Reese v. Western Union Telegraph Co.

• Decision Date: 14 March 1890
• Docket Number: 13,924
• Citation: 24 N.E. 163,123 Ind. 294
• Parties: Reese v. The Western Union Telegraph Company
• Court: Indiana Supreme Court

24 N.E. 163

123 Ind. 294

Reese v. The Western Union Telegraph Company

No. 13,924

Supreme Court of Indiana

March 14, 1890

Petition for a Rehearing Overruled April 12, 1890.

From the Montgomery Circuit Court.

Judgment reversed, with costs.

M. E Clodfelter and J. A. Lindley, for appellant.

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

OPINION

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, Indiana, the following message: "February 21, 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 twenty-five 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 guaranteed 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 wilfully and purposely postponed the transmission of said message out of its order for more than twenty 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 wilfully 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 twenty 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 employees 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 guaranteed.

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 to send and deliver the message was made with the appellee, the appellant's wife was dangerously ill, in fact at the point of death; that the 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 immediate delivery at the time it received the message and the said guarantee.

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 first 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 then 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 and 1122, Elliott's Supp. (Acts of 1885, p. 151), when construed with section 4178, R. S. 1881, and the three sections must be construed together.

It is claimed that the act of 1885 repealed by implication said section 4178. We do not think so; the repealing clause only repeals such laws as are in conflict with the said act. In its scope the act of 1885 does not cover the subject-matter to which said section 4178 relates. There is nothing in the act of 1885 regulating the distance or prescribing the limits within which telegraph companies shall deliver messages. Repeals by implication are not favored, and if a reasonable construction can be found which will enable both the old and the new laws to stand, that construction will be applied. Bush v. Board, etc., 121 Ind. 420, 23 N.E. 275.

It is not alleged that the person to whom the telegram was addressed resided in or within one mile of the city of Crawfordsville.

Penal statutes are to have a strict construction, and to recover a penalty the facts stated in the pleading must clearly show a right to the penalty claimed notwithstanding such strict construction. Hadley v. Western Union Tel. Co., 115 Ind. 191, 15 N.E. 845.

The third paragraph of the answer was pleaded as a partial answer, but it was in bar of all damages except nominal damages.

This paragraph, in substance, is that the appellee was not informed when it undertook to...