the Western Union Telegraph Company v. Griffin

• Decision Date: 02 April 1891
• Docket Number: 32
• Citation: 27 N.E. 113,1 Ind.App. 46
• Parties: THE WESTERN UNION TELEGRAPH COMPANY v. GRIFFIN
• Court: Indiana Appellate Court

27 N.E. 113

1 Ind.App. 46

THE WESTERN UNION TELEGRAPH COMPANY v. GRIFFIN

No. 32

Court of Appeals of Indiana

April 2, 1891

From the Starke Circuit Court.

Judgment affirmed, with costs.

J. E McDonald, J. M. Butler, A. H. Snow and P. Daniels, for appellant.

OPINION

NEW, J.

This was an action by the appellee against the appellant to recover the penalty of one hundred dollars imposed by the act of April 8, 1885, upon telegraph companies for breach of duty. The complaint is as follows:

"The plaintiff complains of the defendant, and says that at the time of the grievances hereinafter set forth the defendant was, and now is, an electric telegraph company, duly organized as a corporation, and engaged in the business of transmitting telegraph messages for the public, generally for hire, in the State of Indiana, and at the time of said grievances had been, and was, operating an office in the town of Knox, Starke county, Indiana, and another in the town of Monterey, Pulaski county, Indiana, about fourteen miles distant from said town of Knox, and owned and operated at said time a line of wires connecting said towns; that on the 21st day of October, 1888, at one o'clock in the afternoon of said day, plaintiff placed in the hands of defendant's agent, at defendant's office in said town of Knox, during the office hours of said defendant, in substance, the following message, to wit:

'KNOX INDIANA, October 21, 1888.

'DR. EUGENE STEVENS, Monterey, Indiana:

'My daughter is very sick. Come at once.

'EMANUEL GRIFFIN.'

"That plaintiff paid defendant in advance the sum of twenty-five cents for the transmission of said message, which defendant took and accepted, and undertook and agreed to transmit without delay, with impartiality, and in good faith, and in the order of time in which said message was received; that the amount received by the defendant, as aforesaid, was the full amount demanded by defendant for the transmission of said message; that the said Dr. Eugene Stevens resided in the town of Monterey, aforesaid, within less than one mile of said defendant's office therein; that the said defendant held said dispatch, and did not transmit the same to its office in said town of Monterey until four o'clock and fifteen minutes in the afternoon of the 22d day of October, 1888, and did not deliver said message until five o'clock in the afternoon of said day to the said Stevens; that said defendant did not transmit said message with impartiality, and in good faith, without delay, and in the order of time in which said message was received, but on the contrary, in respect thereto, exercised partiality and bad faith; whereby defendant became indebted to plaintiff in the sum of one hundred dollars, which is due and unpaid. Wherefore plaintiff demands judgment against said defendant in the sum of one hundred dollars, and for all other proper relief."

Issues were joined by the appellant answering in general denial. There was a trial by the court, and judgment for the appellee for one hundred dollars and costs. At the same term the appellant filed a motion, and affidavits in support thereof, asking that the judgment be set aside, on the ground that the same was taken through the "mistake, inadvertence, surprise, and excusable neglect" of the appellant, which motion was overruled by the court, and excepted to at the time by the appellant.

The errors assigned call in question the sufficiency of the complaint, and the action of the court in overruling the motion to set aside the judgment.

The first objection taken to the complaint is, that there is in it no reference to the statute which imposes the penalty, and that it can not be known from the averments in the complaint whether the action is to recover the statutory penalty or to recover damages for breach of contract.

In some of the States it is, by statute, required, in actions for the recovery of a penalty, or forfeiture, to indorse on the process, or in the complaint refer to the act fixing the penalty; but there is nothing in our civil procedure act exacting this. And besides, the statute here involved is one of which the courts will take notice. We are of the opinion that, in declaring upon this statute, it is only necessary to state such facts as will bring the case within it. If the complaint contains averments which bring the case clearly within the letter and spirit of the statute, it would seem to be sufficient. Western Union Tel. Co. v. Axtell, 69 Ind. 199.

In this case we think it reasonably plain that the appellee is seeking to recover the penalty provided by statute.

It is next urged against the complaint that it fails to allege that the message was offered and accepted "upon the usual terms." It is insisted that these words may not be omitted, because of the familiar rule that penal statutes are to be construed strictly.

We do not favor the view that before the penalty can be incurred the message to be transmitted must be received upon no other terms or conditions whatever than those usually stipulated between the company and its patrons. We are not prepared to hold that if the company should receive for the transmission of a message less than the usual rates, or more, it could thereby effectually bar a recovery of the penalty, whatever may have been its conduct in other respects. If the object of the statute was simply to protect the individual, it might be said, with some force, perhaps, that if he was a party to a discrimination in his own favor, he ought not to have the benefit of the statute; but this enactment was not so much for the protection of the person who might be injured by the failure of the company to perform its duty to him (for he may have his private action for damages) as it was to secure the prompt action of telegraph companies in the performance of their public duty. Western Union Tel. Co. v. Axtell, supra.

The next fault found with the complaint is, that the contract was made on October 21, 1888, that day being Sunday, and that it is not shown that a reasonable necessity existed for sending the message, or making the contract on that day.

Ordinarily, a contract made on Sunday is invalid, and the parties to it will not be compelled to perform it, unless it be shown that there was a reasonable necessity, known to the contracting parties, for the doing of the act, or thing, contracted about.

It appears from the complaint that the act contracted for was within the usual vocation of the appellant, and it was incumbent on the appellee, therefore, to plead facts showing that there was a reasonable necessity for receiving and transmitting the message on that day, and that the appellant knew of that necessity.

Such reasonable necessity, and notice of that fact, may be shown from the contents of the telegram itself, or it may be shown by extrinsic facts. Western Union Tel. Co. v. Yopst, 118 Ind. 248, 20 N.E. 222.

Both reasonable necessity and notice are shown by the message in this case. It was addressed to a doctor, saying:

"My daughter is very sick. Come at once.

"EMANUEL GRIFFIN."

I...