The Western Union Telegraph Co. v. Wilson

• Citation: 9 N.E. 172,108 Ind. 308
• Decision Date: 23 November 1886
• Docket Number: 12,832
• Parties: The Western Union Telegraph Company v. Wilson
• Court: Indiana Supreme Court

9 N.E. 172

108 Ind. 308

The Western Union Telegraph Company v. Wilson

No. 12,832

Supreme Court of Indiana

November 23, 1886

From the Monroe Circuit Court.

Judgment reversed, at appellee's costs, and cause remanded, with instructions to the court to sustain appellant's motion for a new trial.

J. H Louden and R. W. Miers, for appellant.

J. W Buskirk and H. C. Duncan, for appellee.

OPINION

Zollars, J.

The evidence establishes the following facts: In December, 1884, appellant, the Western Union Telegraph Company, had two offices in the town of Gosport in this State, situated about eighty yards apart, one on the Indianapolis and Vincennes Railroad, called the upper office, and one on the Louisville, New Albany and Chicago Railroad, called the lower office. It had a line of wire along the line of each of said railroads. That along the line of the Louisville, New Albany and Chicago Railroad led direct from Gosport to Bedford, in this State. Over that line a message could be sent direct from Gosport to Bedford, without being repeated. The wire along the line of the Indianapolis and Vincennes Railroad led to Indianapolis. In order to get a message over that line from Gosport to Bedford, it would have been necessary to send it to Indianapolis, and there repeat it to Lafayette, New Albany, Greencastle or Crawfordsville, and there again repeat it to Bedford.

At about 5 o'clock p. m. of the 22d day of December, 1884, appellee went to the upper office in Gosport, being that on the line of the Indianapolis and Vincennes Railroad, and wrote and presented to appellant's agent a message addressed to Capt. Friedley, at Bedford. The agent told him that the charge for transmitting the message would be thirty cents; that he would not transmit it from that office, and that he, appellee, would have to send it from the other office, being the lower office, on the line of the Louisville, New Albany and Chicago Railroad; that it would go direct from that office. Upon appellee saying that he was in a hurry, the agent told him that he could get a boy to take the message to the other office, and upon appellee saying that he would not do so, the agent told him that he would take it for him. At that time the message, and a half dollar of appellee's money, out of which he requested the thirty cents to be taken, were upon the counter. After the agent had declined to send the message from that office, and after the above conversation, appellee took the message and money from the counter, saying that he would sue the company, went to the other office, submitted the message, and paid the thirty cents, and at fifteen minutes after 5 o'clock p. m. of the same day, the message had been transmitted and delivered to Capt. Friedley at Bedford.

There is no conflict in the evidence as to the above stated facts. The agent at the upper office testified that at the time he instructed appellee to go to the other office, he explained to him that if sent from the upper office the message would have to be forwarded to Indianapolis, and there be repeated to Lafayette or New Albany, and then again be repeated to Bedford.

That testimony was contradicted by appellee only indirectly, if, indeed, it was contradicted at all.

Upon the foregoing evidence, the court below found for appellee, and awarded him the statutory penalty of one hundred dollars.

It will be observed, that the wrong on appellant's part, if there was any wrong as claimed by appellee, occurred in December, 1884, before the passage of the act of 1885, Acts 1885, p. 151. It has been held that that act repealed section 4176, R. S. 1881, upon the same subject, but that such repeal did not release or extinguish any penalty incurred under that section. Western Union Tel. Co. v. Brown, post, p. 538.

If, therefore, appellant was guilty of any wrong, which, under that section, made it liable for the penalty therein provided, appellee may recover it in this action. That section was as follows: "Every electric telegraph company with a line of wires wholly or partly in this State, and engaged in telegraphing for the public, shall, during the usual office hours, receive dispatches, whether from other telegraphic lines or from individuals; and, on payment or tender of the usual charge, according to the regulations of such company, shall transmit the same with impartiality and good faith, and in the order of time in which they are 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 dispatch is neglected or postponed," etc.

That statute was a penal one, and while it must be given a reasonable construction so as to make it subserve the purpose for which it was enacted, it must yet be strictly construed. A party claiming under it must bring his case clearly within the letter and spirit of the act. Western Union Tel. Co. v. Axtell, 69 Ind. 199; Western Union Tel. Co. v. Mossler, 95 Ind. 29; Western Union Tel. Co. v. Kinney, 106 Ind. 468, 7 N.E. 191; Western Union Tel. Co. v. Harding, 103 Ind. 505, 3 N.E. 172.

In the case of Western Union Tel. Co. v. Axtell, supra, it was said: "A court can not create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and the necessary meaning of the act creating it." See, also, Burgh v. State, ex rel., ante, p. 132.

In construing statutes, the prime object is to ascertain and carry out the purpose of the Legislature in its enactment and, while it is the duty of the court to yield to the words of the statute, still, in determining what meaning it was intended to have, it is proper to consider its spirit, the object it was intended to subserve, and the evils it was intended to remedy. Without doing violence to the language of the statute, the words used will be so construed as to bring the operation of the act within the intention of the Legislature. It is said to be an established rule, applicable to the construction of remedial statutes, that cases not within the reason, though within the...