Eddington v. Western Union Telegraph Co.

115 Mo. App. 93 | Mo. Ct. App. | 1905

NORTONI, J.

(after stating the facts). — We are clearly of the opinion that the court should have peremptorily directed a verdict for the appellant. We do not reach this conclusion from the fact that for some reason unexplained in the record, the wires seemed to be down, nor upon the grounds that some condition had arisen which rendered it impossible for appellant to transmit the message with promptitude, as in Taylor v. Tel. Co., 107 Mo. App. 105, 80 S. W. 697, for no sufficient showing is contained in the record to justify such holding on these grounds. We reach the conclusion, however, upon the broad ground of the contractual relation existing between, the parties. Respondent in this action is pursuing the penalty which has accrued to him, if at all, by virtue of the statute which imposes a penalty upon appellant for default in carrying out its contractual duty to the respondent. It is clear that the statute in question, in so far as this case is concerned, contemplates a contract between the parties, for it requires payment or tender of the amount of compensation due for the services demanded in advance of the services and under the statute, it is part of the burden of the party pursuing the penalty to show that such usual compensation was either tendered or paid, and upon this showing, the contractual duty arises on the part of the telegraph company to transmit, etc., and it is upon a default in this contractual duty thus arising that the penalty can be awarded in this case, if at all. [Brashears v. W. U. Tel. Co., 45 Mo. App. 442; Rixke v. Tel. Co., 96 Mo. App. 411.] It was competent for the parties to make any contract or agreement they saw fit about sending the telegram at the time it was delivered to the company’s agent, so long as it was not contrary to the public law on the subject. This being true, then it becomes our duty to look at the contract between the parties on which the transaction involved rests. In this contract was incorporated the express understanding that the message was accepted in the first instance by the telegraph company subject to the delays, and with the knowledge then and there conveyed to respondent that there was some difficulty with the wires which would render its transmission subject to delay. In this state of the case, the law requires only reasonable diligence on the part of the operator to transmit the message as early as possible. [Smith v. Western Union Tel. Co., 57 Mo. App. 264.] It is shown that he called Cape Girardeau while the respondent was then with him at the time of accepting the message, failed to get a response to his call and so informed respondent, and that he continued to so call every fifteen or twenty minutes until the message was finally transmitted the following morning. This was certainly reasonable diligence. It further appears that respondent came by the office at noon and was informed by the operator that he could not get Cape Girardeau over the wire and was advised by him that the mail train would soon be along and that he had better send the message by mail as it would reach its destination earlier than it would be possible for him to transmit it over the wires, and his money was thereupon tendered back to him by the operator; that he declined the money and said: “There is no hurry about it, send it when you can.”

A statute, such as the one here authorizing a recovery without any proof of actual damages, injury or pecuniary loss, is harsh indeed, when applied to those cases which fall properly within its provisions. It is highly penal and must be strictly construed and applied only to such cases as come clearly within its provisions and manifest spirit and intent. [Dudley v. W. U. Tel. Co., 54 Mo. App. 391; Connell v. Tel. Co., 108 Mo. 459, 18 S. W. 883.] We certainly cannot extend it to cover a case such as the one under consideration. It can only apply to such cases as where the contract to transmit the message with promptness is either express by the acceptance of the message and fee, or implied by law upon the tender of a proper message and fee, without special contract or limitations to the contrary. It certainly cannot be invoked to require promptness in the transaction where the parties, by agreement, have provided that such promptitude shall not be exacted. The judgment is reversed.

Bland, P. J., and Goode, J., concur.