184 Mo. App. 141 | Mo. Ct. App. | 1914
This is a suit for the penalty of $300 prescribed by section 3330, Revised Statutes 1909 for the default of defendant telegraph company in transmitting a message. Plaintiff recovered and defendant prosecutes the appeal.
It appears plaintiff is an oculist, practicing his profession at Bloomfield, Missouri and the Western Optical Company is engaged in selling optical supplies in the city of St. Louis. Desiring to purchase some such supplies from the Western Optical Company., plaintiff prepared the following telegram for transmission from Bloomfield, Missouri, and delivery to the Western Optical Company in St. Louis:
“ Bloomfield, Mo., Aug. 12, 1911.
Western Optical Co.,
Holland Bldg., St. Louis.
Send right-eye len plus 0.50 eye axis. 90 rimless four holes size 00 toric. J. P. Nasep.”
Plaintiff did. not deliver this message personally to defendant telegraph company’s agent at Bloomfield, but requested one Fields to do so for him. It appears plaintiff desired to pay the charges in advance for the transmission of the message, but neither he nor Fields knew the amount of such charge. Therefore, Fields took the message to defendant’s telegraph office and delivered it to the agent in charge, but neither paid nor tendered the fee for transmission. On the contrary, Fields merely ascertained' what the amount of such charge was and reported the same to plaintiff some time during the same day, probably within an hour or two thereafter. The amount of the charge for transmission was seventy cents, and plaintiff paid this to Fields in order that Fields should likewise pay the same to the agent of defendant, and Fields paid such charges to defendant’s agent for transmitting the telegram, but says he does not remember whether he paid it the same day or the day after. It appears the message was transmitted about nine o ’clock in the morning
The petition avers, “that the defendant did not transmit and deliver said message promptly, but that it negligently and carelessly failed to deliver said message to the said Western Optical Company until on or about the 19th day of August, 1911, seven days after the date of the delivery to the agent of defendant.”
The statute (Sec. 3330, E. S. 1909) under which the suit proceeds, as far as relevant here, is as follows: “It shall be the duty of every telegraph . . . company, . . . operating any . . . telegraph line in this State, ... to receive, dispatches from . . . any individual, and on payment or tender of their usual charges for transmitting and delivering dispatches as established by the rules and regulations of such . . . telegraph lines, to transmit and deliver the same to designated address and to use due diligence to place said dispatch in the hands of the addressee, by the most direct means available, without
This statute is penal in character, and, of course, is to be strictly construed. In this view, its sense has been expounded in numerous eases heretofore determined by the appellate courts of the State and the rule of decision thereunder is clearly defined. The ad.judicated cases declare that, in view of the penal character of the statute, no recovery may be had by pursuing the penalty levied, except it appear the party transmitting the message has clearly complied with all of the terms of the statute on his part. The right to recover the penalty is given for the default of the telegraph company with respect only to such messages on the “payment or tender” of the usual charges for transmitting and delivering the same. This is true because the statute is penal and to be strictly construed. When it appears the payment of the charges has not been madé at the time the message was transmitted by the agent of the telegraph company and no tender of the charges made, the penalty prescribed for the defaults enumerated in the statute may not be recovered. [See Brockman Commission Company v. Western Union Tel. Co., 180 Mo. App. 626, 163 S. W. 920; Adcox v. Western Union Tel. Co., 171 Mo. App. 331, 157 S. W. 989.]
It appears that the suit in the instant case proceeds for the failure to promptly transmit and deliver the message. But, it may be, defendant was not negligent with respect to the matter of diligence in transmission, for that was made within a few hours and the message actually tendered to the proper party. However, the statute requires that the message shall