The Western Union Telegraph Company v. Ferris
| Decision Date | 19 September 1885 |
| Docket Number | 10,709 |
| Citation | 2 N.E. 240,103 Ind. 91 |
| Parties | The Western Union Telegraph Company v. Ferris |
| Court | Indiana Supreme Court |
From the Shelby Circuit Court.
The judgment is affirmed, with costs.
J. E McDonald, J. M. Butler and A. L. Mason, for appellant.
E. P Ferris, W. W. Spencer and J. S. Ferris, for appellee.
This was an action to recover the penalty prescribed by section 4176, R. S. 1881, against telegraph companies negligently failing to transmit messages delivered to them during usual office hours.
The complaint avers that, on the 2d day of December, 1882, the plaintiff delivered a certain message to the defendant's operator, at its office in Shelbyville, Indiana, for transmission to Chicago, Illinois, and that according to its regulations he paid to it forty cents as the price of such service. The message to be sent is set out in the body of the complaint and is in the language following:
It is averred "that the defendant wholly failed and refused to transmit said message," to the plaintiff's damage, etc.
After a demurrer was overruled to the complaint, the defendant answered that, on the 2d day of December, 1882, one Harry C. Chapman delivered to it, at its branch office at the Clifton House in Chicago, Illinois, a certain message directed to John S. Ferris, at Shelbyville, Indiana, a copy of which is attached to the answer as an exhibit, which message, it is alleged, was transmitted to Ferris without delay; that at the time the message was sent by Chapman to Ferris, the defendant's operator, to whom it was delivered at Chicago for transmission, was directed by Chapman to deliver the answer, when it came, at the Clifton House, Chicago, and that Ferris received the telegram so sent. It is then averred that Ferris, "fifty-five minutes after 2 o'clock p. m. of said day, filed in the defendant's office, at Shelbyville, Indiana, the following described message, written upon a blank form furnished by said defendant for use by its patrons, a true copy of which said message and a blank upon which the same was written, said blank containing in print the terms and stipulations upon which the defendant undertook to transmit and deliver said message, is made a part hereof and for identification marked 'Exhibit B.'" It is then averred "that said John S. Ferris did not pay or tender to defendant any money for the transmission and delivery of said message at the time he filed the same in defendant's office," and that he did not direct that the message should be repeated nor pay for repeating it; that the defendant's operator at Shelbyville "did, in due and proper order of time, transmit said message, 'Exhibit B,' from Shelbyville to Chicago, and that the message, 'Exhibit B,' was delivered to the hotel clerk of the Clifton House, Chicago, without delay and in due and proper order of time."
In the paper marked "Exhibit B," filed with the answer we find, following various stipulations, reciting the terms upon which messages are received and sent, the following:
The court below sustained a demurrer to the answer, and, the defendant refusing to plead further, judgment was rendered in favor of the plaintiff below for the statutory penalty. An appeal from this judgment brings the record before us, upon which two questions are made, one of which involves the sufficiency of the complaint, the other the answer.
The learned counsel argue that the statute upon which the action is founded is unconstitutional, in so far as it applies to telegraph messages which are to be transmitted beyond the limits of the State. Taking counsel's premise as true, the conclusion to which the argument leads is, that inasmuch as the telegram was to be sent to another State, the complaint to recover the penalty is bad, for the reason that the statute giving the action is an attempt to regulate inter-state commerce and is therefore void. The question thus made has been considered by this court in several cases, and the constitutionality of the statute has been steadily affirmed. In a recent case, Western Union Tel. Co. v. Pendleton, 95 Ind. 12 (48 Am. Rep. 692), the question was again carefully and exhaustively examined, and the authorities relied on by counsel in this case fully considered, and the deliberate conclusion was reached that the previous rulings would be adhered to. The question should be considered at rest in this tribunal.
Moreover as this question was not suggested in the original brief and argument of appellant's counsel, nor until after the brief for appellee had been filed and the case taken up for consideration by the court, we think it might well be regarded as waived, and for that reason, if we considered the question an open one, we...
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