Hadley v. Western Union Telegraph Company

• Decision Date: 28 February 1888
• Docket Number: 13,734
• Parties: Hadley v. The Western Union Telegraph Company
• Court: Indiana Supreme Court

15 N.E. 845

115 Ind. 191

Hadley v. The Western Union Telegraph Company

No. 13,734

Supreme Court of Indiana

February 28, 1888

Petition for a Rehearing Overruled June 28, 1888.

From the Hendricks Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to render judgment in favor of Hadley for the sum of $ 16.80 in damages upon the second paragraph of his complaint.

E. G Hogate, R. B. Blake and G. C. Harvey, for appellant.

J. E McDonald, J. M. Butler, A. L. Mason, A. H. Snow and A. J Beveridge, for appellee.

OPINION

Niblack, J.

Henry Hadley brought this action against the Western Union Telegraph Company to recover the statutory penalty, and additional and special damages, for the alleged failure of the company to transmit as well as to deliver a telegraphic message within proper time. The complaint was in two paragraphs.

The first demanded the prescribed penalty of one hundred dollars for a failure to transmit the message with the requisite promptitude, and the second demanded special damages in the sum of five hundred dollars for a failure to deliver the message within time to serve the purposes for which it was intended, alleging the particular facts relied upon to sustain such a demand.

A jury was empanelled to try the cause, and, being instructed so to do, they returned a special verdict, stating the facts as they found them from the evidence.

Hadley thereupon moved for judgment on the first paragraph of the complaint for the sum of $ 100, and on the second paragraph for the sum of $ 16.80, the amount of damages conditionally assessed by the jury, but the court overruled his motion, and instead rendered judgment in favor of the telegraph company.

Questions were reserved below, and are again made here, upon the sufficiency of both paragraphs of the complaint, and that of certain paragraphs of the answer, but the real merits of the controversy are better presented by the special verdict. We, therefore, consider it unnecessary to make any formal rulings upon the pleadings.

The special verdict was as follows: "We, the jury, do make and return the following special verdict in this case: On the 14th day of October, 1886, and for a long time prior to that date, and continuously from that time to the present, the defendant, the Western Union Telegraph Company, was, and has been, an electric telegraph company, duly organized as a corporation and engaged in transmitting telegraphic messages for the public for hire. During all that time the defendant was the owner and operator of a line of telegraph wires extending to and through each of the towns of North Salem and Danville, in Hendricks county, in the State of Indiana, in each of which said towns said defendant had a public office for the accommodation of the public in transmitting telegraphic messages. On said 14th day of October, 1886, one Samuel C. Clay placed in the hands of the defendant's agent at said North Salem office, during the usual office hours thereof, a message notifying the plaintiff that said Clay would take and receive certain cattle which he had before that time purchased of the plaintiff, and for the plaintiff to meet him at the pasture early next morning for that purpose, which message was in the words and figures following, to wit:

'North Salem, Indiana, Oct. 14th, 1886.

'To Henry Hadley, Danville, Indiana:

'Want your cattle in the morning; meet me at pasture.

'S. C. Clay.'

"That said message the defendant then and there undertook and agreed to transmit to said Henry Hadley at Danville, Indiana, the said Clay having then and there paid in advance the usual fee, to wit, the sum of twenty-five cents for the transmission of said message, the full amount demanded of him by said agent on that account. Said agent did not transmit, and the agents of the defendant at Danville, Indiana, did not receive said message for the space of one and one-half hours after it was left by said Clay at said defendant's North Salem office for transmission. Said message was received by the defendant's agent at its said Danville office during the defendant's usual office hours at that place, and, although the plaintiff resided within less than one mile of said office, the defendant's agents at said office, in bad faith, refused to deliver said message to the plaintiff for the space of ten hours, although they were, during all that time, present at said office for the purpose of performing such duties. In thus failing and refusing to deliver said message to the plaintiff, after it was received at said Danville office, the defendant and its agents were guilty of partiality, bad faith and discrimination against the plaintiff in this, to wit, that, at the time of sending said message as aforesaid, as well as long before and long after that time, it was the custom and practice at said Danville office of the defendant and its agents to deliver to its patrons at that point, and to the public generally, like messages to that above mentioned during all the like hours and times that said message lay in said Danville office undelivered to said Hadley as aforesaid.

"At the defendant's Danville office, at the time the message in question was sent, and both before and after that time, it was the practice of Horace Goodwin, during all the hours of the night, to receive and transmit messages over the lines of the defendant to its distant offices, and to receive messages over its lines at said Danville office from its offices at distant points, and to receive and collect the tolls and fees for the transmission of such messages, and account to the defendant or its agents.

"On said 14th day of October, 1886, the plaintiff was the owner of a farm near the town of North Salem, on which he was then and there feeding and grazing a large drove of cattle which he had before that time sold to the said Samuel C. Clay, to be delivered between the 14th and 31st days of October, 1886, at the option of said Clay. Said message was designed by said Clay to notify said Hadley that he, said Clay, would weigh and take said cattle on the morning of the 15th of said month, and the defendant, by its agreement to transmit said message as aforesaid, undertook to notify said Hadley of the option of said Clay to take them at that time. Owing to the wrongful and negligent failure of the defendant to deliver said message promptly, and without delay, as above set forth, the plaintiff received no information whatever of said Clay's election to take said cattle as aforesaid, until 7 o'clock a. m. of said 15th day of October, 1886. At that date, as well as long before and after that time, it was the invariable rule and custom among cattle buyers and sellers throughout said county, and in the neighborhood and vicinity of both said offices of the defendant, to take and weigh cattle sold as above mentioned, at an early daylight in the morning of the day named for the delivery. In pursuance of said rule and custom, and the terms of his contract, the said Clay, by his agent, at daylight on the morning of the 15th day of October, 1886, went to the pasture of the said Hadley and took and weighed and drove away said cattle, the said Hadley not being present either in person or by agent. If said Hadley had received said message before the weighing of said cattle, or if he had received any information from any other source, that they were to be so weighed, he would have been present in person to superintend said weighing and delivery. In the process of weighing and taking of said cattle by said Clay, as aforesaid, and without any fault or negligence on the part of said Clay, said cattle were delayed and detained in the public highway for the space of thirty or forty minutes before they were weighed, on account of the absence of the plaintiff, for whom the agent of said Clay was waiting; by which delay and detention as aforesaid, said cattle were decreased in weight to the amount of four hundred and twenty pounds, and, in value, to the amount of $ 16.80. If the court, upon the facts set forth in the special verdict, should be of the opinion that the law is with the plaintiff, then we find for the plaintiff, and assess his damages at the sum of $ 16.80; but if the court should consider that the law is for the defendant, then we find for the defendant."

The act of 1852, section 4176, R. S. 1881, provided that telegraph companies, engaged in telegraphing for the public, should during the usual office hours, receive dispatches, and, on payment or tender of the usual charge, "transmit the same with impartiality and good faith, and in the order of time in which they are (were) received, under penalty, in case of failure to transmit, or if postponed out of such order, of one hundred dollars, to be recovered by the person whose...