Western Union Tel. Co. v. Taylor

• Decision Date: 01 April 1914
• Docket Number: No. 8266.,8266.
• Citation: 57 Ind.App. 93,104 N.E. 771
• Parties: WESTERN UNION TELEGRAPH CO. v. TAYLOR.
• Court: Indiana Appellate Court

57 Ind.App. 93

104 N.E. 771

WESTERN UNION TELEGRAPH CO.

v.TAYLOR.

No. 8266.

Appellate Court of Indiana, Division No. 2.

April 1, 1914.

Appeal from Circuit Court, Martin County; James M. Ogdon, Judge.

Action by Elmore Taylor against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.Pickens, Moores, Davidson & Pickens and Paul G. Henderson, all of Indianapolis, George H. Fearons, of New York City, and H. Q. Houghton, of Shoals, for appellant. Frank E. Gilkison, of Shoals, for appellee.

IBACH, J.

Action to recover a statutory penalty for failure to transmit and deliver at Evansville, Ind., a telegram filed by plaintiff for transmission at Shoals, Ind. The complaint averred discrimination and failure to transmit the message in the order of time in which it was received, and failure to deliver, and alleged that the charge of 31 cents for transmitting and delivering the dispatch was paid at the time of presenting the message for transmission. The errors discussed arise upon the court's overruling appellant's motion for new trial.

Section 5780, Burns 1908, provides: “That every telegraph company with a line of wires wholly or partly within this state, and engaged in doing a general telegraphic business, shall, during the usual office hours, 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.”

Section 5781 provides: “Any person or company violating any of the provisions of this act shall be liable to any party aggrieved in a penalty of one hundred dollars for each offense, to be recovered in a civil action in any court of competent jurisdiction.”

Appellant, in arguing the case, presents five points: (1) Written notice of the claim was not presented to appellant within 60 days; (2) the charges were not prepaid, and such is a condition precedent to recovery; (3) there was no proof that the telegram was not transmitted in the order of receipt; (4) any delay in transmission occurred outside of this state; (5) the message was a subject of interstate commerce. We shall take up these points in order.

[1] A service message introduced in evidence by appellant contained a stipulation printed on the back of the blank on which it was written providing that the company will not be liable for statutory penalties in any case where a claim is not presented to the company in writing within 60 days after the message was filed for transmission. Such a stipulation is valid. Western Union Telegraph Co. v. Yopst, 118 Ind. 248, 20 N. E. 222, 3 L. R. A. 224.

[2] The evidence showed that notice in writing of appellee's claim for the penalty was presented within 60 days to one Irvin, who was telegraphing at the Baltimore & Ohio Railway station at Shoals, Ind., and that the Baltimore & Ohio Railway Company and the Western Union Telegraph Company are both managed at Shoals by Mollett, the station agent, under whom Irvin was an employé; the telegraph office being in the railway station. The stipulation on the message does not designate any particular person to whom the claim must be presented, and we believe that delivery of a notice to a person in charge of appellant's office under circumstances justifying one in believing him appellant's agent is sufficient.

[3] Moreover, in the present case there is an absolute lack of direct evidence that appellee ever entered into a contract to give notice to appellant of an intention to claim the statutory penalty. The blank on which the original message was written was not introduced, and there is no evidence that such blank bore on it any printed contract of any character, or that it was similar to the blank on which the service message was written. The burden was upon appellant to show a contract to give notice, and to show that notice to Irvin was not notice to it, and we cannot say that it has overcome this burden. Western Union Telegraph Co. v. Troth, 43 Ind. App. 7, 84 N. E. 727.

[4] Though appellee, the sender of the message, did not pay the charges to the agent when he offered it for transmission, the evidence is that Mollett, the station agent, as a personal favor either to appellee or to Mr. Gilkison, his counsel, himself paid the charges from his own money, and sent the message as paid; that, so far as the company was concerned, the message was paid for; and that Mollett, as he was accustomed in many instances to do for his acquaintances and friends, personally credited appellee. This being the case, there was nothing due on the message from appellee to appellant, the only debt was from appellee to Mollett personally....