275 S.W. 570 | Mo. Ct. App. | 1925
"Arthur, Ill. Aug. 28, 1923. "Vene Williams, "West Plains, Missouri.
"Send one load of steer calves as heifers have to be T.B. tested to ship in this State. Let know if you ship them at once.
"Signed. BOB STEVENS."
The message, as delivered to plaintiff, read as follows:
"Arthur, Illinois. Aug. 28, 1923. "To Verne Williams, "West Plains, Missouri.
"Send one car load of steers and heifers have to be T.B. tested to ship in this state. Let know if you ship them at once.
"Signed. BOB STEVENS."
Defendant had printed on the back of each telegraphic blank, among others things, two provisions which are involved in this case. One provision was that: "The company will not be liable for damages or statutory penalties in any case where the claim is not presented is writing within sixty days after the message is filed with the company for transmission." There was a further provision, that the company's liability at the unrepeated message rate should not exceed five hundred dollars. Plaintiff obtained judgment for $649.47, from which defendant appeals.
The principal contention made by defendant is that its demurrer to the evidence should have been sustained on the theory that plaintiff failed to prove that he gave proper and timely notice of his claim. Defendant, by its answer, pleaded failure on the part of plaintiff to serve such notice within sixty days as provided by the *371 stipulation on the back of the telegram blank which the answer sets out in full. Plaintiff, by his reply, denied that he was bound by such stipulation and further denied that he failed to present his claim within sixty days from the receipt of said message.
Preliminary to a consideration of this question, we shall dispose of plaintiff's contention that since defendant failed to introduce in evidence any proof of the provisions on the back of the telegram blank, such provisions are not in the record and therefore may not be considered by this court. Defendant attempted to introduce a blank telegram in evidence showing such provision, but the trial court refused to permit its introduction on objection by plaintiff that the original was the best evidence. Plaintiff would be bound by such provision whether on the back of the original telegram or not and the offer to prove such uniform provision was entirely proper. [Western Union Telegraph Co. v. Esteve Bros.,
No proof was offered by either party relative to the giving or failure to give the sixty-day notice. It is unquestionably the law of this State, as plaintiff contends, that the defense based on a failure to give such notice is an affirmative one, and must be proven by the party pleading such defense. [Jessie Covell v. Western Union,
It is thus seen that the highest court of our land has laid down a broad principle that stipulations based on a particular rate or classification made by a telegraph company relative to interstate messages, have the binding effect of a law and neither the company or its patrons may depart therefrom in any particular. If such rate is unreasonable or the stipulations unfair, parties may have their redress by proper procedure. The whole proposition is based on uniformity and equality. In the Esteve case, a stipulation limiting the liability of the company for mistake in transmitting a message to the amount of the portion of the tolls accruing to it, was declared to be binding as a matter of law. In the case of Kerns v. Western Union, supra, the Kansas City Court of Appeals points out that under the Federal *373 decisions, provisions affecting the liability of the common carrier of interstate commerce, cannot be waived and for the same reason, the sixty-day notice may not be waived by a telegraph company. The case of Davis v. Western Union, 236 S.W. l.c. 409, is to the same effect. It then necessarily follows that noncompliance with uniform provisions, such as are here involved, does not constitute a defense the burden of which is cast on defendant, but compliance therewith is part of plaintiff's case, which must be established like any other essential fact necessary to fasten liability upon defendant.
In the case at bar, plaintiff shipped a car of stock, a part of which was not of the kind the buyer ordered by the terms of the original telegram, and therefore, the shipment was refused. The action of plaintiff in procuring and shipping stock contrary to this order was a direct result of defendant's error in transmitting the message. Obviously, no fixed rule may be laid down as the measure of damages for all cases of this nature. It cannot be based on the difference in the price plaintiff was to receive for certain stock and what he did receive, because the stock, as contemplated by the original contract, was never shipped; there was no contract, therefore, as to the stock actually shipped. Under such circumstances, plaintiff's damages would naturally be the difference in what he had paid for the stock and the reasonable market value of the stock at the point of destination or the nearest market, plus a reasonable amount for plaintiff's time and expense in buying, shipping and disposing of said stock, not to exceed in all the sum of five hundred dollars.
It appears plaintiff has indicated he can prove proper and timely notice was given defendant in this case. The cause should not, therefore, be reversed outright. [Kidd v. Zinc Co., 204 S.W. 284.]
The case is accordingly reversed and remanded. Cox, P.J., andBradley, J., concur. *374