Reese v. Western Union Tel. Co.

• Citation: 24 N.E. 163,123 Ind. 294
• Parties: Reese v. Western Union Tel. Co.
• Decision Date: 14 March 1890
• Court: Supreme Court of Indiana

123 Ind. 294

24 N.E. 163

Reese

v.Western Union Tel. Co.^a1

Supreme Court of Indiana.

March 14, 1890.

Appeal from circuit court, Montgomery county; E. C. Snyder, Judge.

Action by William Reese against the Western Union Telegraph Company for failure to promptly deliver a message. From a judgment in defendant's favor plaintiff appeals. Acts Ind. 1885, p. 151, (Elliott's Supp. Rev. St. 1881, §§ 1120-1122; Rev. St. 1888, §§ 4176, 4176 b,) provides that every telegraph company shall receive and transmit messages with impartiality and in good faith, and in the order of time in which they are received, and that it shall in no manner discriminate between any of its patrons, imposing a penalty of $100 in favor of any person aggrieved by a violation of these provisions. The act then provides: “All laws and parts of law inconsistent with this act are hereby repealed.” Rev. St. Ind. 1881, § 4178, is as follows: “Such companies shall deliver all dispatches, by a messenger, to the persons to whom the same are addressed, or to their agents, on payment of any charges due for the same: provided such persons or agents reside within one mile of the telegraphic station, or within the city or town in which such station is.”

M. E. Clodfelter and J. A. Lindley, for appellant. McDonald & Butler, for appellee.

Berkshire, J.

The complaint is in two paragraphs. The substance of the first paragraph is that on the 27th day of February, 1887, the appellant delivered to the appellee's agent, at its office in Jamestown, Ind., the following message: “February 21st, 1887. Jamestown, Indiana. To A. S. Clements: My wife is very ill; not expected to live. Wm. Reese;” and paid to the appellee the sum of 25 cents, the usual charge for the transmission of like messages to the city of Crawfordsville, and the full amount demanded for transmitting said message, and at the same time the appellant guarantied the payment of all expenses incurred by the appellee in the delivery of said message to the person to whom it was addressed; that the appellee undertook and agreed to transmit and deliver said message promptly; that the appellee acted in bad faith, and with partiality and discrimination, in that it did not transmit and deliver said message in the order of time in which it was received, but willfully and purposely postponed the transmission of said message out of its order, for more than 20 days; that after the transmission of said message from the appellee's office in Jamestown the appellee acted in bad faith, partiality, and discrimination, in this; that it willfully and purposely postponed the delivery of said message out of the order of time in which it was received, and did not deliver the same for more than 20 days after it was so received, and never did deliver it until called for by the said Clements, at the appellee's office, in said city of Crawfordsville; that, during all the time said message lay in the appellee's office in Crawfordsville, the appellee transmitted messages for sundry and divers other persons, and knowingly, purposely, and wilfully gave preference to others, and to the delivery of messages to others; that the said messages so transmitted to the said sundry and divers persons did not contain intelligence of general or public interest, and were not communications for or from officers of justice; that the said Clements then had business rooms rented in said city of Crawfordsville and was preparing to go into business only a few doors from appellee's office; that he had a post-office box rented in the post-office of said city, through which he received his mail during the time the said message lay in the appellee's said office, (the said post-office being but a few doors therefrom;) that the said Clements was well known to the postmaster and the employes in said post-office; that it was the appellee's custom to deliver messages promptly anywhere within five miles of said city, payment of charges being first guarantied. Then follows a demand for $100, the statutory penalty, which it is claimed the appellant is entitled to recover.The second paragraph rests upon a breach of duty because of a failure to deliver the message. It is averred that, when the contract was made to send and deliver the message with the appellee, the appellant's wife was dangerously ill,-in fact, at the point of death; that the said A. S. Clements, to whom the telegram was sent, was a brother-in-law of this appellant, having married his sister, and that the families were on the most intimate terms of friendship; that appellant greatly desired the prompt delivery of said message, and relied on and expected that the same would be promptly transmitted and delivered in accordance with the agreement stated; that the appellee and its agents were fully informed of said facts, and well knew the importance of the immediate delivery at the time it received the message and the said guaranty. It is averred that the said Clements resided during said time not less than one, nor more than two, miles from said city of Crawfordsville; received his mail at the post-office in said city, and had a box in said office through which he received his mail; that he had resided in and within said city for several years before said date, and was well known in said city; that he had then arranged to engage in business there; that the wife of the appellant died in a few days after the said message was transmitted; that if said message had been promptly delivered the said Clements and wife would have been present during the last sickness of appellant's wife, and in time to have conversed with her before her death, and been present until her death and burial; that by reason of their absence, and of the great desire the appellant's wife had expressed to see them before her death, the appellant suffered great uneasiness, anguish, and anxiety of mind. The court at first overruled a demurrer to each of the paragraphs, and the appellee filed an answer in three paragraphs, the fist of which was a general denial. The second paragraph applied to the first paragraph of the complaint, and the third paragraph to the second paragraph of the complaint. The court having afterwards sustained the demurrer to the first paragraph of the complaint, this carried out of the record the second paragraph of answer. The appellant demurred to the third paragraph of answer, which the court overruled, and he saved an exception. He then filed a reply in general denial. The issues joined were submitted to the court without a jury, and, after hearing the evidence, a finding was made for the appellant, assessing his damages at 50 cents. The appellee then moved for a judgment against the plaintiff for costs. This motion was sustained, to which ruling the appellant reserved an exception. The court then rendered a judgment against the appellee for 50 cents, and against the appellant for costs. At the time the court reversed its ruling, and sustained the demurrer to the first paragraph of the complaint, the appellant saved an exception. The errors assigned are that the court erred in sustaining the demurrer to the first paragraph of the complaint in overruling the demurrer to the third paragraph of answer, and in sustaining the motion of the appellee for a judgment against the appellant for costs.

There is not much to be said in reference to the demurrer to the first paragraph of the complaint. We are of the opinion that the averments in the said paragraph did not make a case within sections 1120, 1122. Elliott's Supp. Acts 1885, when construed with section 4178, Rev. St. 1881, and the three sections must be construed together. It is claimed...