Western Union Tel. Co. v. Henley

• Decision Date: 05 October 1899
• Citation: 54 N.E. 775,23 Ind.App. 14
• Parties: WESTERN UNION TEL. CO. v. HENLEY.
• Court: Indiana Appellate Court

23 Ind.App. 14

54 N.E. 775

WESTERN UNION TEL. CO.

v.HENLEY.

Appellate Court of Indiana.

Oct. 5, 1899.

Appeal from circuit court, Lawrence county; David J. Hefron, Judge.

Action by Flora Henley against the Western Union Telegraph Company to recover damages for failure to deliver a dispatch. From a judgment in favor of plaintiff, defendant appealed. Reversed.Louden & Louden, S. O. Pickens, Geo. H. Fearons, A. N. Chambers, Chas. W. Mories, and Robt. F. Davidson, for appellant. Henley & Wilson, for appellee.

BLACK, J.

The complaint of the appellee, Flora Henley, against the appellant, contained two paragraphs. In the first it was sought to recover the statutory penalty of $100 for failure to transmit a certain telegraphic message with impartiality, and in good faith, and in the order of time in which it was received. In the second paragraph the appellee demanded special damages for like failure. A demurrer to each paragraph for want of sufficient facts was overruled. It is suggested by the appellee that it appears from the record that the verdict in favor of the appellee was based upon the second paragraph alone, and that, therefore, the question as to the sufficiency of the first paragraph of the complaint is immaterial. In the second paragraph, as originally filed, the appellee demanded judgment for special damages in the sum of $1,000. This paragraph was amended so as to make demand for judgment in the sum of $1,895 as special damages. In the general verdict the jury found for the plaintiff, and assessed her damages in the sum of $5,000. The jury found specially, in answer to one of the interrogatories submitted to them, that the appellee sustained damages in the sum of $5,000 “by reason of no one meeting her at the train when she arrived.” Pending a motion for a new trial, the appellee entered a remittitur for all the sum awarded by the verdict except $1,895, the amount demanded as damages in the second paragraph of the complaint, and for this sum the court, after overruling the motion for a new trial, rendered judgment. We think it sufficiently appears from the whole record that the recovery was upon the second paragraph alone, and therefore we agree with counsel that there could be no reversible error in the overruling of the demurrer to the first paragraph. In the second paragraph of complaint it was shown that the message was delivered to the appellant's agent at Greencastle Junction, and the contract was made with him for its transmission, on Sunday, the 1st day of September, 1895, and it was sought in the pleading to show that the transmission of the dispatch on that day was a work of necessity. The message set forth in the pleading was as follows: “Greencastle Junction, Ind., Sept. 1st, 1895. To Violet Chollar, 1606 Vermont Ave. N. W., Washington, D. C.: Arrive, Baltimore and Potomac, Monday, 1:30 p. m. Flora.” It was alleged “that it was necessary that said dispatch should be transmitted on said 1st day of September, 1895, in order to relieve suffering, avert harm, and prevent serious loss of health and life, and that the defendant's agent at said Greencastle Junction, then and there had knowledge of such necessity.” The appellee, in her complaint, based upon the contract, having expressly shown it was a contract made on Sunday for the transmission of a telegraphic dispatch on that day, and having attempted to show that the contract relied upon was not void, under the statute, by stating matter intended to bring it within the exception expressed in the statute, it was necessary to the sufficiency of the pleading that the validity of the contract be properly shown thereby. The invalidity of the contract was not a matter of defense, but the burden was upon the plaintiff to state facts establishing its validity. Telegraph Co. v. Yopst, 118 Ind. 248, 20 N. E. 222. In such case it is essential for the avoidance of the statutory inhibition of such a contract made on Sunday that there existed a reasonable necessity for sending the message on that day, and that the telegraph company had notice of that necessity. This reasonable necessity, and also the notice thereof to the company, may, in many cases, be sufficiently shown by the contents of the dispatch itself; and, if the language of the message be not sufficient for such purposes, the necessity and the notice to the company may be shown by the averment of extrinsic facts. Telegraph Co. v. Yopst, supra. In that case the court quoted approvingly from Flagg v. Inhabitants of Millbury, 4 Cush. 243, the following language: “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.” While it is sufficient, to constitute the reasonable necessity which will bring the case within the exception expressed in the statute, if there be a moral need or propriety, under the circumstances of the particular case, yet the fact that it will be conducive to pecuniary profit or business success, or will subserve the convenience of the sender, is not sufficient to constitute such reasonable necessity, and a dispatch whose contents would sufficiently notify the company, on a day other than Sunday, of the importance of promptness in forwarding and delivering it, and of the character of the damage which might reasonably be apprehended from delay or failure to transmit, might not be sufficient to apprise the company of the reasonable necessity of transmitting the same dispatch if presented on Sunday. If the sending of the message is necessary “in order to relieve suffering, and avert harm, and prevent serious loss of health and life,” and the company's agent, when he receives the dispatch, has knowledge of such necessity, either from the contents of the message or from extrinsic facts of which he has information, this will be sufficient to validate the contract. A Sunday message as follows: “Meet the E. T. train at 3 o'clock,” did not show on its face that its subject-matter concerned anything in the nature of charity or necessity. Willingham v. Telegraph Co., 91 Ga. 449, 18 S. E. 298. A message, the object of which was to apprise the sender's mother that a certain friend of the family would be with her, to take dinner in company with the sender, was held to be wholly wanting in any character of necessity or charity, and the court expressed the opinion that neither of these characters is to be assumed by mere presumption, and without any proof whatever. Telegraph Co. v. Hutcheson, 91 Ga. 252, 18 S. E. 297. In Telegraph Co. v. Yopst, supra, it was held that a message reading, “Bring forty dollars if you want record,” did not show a reasonable necessity for sending the dispatch on Sunday. In Rogers v. Telegraph Co., 78 Ind. 169, the message for the transmission of which the contract was made on Sunday was: “Come up in morning. Bring all.” It was said by the court that upon their face these words implied a friendly invitation to visit the sender, and that such a message could not be regarded as a “work of necessity,” within the meaning of our statute.

The message set forth in the complaint bore as a signature a feminine Christian name, and by its terms, if transmitted, would inform the sendee, named Violet Chollar, that the sender would arrive at Washington, by the Baltimore & Potomac Railway, the next day, at 1:30 p. m. On its face the message did not disclose the purpose of the journey, or indicate the age or condition of the sender or sendee, or the relation between them, or whether the sender was traveling alone, or with an escort, or with others under her care. It did not purport to be a request for any person to meet her, or to provide a conveyance for her. It did not show that it was sent in response to any message, or suggest the illness of any person, or a desire that the coming of the sender should be communicated to any person besides the sendee. It was a simple announcement of the time of the sender's expected arrival in Washington, and the purpose to be accomplished by sending it, so far as it showed, might have been such that its sending could not be regarded as a necessity, within the meaning of the statute. Its sending might be a means of furthering convenience, or promoting a political purpose or a business undertaking, or might be a mere courtesy, not specially demanded by any exigency, and which, however proper, might have been as well performed another day. We think it cannot properly be said that a reasonable necessity was shown in the contents of the message. The pleader, possibly taking this view, sought to show by the allegation of extrinsic matter, taken in connection with the contents of the dispatch, the necessity and notice thereof to the company. In addition to the allegation which we have quoted, the pleader, further on in the complaint, stated some facts which indicated a reasonable necessity, but did not show that the company was informed of such facts. No attempt to show notice to the company was made, except in the language above quoted. It is the office of a pleading under the code procedure to state issuable facts, to show what was done or what was not done, so that, looking to the acts and omissions stated, the court may, by applying the law thereto, determine whether a cause of action or a defense has been shown. It is not proper, omitting the facts, to state their supposed legal force or effect. Plainly, it would not be sufficient merely to state that it was necessary to send the dispatch on Sunday, and that the company's agent had knowledge of said necessity. It does not seem to change the character of the pleading to state simply that the transmission was necessary for a named purpose of a general character such that, if the facts were stated...