Western Union Tel. Co. v. Trumbell

• Decision Date: 14 April 1891
• Citation: 27 N.E. 313,1 Ind.App. 121
• Parties: Western Union Tel. Co. v. Trumbell.
• Court: Indiana Appellate Court

1 Ind.App. 121

27 N.E. 313

Western Union Tel. Co.

v.Trumbell.

Appellate Court of Indiana.

April 14, 1891.

Appeal from circuit court, Starke county; George Burson, Judge.

McDonald, Butler & Snow and A. J. Beverage, for appellant.

Black, C. J.

The appellant questions in this court for the first time the sufficiency of a complaint to recover the penalty prescribed by the act of April 8, 1885, (Acts 1885, p. 151,) for violation of the provisions of that act in the transmission of a telegraphic message. The complaint alleged, among other things, that the appellee placed the message in the hands of the appellant's agent at the appellant's office in the town of Knox, in Starke county, at 5 o'clock and 30 minutes in the afternoon of the 10th day of April, 1888, during the appellant's office hours, and paid the appellant in advance the sum of 25 cents for transmission of the message, which the appellant took and accepted, and undertook and agreed to transmit without delay, with impartiality and good faith, and in the order of time in which it was received; and that the amount received by the appellant as aforesaid was the full amount demanded by the appellant for the transmission of said message. The only portions of the complaint to which objection has been made by the appellant are the following subsequent allegations: “And that said defendant held said dispatch in its said office at the town of Knox, aforesaid, and after the aforesaid agreement had been made, and the pay for transmission had been received, as aforesaid, for the time of eighteen hours, and did not transmit the said dispatch till about 12 o'clock m., April 11th, 1888, and did not transmit said dispatch in order of time in which it was received, and with impartiality and good faith, and without delay, and in the order of time in which it was received.” It is required by the statute of 1885 that the telegraph company, during the usual office hours, shall receive dispatches, whether from other telegraph lines or other companies or individuals; and shall, upon the usual terms, transmit the same “with impartiality and in good faith, and in the order of time in which they are received, and shall in no manner discriminate in rates charged, or words or figures charged for, or manner or conditions of service, between any of its patrons; but shall serve individuals, corporations, and other telegraphic companies with impartiality;” and that any person or company violating any of the provisions of this act shall be liable to the penalty prescribed. The appellant, referring to the portion of the complaint above quoted, claims that, stripped of conclusions of law, the pleading contains merely a statement of the delay of the message. Without intending to hold that the penalty provided for in this statute can be recovered for mere negligence in the transmission of a telegraphic dispatch, we are of opinion that the complaint is not open to objection proposed for the first time in this court. There was a general denial and an affirmative answer.

An assignment of error is based upon the overruling of a demurrer to a reply to the affirmative answer. It is a familiar rule that a bad reply is good enough for a bad answer, and, if we find that the affirmative answer was insufficient, we need not examine the reply. Insurance Co. v. Baker, 71 Ind. 102;Wilhite v. Hamrick, 92 Ind. 594;Scheible v. Slagle, 89 Ind. 323, 326, 327;Telegraph Co. v. Yopst, 118 Ind. 248-259, 20 N. E. Rep. 222. The answer sets out the contract contained in the usual message blank upon which the dispatch in question was written, and relies upon the failure of the appellee to present her claim as stipulated in the following requirement in said contract: “The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message.” There is abundant authority for holding that such a stipulation is reasonable, valid, and binding upon the sender of a message who seeks to recover the statutory penalty. Telegraph Co. v. Jones, 95 Ind. 228; Telegraph Co. v. Meredith, Id. 93; Telegraph Co. v. Wilson, 108 Ind. 308, 9 N. E. Rep. 172; Telegraph Co. v. Yopst, 118 Ind. 248, 20 N. E. Rep. 222; Wolf v. Telegraph Co., 62 Pa. St. 83, Allen, Tel. Cas. 463; Gray, Tel. §§ 34, 35. In Telegraph Co. v. Yopst, supra, it was held that such a provision in the contract does not apply where there is no transmission of the message. The answer before us does not directly allege or deny that the message in question was transmitted, but it refers to the transmission by mention of “the party sending the message,” and by alleging that the appellee did not present her claim “within sixty days after sending the message.” It shows that the message was dated April 10, 1888, and that it was received by the appellant on that day for transmission. The complaint, as already shown, alleged the delivery of the message to the appellant at 5 o'clock and 30 minutes in the afternoon of the 10th of April, 1888, and that the appellant held it for 18 hours, and did not transmit it till about noon on the 11th of April, 1888, and did not transmit it in the order...