The Western Union Telegraph Company v. Yopst
Decision Date | 12 February 1889 |
Docket Number | 12,328 |
Citation | 20 N.E. 222,118 Ind. 248 |
Parties | The Western Union Telegraph Company v. Yopst |
Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 5, 1889.
From the Cass Circuit Court.
Judgment reversed, with instructions to sustain the appellant's motion for a new trial.
J. R Coffroth, T. A. Stuart, D. D. Dykeman, W. T. Wilson and G. C Taber, for appellant.
T. J. Tuley and D. C. Justice, for appellee.
The complaint of the appellee is based upon the statute defining the duties of telegraph companies, and prescribing a penalty for a breach of duty. This penalty the appellee seeks to recover.
The principal objection urged against the complaint is that the telegram was received on Sunday, and that as it does not appear that there was any necessity for receiving or transmitting it on that day, the contract which underlies the duty is invalid, and hence no recovery can be adjudged. It is true, as counsel assert, that a contract is essential to create a duty. Rogers v. Western U. Tel. Co., 78 Ind. 169; Carnahan v. Western U. Tel. Co., 89 Ind. 526; Western U. Tel. Co. v. Wilson, 108 Ind. 308, 9 N.E. 172. The complaint must be held insufficient, unless there are facts pleaded establishing a valid contract. Ordinarily a contract made on Sunday is invalid. Rogers v. Western U. Tel. Co., supra, and cases cited; Western U. Tel. Co. v. Wilson, supra. If, however, there is a necessity shown for receiving or transmitting a message on Sunday, then the contract is valid, and will constitute a sufficient foundation for the duty enjoined upon telegraph companies.
A contract to transmit a message regarding ordinary business which can be transacted as well on any other day as on Sunday, is not within the exception to the general rule that ordinary business shall not be transacted on Sunday; but there may be facts which will impress it with the character of a work of necessity, and take the transaction out of the general rule. An emergency requiring immediate action to prevent serious loss or injury may occur in a person's usual vocation which would make the work of delivering and transmitting a telegraphic message one of necessity. This is the principle asserted in our cases, which hold that work or business, within the scope of a person's usual vocation, may be performed or transacted on Sunday when necessary to preserve property or prevent serious loss. Yonoski v. State, 79 Ind. 393; Turner v. State, 67 Ind. 595; Edgerton v. State, 67 Ind. 588; Wilkinson v. State, 59 Ind. 416; Crocket v. State, 33 Ind. 416; Morris v. State, 31 Ind. 189. The necessity which will excuse one who performs work or does business on Sunday is not required to be absolute or imperious, but it must, nevertheless, be a reasonable one. It is not possible to give a definition to the word "necessity" that will fit every case, for what will be just under the facts of one case may be unjust under the facts of another. The statute is intended to secure a quiet Sabbath, and make it a day of rest, on which men shall not be compelled to perform ordinary labor, or permitted to conduct ordinary business; but it is not its purpose to prohibit the performance of work where there is a necessity for its performance in the particular instance, not existing in the usual course of the business of the person who does the act. It punishes persons who work or do business on Sunday, in order to restrain them from transacting business in the ordinary course, but it does not mean to punish a person who does an act on Sunday because the act is necessary to prevent serious loss or injury. Telegraph companies, we judicially know, are permitted to keep open their offices, for the transmission of messages, on Sunday, because there are emergencies, involving sometimes life and sometimes great public and private interests, requiring that messages be transmitted on that day. In many instances it is, as every one knows, of the highest importance and most serious moment that messages should be received and transmitted on Sunday. In determining whether an act is or is not one of necessity, it is proper to give just effect to the nature of the business in which the person who does it is engaged. We must do so here. We know that in many instances the transmission of a message on Sunday may be necessary to prevent great loss, and even to save life; and knowing this we can not do otherwise than hold that the business of telegraphing can not be brought under the same rules as that of a merchant, farmer or mechanic. The merchant who keeps open his shop for business and custom on Sunday the same as on a secular day, by that act violates the law, although he would not necessarily violate it if, upon request, he should sell some article needed at once to prevent serious loss or suffering. The case of a telegraph company is different. It may keep open its offices for the receipt and transmission of messages, where there is a reasonable necessity for transmitting them on that day, although it has no right on that day to do a general business. Messages that may as well be sent on any other day as on Sunday, without causing loss, harm or suffering, it is prohibited from receiving on that day; but messages designed to relieve suffering, avert harm, and prevent serious loss, it may on that day receive and transmit. The view we have taken is not only supported by our own decisions and by those of many other courts, but it is no more than a development of a principle declared by a court which has gone as far as any in the land in enforcing the statutes against Sabbath-breaking. In Flagg v. Inhabitants, etc., 4 Cush. 243, that court said: "By the word 'necessity' in the exception we are not to understand a physical and absolute necessity; but a moral fitness or propriety in the work and labor done, under the circumstances of any particular case, may well be deemed necessity within the statute." It is, as we believe, morally fit and proper that a telegraph company should receive and transmit messages on Sunday, where it is necessary to prevent serious loss. What was said by the court in McGatrick v. Wason, 4 Ohio St. 566, is peculiarly applicable here: "Nor will it do," said the court,
We collect and cite a few of the many cases sustaining our conclusion: Hennersdorf v. State, 25 Tex. Ct. App. 597, 8 S.W. 926; Ashbrandt v. State, 25 Tex. Ct. App. 599, 8 S.W. 927; Dixon v. State, 76 Ala. 89; Parmalee v. Wilks, 22 Barb. 539; Murray v. Commonwealth, 24 Pa. 270.
As the appellee's complaint shows that the contract was made on Sunday, the burden is upon him to show that a necessity existed for making the contract on that day. Troewert v. Decker, 51 Wis. 46, 8 N.W. 26. This is so, because he seeks to enforce a penalty inflicted by way of punishment and not given by way of compensation. It is essential to his cause of action that he should show a valid contract. The case is not governed by Heavenridge v. Mondy, 34 Ind. 28, for here the action is to recover a statutory penalty, and the plaintiff must show an effective contract in order to bring himself within the terms of the statute on which alone his action is based. Here, too, the act contracted for was within the usual vocation of the telegraph company, and as it was done on Sunday and the contract for its performance made on that day, the contract was prima facie invalid. Principle and authority require that, in order to enable the plaintiff to recover a statutory penalty for an act done on Sunday, he should show that the defendant was guilty of a wrong, and to accomplish this it is incumbent upon him to show that the contract was legal. One who procures another to make a contract forbidden by law, ought not to be permitted to avail himself of the contract to enforce a statutory penalty for a breach of duty springing from the contract, unless he shows that there was a necessity for making the contract, and so brings his case within the exception created by the statute.
Where a plaintiff undertakes to plead and avoid a defence, his complaint will be bad if he does not avoid the defence he assumes to state. If he states a valid defence without avoiding it, he destroys his cause of action. He is not bound to anticipate a defence, but if he undertakes to do so and goes no further than to state a defence, he nullifies his complaint. Locke v. Catlett, 96 Ind. 291, 294; Keepfer v. Force, 86 Ind. 81; Reynolds v. Copeland, 71 Ind. 422.
To avoid the defence which the statute forbidding the making of contracts on Sunday creates, it was incumbent upon the plaintiff, after having alleged that the contract was made on Sunday, to plead facts showing that there was a reasonable necessity for making the contract on that day, and that the defendant knew of this necessity. If a defendant enters into a contract prohibited by law, he can not be compelled to perform it, or to respond in damages to the person with whom he contracts. An illegal contract can not, as between the immediate parties, be the source of a legal right. Where the only road to a recovery is by way of an illegal contract, the courts will not assist the parties to the contract in travelling it, but where there can be a recovery without the aid of the illegal contract, a recovery may be adjudged. Pape v. Wright, 116 Ind. 502, 19 N.E. 459; Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, 19 N.E. 453. Here, there can be no recovery if the contract was illegal, since the...
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Western Union Tel. Co. v. Yopst
... ... Appeal from circuit court, Cass county; Lyman Walker, Judge.Action by George A. Yopst against the Western Union Telegraph Company to recover the statutory penalty for breach of duty. There was a judgment for plaintiff, and defendant appeals.[20 N.E. 223]Coffroth & Stuart ... ...