definitely names the time, and, in doing this, specifies the cases in which the limitation it designates shall apply. By the words of the contract the cases to which the limitation applies are those in which the message is sent. If this be true, and we cannot perceive why it is not, then, where there is no transmission of the message, but a total failure to transmit, there is
The reasoning of the courts in these cases recommends itself to us. WTe have, therefore, applied it in this case. There is some evidence that, a few days after the telegram was delivered, the plaintiff saw it on file in the general office of the company in Denison, but this is no evidence that the telegram had been sent, or that it had been started. Our conclusion is that, when the plaintiff introduced evidence tending to prove that the message was delivered to the defendant, but had not been received at St. Louis, before he could be defeated in his action for a failure to present a written statement of his damage, it devolved upon the defendant to introduce some countervailing proof to the effect, either that the telegram had been sent to St. Louis, or that it had been actually started over the wires from Denison. Even under this condition of proof, the question, like any other question of fact, would be for the jury. This conclusion necessarily leads to a condemnation of the court’s action in directing a nonsuit. It may be well to say in this connection, that, in our opinion, that portion of the defendant’s answer containing this special defense is insufficient. It should allege that the telegram was either sent to St. Louis, or that it was started over the wires from Denison.
We think that the rulings of the court on the question of damages were right under the pleadings. The plaintiff’s evidence showed that he shipped only fifty-six head of cattle to St. Louis. The only damage stated
In view of a retrial of the case, we will call attention to the case of Abeles v. Western Union Tel. Co., 37 Mo. App. 554, in which this court discussed the proper rule for establishing damages in cases like the one under consideration. It was there stated that only such damages could be recovered, as might fairly and substantially be considered as arising naturally, — that is, according to the usual course of things; or such, as might be reasonably supposed to have been in the contemplation of both parties at the time they made the contract. If we apply this rule to the present case, the damages in no event could be extended beyond the loss sustained on three carloads of cattle.
For the reason above stated, the judgment of the circuit court will be reversed and the cause remanded. All the judges concurring, it is so* ordered.