* Headnotes 1. Evidence, 22 C.J., Section 1310 (Anno); 2. Pleading, 31 Cyc., p. 87; 3. Tel. and Tel., 37 Cyc., p. 1731; 4. Commerce, 12 C.J., Section 58; Courts, 15 C.J., Section 318; 5 Tel. and Tel., 37 Cyc., p. 1688; 6. Tel. and Tel., 37 Cyc., p. 1691; 7. Tel. and Tel., 37 Cyc., p. 1769. This is an action for damages for error in transmitting an unrepeated telegraphic message from Arthur, Illinois, to West Plains, Mo., which original message delivered to defendant for transmission was as follows:
"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 *Page 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., 256 U.S. 566.] Moreover, plaintiff's reply practically admitted the existence of the provision as to sixty days' notice, but pleaded he was not bound thereby and denied that he had failed to comply therewith. We may, therefore, consider such provision as an admitted fact. [Kerns v. Western Union, 198 S.W. 1132; Sec. 1256, R.S. 1919.]
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, 164 Mo. App. 630, 147 S.W. 555.] But the message here involved was transmitted from one State to another and constituted interstate commerce. The Federal laws and decisions therefore control. [Jacobs v. Western Union, 196 S.W. 31; Poor Grain Co. v. Western Union, 196 S.W. 28.] We have found no Federal decisions which have decided just where the burden of proof lies *Page 372 in such cases. In so far as interstate messages are concerned, the act of Congress of June 18, 1910, chapter 309, article 7, 36 Stat. at L. 539, has greatly changed any previous conceptions our courts may have had on the subject. In the case of Western Union Tel. Co. v. Esteve Bros., supra, the Supreme Court of the United States uses the following language: "The Act of 1910 introduced a new principle into the legal relations of the telegraph companies with their patrons which dominated and modified the principles previously governing them. Before the act, companies had a common-law liability from which they might or might not extricate themselves, according to views of policy prevailing in the several States. Thereafter, for all messages sent in interstate or foreign commerce, the outstanding consideration became that of uniformity and equality of rates. Uniformity demanded that the rate represent the whole duty and the whole liability of the company. It could not be varied by agreement; still less could it be varied by lack of agreement. The rate became, not, as before, a matter of contract, by which a legal liability could be modified, but as a matter of law, by which a uniform liability was imposed."
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 *Page 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. *Page 374