39 Mo. App. 599 | Mo. Ct. App. | 1890
delivered the opinion of the court.
Section 883 of the Revised Statutes of Í879 reads as follows: “It shall be the duty of every telephone or telegraph company, incorporated or unincorporated, operating any telephone or telegraphic line in this state, to receive dispatches from and for other telephone or telegraph lines, and from or for any individual, and on payment or tender of their usual charges for transmitting dispatches, as established by the rules and
This action is brought to recover the penalty of one hundred dollars given by the above statute.
The case was tried before the court, sitting as a jury, and judgment was entered for the plaintiff for the penalty of the statute, and the defendant prosecutes this appeal.
There is no controvery about the facts. Some of them are agreed upon by the counsel for the respective parties and the rest are delivered in the form of the testimony of the plaintiff, while the defendant offered no evidence. The parties have united upon the following agreed statement:
“ On Sunday, June 10, 1888, the plaintiff delivered to defendant’s duly authorized agents at Hannibal, Missouri, a certain dispatch and message substantially as follows:
“ ‘HaNNIBal, Mo., June 10, 1888.
"To Mrs. Joe Burnett, Monroe City, Mo.:
“ ‘I will be home to-night.
“‘(Signed.) Job Burwett.’
“The above dispatch was delivered to defendant’s agent about the hour of six o’clock — being near the hour the agents of the company changed, viz., about the hour the agent of the day left the service of the office and the night agent went on duty. The plaintiff paid the usual charges demanded for sending the message, viz., the sum of twenty-five cents, and the company retained the same. The company never transmitted or delivered the message to the addressee. It is agreed that the agents of the company will testify that they have no*603 knowledge, whatever, of the message, and that the same is not found upon the files of the company, and the agents can give no account of said message. It is admitted that the defendant is a corporation and doing business, as alleged in the amended petition, and admitted that notice was served as alleged in said petition, and within the time alleged therein, and that all proper demands have been made by plaintiff. The fact, as alleged in said amended petition, is not admitted by defendant and is left, open to plaintiff’s proof to be adduced. It is also agreed that either the plaintiff or defendant may make any objection to the competency of the testimony, as set forth herein, and defendant may make any legal objection to the petition which he may desire. The message was written and filled out on one of defendant’s blanks, a copy of which is hereto attached and marked “A.” It is agreed the company’s agents will testify they have no knowledge why the said message was not transmitted and delivered — unless the said message was lost. Plaintiff did not pay to have the message repeated. In event of trial it is agreed this stipulation may be read in evidence.”
The plaintiff testified, as a witness, as follows :
“ I am the plaintiff in this case! I am a married man, and my family consists of my wife and four children, ranging from three to thirteen years of age. On Saturday, the ninth day of June, 1888, I came from my home at Monroe city, in this county, to Paris, on the noon train. Before leaving, I told my wife I would be back the next day, which was Sunday. At Paris,- on that Saturday night, I attended a meeting of my lodge, and at that meeting I received news of the death of Wm. C. Foreman, at Hannibal, Missouri, and I decided then to attend, with the lodge, his funeral at that place the next day, and that Saturday night I went to Hannibal, and did attend the funeral the next day.*604 On the afternoon of the next day, which, was Sunday, June 10, 1888, I went to the telegraph office to notify my wife that I would not be home until late that night, or rather on the train which arrives at two o’clock in the morning of the next day. I gave the operator the message described in the petition, and asked him to have it transmitted and delivered immediately to my wife, explaining my absence and notifying her when I would arrive. This I always do when I am detained from home longer than I anticipate, and my wife expects it, and is anxious when I do not notify her. I explained this to the telegraph operator, and impressed him with the importance of the dispatch. The message never reached my wife, and, when I arrived at home, I found her sitting up awaiting me, and very anxious. I paid the operator twenty-five cents, what he demanded for sending the message, and the company has never refunded it. I asked the agent of defendant, to whom I gave the dispatch, if it could be sent and delivered at once, and he said it could. I explained the necessity that required the prompt sending and delivering of the message to this agent before I left the office, and the agent promised to send the message immediately.” On cross.-examination, the witness stated that he could not say exactly at what time he received the information, which led him to decide to go to Hannibal, or when he did decide soto go; but it was sometime during the lodge meeting. He did not know whether or not he could have sent a telegram on Saturday night after making up his mind to go to Hannibal. He never thought of it. In answer to the question, “ Could you not have sent the information in some way to your wife on Saturday night that you would not be at home on the expected time the next day?” — he said: “I do not know. I might have done so; but I never attempted to do so, because I thought that I would see somebody on the night train by*605 whom I could send word to my wife; but did not see any one by whom I could convey such information, and I was engaged all day Sunday attending the funeral and burial services, and could not send the dispatch sooner than I did.”
This was all the evidence; and, thereupon, the court 'gave several declarations of law and refused others, which, so far as deemed material, will be set out and commented upon.
I. The first assignment of error is that the court erred in declaring the law to be “that this statute is remedial rather than penal.” There is no doubt that this was an erroneous view of the classification of the statute. It imposes a severe penalty for that which may, under circumstances, visit slight damages upon the sender of the message. It is the same in substance, though not quite the same in language, as the former Indiana'statute (repealed by substitution in 1885) which was, by the supreme court of that state, always construed as a penal statute. Western Union Tel. Co. v. Axtell, 69 Ind. 199; Western Union Tel. Co. v. Mossler, 95 Ind. 29; Western Union Tel. Co. v. Kinney, 106 Ind. 468; Western Union Tel. Co. v. Harding, 103 Ind. 505; Western Union Tel. Co. n. Steele, 108 Ind. 163; Western Union Tel. Co. v. Wilson, 108 Ind. 308; Western Union Tel. Co. v. Brown, 108 Ind. 538. So far, then, as there is any difference in the rules of construction to be applied as between a penal statute and a remedial statute, we have no doubt that this statute is to be construed as a penal statute. But it does not at all follow from this that the judgment of the circuit court is to be reversed; for the question *„for decision before the court arose upon an undisputed state of facts, and in such cases, although the court may have proceeded upon erroneous views of the law, yet if, on the whole evidence, the judgment was a proper application of the law to the facts, it cannot be reversed.
Counsel for defendant does not,' as we understand him, go to the length of taking the position that the company does Jnot make itself subject to the penalty for failing to transmit at all, but that it is not subject to the penalty, unless the plaintiff makes it appear that the failure to transmit was the result of the defendant’s want of impartiality and good faith; in other words, that the gist of the offense, for which the statute gives
The defendant’s view would fritter the statute away, and render it entirely useless in every case where the dispatch is received and the customary charges collected, and the dispatch is not sent at all, as in the case at bar. How, in the nature of things, could the sender of the dispatch prove, beyond the inference that would arise from the mere failure to transmit, that the company had been guilty of partiality and bad faith % How could he get out of the employes of the defendant, who alone would have knowledge of the real reason of the failure to transmit the dispatch, evidence which would convict them of so gross a violation of duty ? Under such a view of the statute, the agent of the telegraph company could receive the dispatch, and throw it into the waste basket, or into the fire, the moment the sender ’ s back was turned, and the latter could never recover the penalty denounced by the statute. This would cut the statute down so as to make it mean that the penalty could be recovered only in cases where the dispatch was in fact transmitted, but where it was not
Our attention has been called to decisions in Indiana, and Arkansas construing similar statutes in those two states enacted in the year 1885, which hold that the penalty denounced by the statute is not recoverable in the case of a mere neglect to transmit the message, that is, that it is not given as a punishment for mere negligence. Western Union Tel. Co. v. Steele, 108 Ind. 163; Western Union Tel. Co. v. Swain, 109 Ind. 405; Frauenthal v. Western Union Tel. Co., 6 S. W. Rep. [Ark.] 236. Under the prior statute of Indiana (R. S. Ind. 1881, section 4176), it was held that the right of action for the penalty accrued where the failure to transmit the dispatch was the mere result of negligence. Thus in Western Union Tel. Co. v. Buchanan, 35 Ind. 429; s. c., 9 Am. Rep. 744, the message was, by mistake, and in consequence of the gross ignorance of the defendant’s operator, sent to the wrong place, but an action for the penalty was nevertheless sustained. The Indiana statute then under consideration was substantially the same in its terms as our statute. It used the words, “shall transmit the same with impartiality and good faith, and in the order of time in which they are received, under penalty, in case of failure tO' transmit, or, if postponed out of such order, of one hundred dollars to be recovered by the person whose dispatch is neglected or postponed.” Our statute likewise requires'the company “to transmit the same with impartiality and good faith, under a penalty of one hundred dollars for every neglect or refusal to. do so,” etc. ' But the statute of Indiana of 1885 was drawn in terms quite different. The first section prescribed the
The Arkansas statute of 1885 more clearly pointed to a purpose on the part of the legislature to change the rule, than did the Indiana statute. Prior to the adoption of this last statute in Arkansas, there had been on the statute books of that state a statute (Mansf. Ark. Dig., sec. 6419), which gave a penalty for the negligent failure to transmit a dispatch. This statute was, by the act of 1885, expressly repealed. In view of this repeal, and in view of the. further fact that the new statute nowhere contained the word “neglect” or any word of equivalent import, but merely made use of the word “refuse,” the courfc could not do otherwise than hold that it was not intended to give the extraordinary penalty of five hundred dollars for mere negligence in failing to transmit a dispatch, which might result in slight damage to the sender. The court quote with approval the above language of Chief Justice Elliott, and the conclusion is entirely obvious.
Aside from authority, there is sound reason for this conclusiqn. There are many cases where telegraph messages relate to family affairs, and where great mental suffering and affliction are produced by the failure to transmit them, in which the law will give no more than nominal damages, or the cost of sending the message. Illustrations of this will be found in Logan v. Tel. Co., 84 Ill. 468, where the dispatch, which was not transmitted, summoned a son to the death-bed of his mother, and the court intimated that the rule of damages would be nominal damages, or the cost of sending the dispatch. It is further illustrated in West v. Tel. Co, 39 Kan. 93, where the action was for damages for failing to deliver a message, in which a son notified his father of the death and funeral of a brother of the latter, and it was intimated that damages for the mental disappointment and suffering could not be recovered. These, and other like decisions (Gulf, etc., Ry. Co. v. Levy, 59 Tex. 563; Russell v. Tel. Co., 3 Dak. 315), proceed upon the well-known rule that there can be no recovery for mere mental suffering, which is not the proximate consequence of a physical injury, — except .in the case of breach of promise of marriage, and possibly in some other exceptional cases. While there is some tendency in recent cases to break away from this rule (see Stuart v. Tel. Co., 66 Tex. 580; s. c., 59 Am. Rep. 623; SoRelle v. Tel. Co., 55 Tex. 308; s. c., 40 Am. Rep. 805; Wadsworth v. Tel. Co., 86 Tenn. 695; s. c., 6 Am. St. Rep. 864), yet it is apprehended that the well-known general rule, which
III. The message was tendered for transmission on Sunday. The defendant tendered a declaration of law to the effect that, this being the allegation in the petition and the undisputed evidence, “the-finding must be for the telegraph company, unless the evidence further shows that the sending of said dispatch was a work of necessity; ” also another declaration of law as follows : “The said dispatch was not a work' of necessity, unless, under all the circumstances, it appears from the evidence that it was absolutely requisite that it should be sent on Sunday. But, if the evidence shows that it was a work of necessity, but that the plaintiff neglected to send a similar dispatch or similar information on the preceding day, and by such neglect on his part created a necessity for sending it on Sunday,'he cannot recover.”- The court also gave, at the request of the plaintiff, the following : “The court declares the law to be that the necessity contemplated by the Sunday law is not an absolute necessity, but a relative necessity; and such a relative necessity may be a necessity arising from inadvertence on the part of the person pleading the necessity, but not from wilfulness. The pulling of ears of barley in a field on Sunday to appease a hunger, which might have been readily provided for on the preceding day, would not be, per se, a violation of the Sunday law.” The court also found as a fact ‘ ‘that the sending of the message and transmitting of the message on Sunday was a work of necessity.” These rulings indicate the theory of the court, that the sending of this dispatch, under the circumstances
It will be perceived that in these declarations of law, both those which were given and those which were refused, the court proceeded upon the view that the only exception created by the statute, which denounces the performance of work and labor on .Sunday, is in favor of works of necessity. It will be seem by the reading of the statute that it also creates an exception in favor of works of charity: — “Every person who shall either labor himself, or compel or permit his apprentice, or servant, or any other person under his charge or control, to labor or perform any work, other than the household offices of daily necessity, or other works of necessity or charity, or who shall be guilty of hunting game or shooting on the first day of the week, commonly called Sunday, shall be deemed guilty of a misdemeanor, and fined not exceeding fifty dollars.” R. S. 1879, sec. 1578.
It is a rule of appellate procedure that a case cannot be tried upon one theory, and determined in the appellate court upon another theory. But the rule has no application to cases where the judgment of the trial court is affirmed for reasons other than those on which the trial court proceeded; for, although the trial court has given the wrong reason for the right judgment, or an insufficient reason for a correct judgment, the judg-' ment is not to be reversed, if it is supported by good reasons, and if it is an application of the law to the
But we think that it was a work of necessity. The undisputed evidence shows that it was intended to advise the plaintiff’s wife of his whereabouts and of the time of his arrival at home, after he had been absent-from home for two days, a portion of his absence being protracted and unexplained to his wife, — in order to allay any anxiety on her part as to his whereabouts and safety. It also shows that this fact was communicated to the agent of the defendant, who received the dispatch. We are of opinion that this was a work of necessity within the meaning of the statute. In Massachusetts, where the court has gone as far, perhaps, as any court in the Union in upholding laws against what is called Sabbath-breaking, it has been said : ! ‘ By the word ‘necessity’ in the exception, we are not to understand a physical and absolute necessity, but a moral fitness or propriety of the work and labor, ‘done under the circumstances of any particular case, may well be deemed necessity within the statute.” Flagg v. Inhabitants of Millbury, 4 Cush. (Mass.) 243. We think that the common sense of those who are most rigorously in favor of Sunday observance would unite in saying that the sending of a message to a man’s wife and family under such circumstances — where he had been from home an unexplained and unaccountable length of time — for the purpose of allaying anxiety as to his whereabouts, would be regarded as a work of necessity.
But, if it is not a work of a necessity, we think that it must be pronounced a work of charity. The word “charity” is derived from the Latin “earns,” which means “dear, costly, loved.” Among the definitions of the word given by Webster are “love,”
Then, as to the' view which the trial court took, that the necessity which will authorize the doing of work on Sunday “may be a necessity arising from inadvertence on the part of the person pleading the necessity, but not from wilfulness,” we think that that is' the correct view. We also think that the court rightfully refused the instruction tendered by the" defendant, that “if the plaintiff neglected to send & similar dispatch or similar information on the preceding day, and, by such neglect on his part, created the necessity for sending it on Sunday, he cannot recover.” We must here recur to the view that the necessity is not a physical but a moral necessity. If a husband absents himself from his wife and family beyond the promised length of time, and neglects on Saturday to send them information of his whereabouts and the time of his return, he is clearly under the moral duty of sending suck information on Sunday, and this moral duty which he owes to them creates a necessity within the meaning of the statute. The duty and the necessity exist, although the circumstances creating them may have been the result of his previous negligence.
We may, perhaps, take even a broader view of the case. Here is a telegraph company which, no doubt, keeps its principal offices open every Sunday in the year, presumably for the sending of messages which relate to works of necessity or charity, and which may, therefore, lawfully be sent. Its operatives are on duty. They receive a message of the kind in question, and accept the regular fee for transmitting it. Upon what principle is public justice advanced, or the cause of morality or religion subserved, by allowing them to take the money of the customer, neglect to send his message, and then plead, what is a mere afterthought, that the message was tendered to it on Sunday 2 Does anyone suppose that this company has refused to receive and transmit a single telegraphic message on Sunday during the past year, when its operatives were on duty and its lines in order 2 Could a jury be assembled in Missouri that would fine it for sending such a message as the one in question, if it were indicted therefor under section 1578 of the Revised Statutes of 1879 2 These observations are thrown in to indicate the wide departure from common sense, and from the ordinary habits of thinking of the people, which would be involved in a decision upholding such a defense.
The judgment will be affirmed.