Kirby v. Western Union Telegraph Co.
| Decision Date | 15 December 1893 |
| Citation | 57 N.W. 202,4 S.D. 463 |
| Parties | KIRBY v. WESTERN UNION TEL. CO. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. Section 3910, Comp. Laws, provides that "every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto." The $50 recoverable under this section, in addition to the actual damages sustained by the party, is in the nature of a penalty imposed upon the carrier for a failure to comply with the provisions of the chapter therein specified.
2. The statute, as to the $50 recoverable in addition to the actual damages, being penal in its nature, must be strictly construed.
3. One seeking to recover such penalty must state specially every fact requisite to enable a court to judge whether or not he has a cause of action against the defendant, under the statute.
4. A failure to so specially allege the requisite facts will not be cured by an allegation that defendant's refusal to transmit the message tendered was "without reasonable grounds for refusing so to do." Such allegation does not state any fact, but a mere conclusion of law.
Appeal from Minnehaha county court; E. Parliman, Judge.
Action by Joe Kirby against the Western Union Telegraph Company to recover a penalty for breach of duty. Plaintiff had judgment and defendant appeals. Reversed.
Bailey & Voorhees, (George H. Fearons, of counsel,) for appellant. A. C. Boylan and Joe Kirby, for respondent.
This was an action originally commenced in the city justice's court of the city of Sioux Falls to recover a judgment for $61. A judgment was rendered in favor of the defendant, from which an appeal was taken to the county court of Minnehaha county, where a judgment was rendered for the plaintiff, from which judgment the defendant has taken an appeal to this court. One of the important questions presented by the record in this case was decided by this court in a case with the same title reported in 55 N.W. 759. The only question therefore, which we shall consider on this appeal, is as to whether or not the plaintiff could recover the penalty provided by section 3910, Comp. Laws, under the complaint in this action.
The complaint on which the case was tried in both the city justice court and the county court, to which it was appealed is as follows: The defendant, for answer, denied the allegations of the complaint, and denied that the plaintiff had sustained any damages whatever. Subsequently, the defendant pleaded orally certain facts as a defense to the action, not necessary to be stated for the purposes of this action. The case was tried by a jury, and at the conclusion of the trial the counsel for the defendant moved the court to direct the jury to find a verdict for the defendant. This the court denied, and thereupon the counsel for the plaintiff And the court instructed the jury as follows: "I shall direct you to find a verdict of fifty dollars for the plaintiff." The jury thereupon returned a verdict for the plaintiff for that amount, upon which a judgment in favor of the plaintiff was rendered. "It was conceded that it was not necessary for the plaintiff to prove actual damages, in order to recover the statutory penalty under section 3910, Comp. Laws." That question, therefore, is eliminated from this case.
The learned counsel for the appellant contends that while the complaint might be sufficient, at common law, to entitle the plaintiff to recover the actual damages sustained by him by reason of the failure of the defendant to transmit the message presented for transmission, it is insufficient to entitle him to recover the sum of $50 given by statute in addition to the actual damages, as that sum is in the nature of a penalty provided by statute, and that, to entitle a party to recover such penalty, all the facts showing his right thereto must be specifically pleaded. The learned counsel for the respondent insists that the sum in addition to the actual damage is not a penalty, but that the statute is remedial, and is to be liberally construed. In support of this proposition the counsel cites Koons v. Railroad Co., 23 Iowa, 494, and two other authorities to which we do not have access. We are of the opinion that the case cited from Iowa has no application to the case at bar. It appears from that case that a statute existed giving to parties whose stock should be killed by a railroad company double damages in a case where payment had not been made within 30 days, but no fixed sum was given by the statute. The double damages were held not to be a penalty, under the provisions of the statute. But under our statute a party is authorized to recover, in addition to his actual damages, the specific sum of $50, and this is recoverable without regard to the amount of actual damages recovered. In the case at bar the plaintiff recovered no actual damages, but the $50 only. The language of the statute is, the plaintiff "is entitled to recover from the carrier his actual damages and fifty dollars in addition thereto." The sum of $50 seems to be no part of the actual damages, as the party is entitled to recover the actual damages without regard to the $50, which is given as an addition thereto. It is not given as costs, for costs are provided for by another statute. It would seem, therefore that it was imposed upon the carrier as a pecuniary punishment for his failure to...
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