This appeal is prosecuted from the ruling of the trial court in sustaining plaintiff’s motion for new trial in an action for recovery of the penalty imposed by section 1255, R. S. 1899, for failure charged to transmit a telegraphic message. The statement of the cause of action is assailed as defective, as founding the right of recovery not solely upon the failure of transmission, in the language of the statute, *574which, being of a penal character, exacts rigid construction, but also counting upon the failure to deliver the telegraphic dispatch. While the language condemned is employed and reiterated in the allegations of the complaint, the omission of the statutory duty is specifically-charged in the form and words that defendant “carelessly and negligently failed to transmit said message from its office in the said city of St. Louis to its office in the said city of Poplar Bluff,” and bringing the case manifestly within the meaning of the terms of the statute and the spirit and scope of the enactment; the essential allegation being thus made, the unnecessary words respecting actual delivery of the message are redundant and should be rejected or disregarded as surplusage. The grounds moving the court to award a new trial do-not distinctly appear, but from the motion therefor, and the trial as portrayed by the record, it may be justly inferred that the trial judge concluded the finding was against the weight of the evidence. This action on his. part was plainly within his discretionary powers and in absence of evidence of abuse of such power, of which this record contains no suggestion or suspicion, his ruling should not be disturbed. Stewart v. Todd, 92 Mo. App. 1, and authorities therein cited.

Judgment affirmed.

I agree that the order of the trial court granting a new trial shall stand, for the reason I think the allegation of the petition, that it was the duy of defendant to transmit and deliver the message, correctly stated the measure of defendant’s duty. Parker v. Western Union Tel. Co., 87 Mo. App. 553. And for the further reason that the evidence shows the defendant did not transmit the message within a reasonable time.