50 Mo. App. 591 | Mo. Ct. App. | 1892
— Defendant received of plaintiff, for transmission, the following telegraphic dispatch:
“Sedalia, Mo., November 29, 1888.
“Chas. H. Zoll, Warrensbtirg, Mo.:
“Meet me at 4:25 train this evening.
“J7T. MoNtg-omeby.”
Plaintiff instituted this action by a petition containing two counts. The first, under section 883, Revised Statutes, 1879, whereby he seeks to recover the penalty of $100, prescribed by that section for a neglect to transmit with impartiality and good faith the dispatch in question to the party to whom it was sent. The second count is based on section 887, Revised Statutes, 1879, wherein he seeks to recover the penalty of $50 on account of the defendant having made known the contents of the dispatch to a person other than the party addressed.
Among the printed restrictions upon the message blank was one that any claim against the company for a failure to transmit a dispatch, or otherwise discharge its duties, must be made in writing by the person complaining, within sixty days after receipt of the message by the company. No claim was presented by plaintiff, and this action was instituted more than sixty days-after delivering the message to the company. The judgment of the trial court was for the defendant on
Defendant insists that, as no claim was made within the time limited, plaintiff should he barred of his action. We will sustain the contention. It is said by Thompson in his excellent treatise on the law of electricity: “It maybe stated, as a general principle, that a stipulation in a telegraph message blank that the company will not be liable for damages unless the claim therefor ,is presented within a certain time after the delivery of the message to the company for transmission, is reasonable, provided the time limited is not too short to enable the sender, in the exercise of ordinary diligence, to ascertain the fact of the mistake, delay, non-delivery or other default, and the amount of damages thereby occasioned, and to present his claim therefor.” Sec. 245. And sixty days is such reasonable time. Sec. 247.
But the claim in this case is for a statutory penalty and not for damages. The exemption or limitation on the message blank is, however, against ''any claim” for the failure of defendant in its duty. Those words: are quite comprehensive, and must be taken to include a penalty. In Western Union Tel. Co. v. Jones, 95 Ind. 228, it is held that the words -any claim for damages will include a penalty. This is' forcibly denied in Western Union Tel. Co. v. Cobbs, 47 Ark. 344, and by supreme court of Georgia in Western Union Tel. Co. v. Coolidge, decided November 10,1890. But they do not deny that if the wording of the limitation was broad enough, as in this case, it would include a penalty. And that a limitation can be lawfully had, which will include a penalty as well as damages, seems- to bo determined by the weight of authority. Thompson on the Law of Electricity, sec. 251. It should, however,
Tbe question as to what would be tbe rule where tbe limitation bad expired, or a reasonable time did not remain when tbe company’s failure to discharge its duty was discovered, does not arise in this case.
Section 883, Revised Statutes, 1879, upon which one of tbe counts in this case is based, is amended by statutes, 1889, section 2725, by increasing tbe penalty and devoting one-half thereof to tbe school fund. This amendment may have an effect on tbe rule we have herein announced; but of this we are not advised.
Tbe judgment is affirmed as to tbe first count and reversed as to tbe second.