164 Mo. App. 233 | Mo. Ct. App. | 1912
This is an action under section 3330, Revised Statutes 1909, for the penalty given by that statute for failure on the part of defendant to use due diligence in transmitting and delivering a message delivered to it, and for failure to place the same in the hands of the addressee promptly and with impartiality and in good faith.
When the case was called for hearing before this court, counsel for appellant suggested that we had no jurisdiction inasmuch as the construction of the Con
The petition in the case, after averring the failure of defendant to deliver the telegraph message and praying for judgment for the penalty given by the statute, avers that within sixty days after filing the message with defendant for transmission, plaintiff demanded of defendant in writing the payment of the statutory penalty and that defendant had failed and refused to make the payment.
As appears by the abstract of the record, on the blank of the message read in evidence, it is provided, among other things, that the company (defendant) will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission. It is insisted that no proof was made by plaintiff of this demand in writing. If this point was for consideration by the writer of this as an original proposition, he would be inclined to hold that this regulation of the telegraph company
The Court said: “You may object to the letter as; evidence. I am overruling you simply on the identification of the letter. "What’s your objection to the letter? I haven’t seen the letter. I don’t know what’s in it.”
Mr. Smith (counsel for defendant): “Both letters purport to represent two letters written by the company.”
The Court: “Read the letters over and if the court objects to them — ”
Mr. Smith: “I object to the court reading the letters at all.”
The Court: “What’s the objection?”
Mr. Smith: “My objection is that it’s irrelevant to any of the issues in this trial.”
The Court: “What’s the object of offering the letter, Mr. Barnes?”
Mr. Barnes: “I offer the letter for two purposes r First, to show under date of August 15th, we made demand for the payment of the sum we are now suing for, and for the further reason that this letter goes to show that they kept no record whatsoever of the message filed by Mr. Paul for transmission, as this letter
The Court: “I suppose you can prove that, Mr. Barnes?” (Evidently referring to “the further reason.”)
Mr. Barnes: “I don’t have to prove that. I take it from all the circumstances, we are entitled to show the court that there was neither due diligence, prompt • ness or impartiality in the transmission of this dispatch.”
The Court: “I don’t think that would even show that it’s the fact. Why did you have to make a demand before bringing this suit?”
Mr. Barnes: “I am not insisting very much, if the court overruled; all I desire is to see that the record excepts.”
The Court: “You get that altogether wrong. Mr. Smith objects to the introduction of the letter, and I am sustaining Mr. Smith’s objection to the introduction of the letter.” •
Mr. Barnes: “We except.”
This is followed by this entry: “To which ruling of the court plaintiff then and there excepted and saved his exception.”
It appears very clearly from this that the plaintiff, assuming the burthen, which he had imposed on himself, of proving a demand, objection was made as to it, as being irrelevant and immaterial. The court seems to have taken that view, urged by the defendant’s counsel himself and excluded the proof of demand. Counsel for plaintiff clearly and correctly, as we think, assumed that the court held it was not necessary to prove written demand. Counsel for defendant himself objected to proof of written demand as irrelevant to any issue in the case. That counsel now assigns as error the failure to prove demand. He is es-topped from doing this by his own action. The lack
The petition stated a cause of action under the provisions of the penal section upon which the suit is founded. The answer-was a general denial. The trial was before the court without the intervention of a jury. There was evidence tending to prove that on August 10, 1908, plaintiff delivered a telegram, written on one of defendant’s blanks for day messages, at an office of defendant in the Union Station, St. Louis., and to the operator of defendant there in charge of that office, addressed to “E. H. Ham, Care of Conductor Wabash No. 12, Wright City, Mo.,” asking Ham to meet plaintiff that night at a hotel in St. Louis. The message was marked, “Filed 8:08 p. m.” Plaintiff paid the charges demanded for transmission of the message. At the time of delivery of the message to the operator at Union Station plaintiff informed him that Mr. Ham was on the train,, that they could catch him at Wright City and that he (Ham) could come on by the same train to St. Louis and meet plaintiff, otherwise Ham would get off at St. Charles, which is between St. Louis and Wright City, the latter being fifty-four miles and St. Charles twenty-three miles west of St. Louis. The, train on which Ham was a passenger was due at Wright City that night at about nine o’clock, but that night was some ten or fifteen minutes late. Mr. Ham was on the train referred to that night. The next day as he was going west by train, when it reached Wright City he got off the train, met the telegraph operator there, whom he had known for five or six years, and asked him if he had a message for him. The operator told him he had none. It seems that after plaintiff filed the message with the operator at St. Louis, the address was changed by the operator or in the main office of the defendant at St. Louis, from Wright City to St.
We think the evidence was sufficient to bring the case within the penal provisions of section 3330, Revised Statutes 1909. The credibility of the witnesses and the probative weight of the testimony were for the trial court and with its conclusion we cannot interfere. The finding was against defendant for the statutory penalty, and the judgment followed the statute, awarding two-thirds of the penalty to plaintiff and one-third to the school fund.
We discover no reversible error in the record and the judgment of the circuit court is affirmed.