Western Union Tel. Co. v. Scircle

• Decision Date: 10 October 1885
• Parties: Western Union Tel. Co. v. Scircle.
• Court: Indiana Supreme Court

103 Ind. 227

2 N.E. 604

Western Union Tel. Co.

v.Scircle.¹

Supreme Court of Indiana.

Filed October 10, 1885.

Appeal from Clinton circuit court.

Higinbotham & Bristow, for appellant.

Paige & Bayliss, for appellee.

Elliott, J.

George A. Scircle commenced two actions against the appellant to recover the statutory penalty affixed to a breach of duty. On appellant's motion the actions were consolidated, and in the consolidated action issue was joined. After the issue was joined the plaintiff died, and his widow, Martha J. Scircle, was substituted as plaintiff, and she received judgment for the statutory penalty. One of the contested questions is the right of the appellee to maintain this action. The appellant insists that the cause of action died with the original plaintiff. We cannot assent to this doctrine, for in our judgment the statute prevents the abatement of the action. It is provided that “a cause of action arising out of an injury to the person,” except in the cases designated, “dies with the person of either party,” but it is also provided that “all other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry.” If the cause of action in this case is not for an injury to the person it must survive, for the statute, in broad and explicit terms, declares that all causes of action other than those arising out of an injury to the person shall survive. The cause of action here declared is founded on a statute, and is not for any injury to the person. It is an action to enforce a right created by statute, and does not belong to the class of actions where redress is sought for a personal injury. Under the common-law practice the remedy in such a case as this would be an action of debt. Bac. Abr. tit. “Debt;” 1 Chit. Pl. 125; Corporation v. Eaton, 4 Cranch, C. C. 352; U. S. v. Colt, 1 Pet. C. C. 145;Bogart v. City, 1 Ind. 38.

It is perfectly clear, therefore, that the common law did not regard an action for the recovery of a penalty as an action to recover for an injury to the person, and there is certainly nothing in our statute changing the rule of the common law. Where the statute employs common-law terms having a known meaning it is presumed, unless the contrary affirmatively appears, that the terms were used in their common-law meaning. State v. Burdetta, 73 Ind. 185; S. C. 38 Amer. Rep. 117; Bloom v. Franklin L. Ins. Co., 97 Ind. 478, see page 481. This rule applies here, and we must presume that the words “causes of action arising out of an injury to the person” are used to convey the same meaning as at common law. It is indeed impossible to conceive that any other meaning than that ascribed to them by the common law could be assigned to them. When it is granted, as it must be, that there is a cause of action, and that it is not for an injury to the person, it follows with absolute logical certainty that the cause of action survives by force of the statute.

We agree with counsel that a statute creating a penalty, and conferring upon an individual a right to sue for it, may be repealed at any time before final judgment. Norris v. Crocker, 13 How. 429. This argument, however, is not relevant to the point in dispute, for the question is not whether the legislature may sweep away the penalty, but the question is whether the representative of the person entitled to it may, after his death, continue an action brought by him during his life-time. We do not doubt the soundness of the general rule that a statute giving a penalty does not execute itself, and cannot summarily transfer a penalty to the person for whose benefit it is created without a judicial investigation. But that rule does not govern here. The question is not whether the statute may summarily put the penalty directly into the hands of the person for whose benefit it was created, but the question is, does the statute create a cause of action which may be enforced by due process of law? It is evident from what we have said that Willis v. Legris, 45 Ill. 289, has no application here.

It is the law, as we have often held, that the sender of the message is the party who must sue. W. U. Tel. Co. v. Pendleton, 95 Ind. 12;W. U. Tel. Co. v. Reed, 96 Ind. 196;Seward v. Beach, 29 Barb. 239;Thompson v. Howe, 46 Barb. 287. But he is the party who must sue because the cause of action is in him, and if there is a cause of action it is one that survives, for the reason that it is on a statute and is not for an injury to the person. If the sender had a right of action his death did not destroy it, although he was the proper party plaintiff while living, as the right of action is one that survives. Once it is conceded that he did have a cause of action, and that it was not for an injury to the person, there is no escape from the conclusion that it did survive. The argument of the appellant's counsel that the cause of action was in the sender proves too much for their purpose, for it proves that there was a cause of action on a statute, and consequently that it survives to the representatives of the person to whom the statute gave the right of action.

The complaint is assailed upon the ground that it does not state facts sufficient to constitute a cause of action. One of the reasons assigned in support of this general assault is that the complaint does not allege that the appellant has a line of wires wholly or partly within this state. The complaint alleges that “the defendant is the owner and operator of an electric telegraph with a line of wires running through Clinton county, Indiana, including the stations of Scircleville and Frankfort, in said county.” This we deem sufficient. W. U. Tel. Co. v. Walker, ante, 137. The second reason assigned is that the complaint does not aver that the appellant was engaged in telegraphing for the public for hire. The complaint does aver that the appellant was engaged in telegraphing for the public, and this is the averment which the statute requires. The statute does not require that it shall be averred that the company was telegraphing for the public for hire. W. U. Tel. Co. v. Walker, supra.

The remaining questions arise on the motion denying a new trial, and we will dispose of them in the order in which they are presented in the argument of counsel. It is contended that the finding of the trial court is wrong upon the evidence, for the reason that it appears that the claim was not presented within the time limited by the contract, and we are referred to the cases of W. U. Tel. Co. v. Jones, 95 Ind. 228;W. U. Tel. Co. v. Pendleton, 95 Ind. 12;W. U. Tel. Co. v. McKinney, 5 Tex. Law Rev. 173;W. U. Tel. Co. v. Ray, 2 Tex. Law Rev. 276;Young v. W. U. Tel. Co., 65 N. Y. 163; and Heimann v. W. U. Tel. Co., 57 Wis. 562;S. C. 16 N. W. Rep. 37. We do not question the soundness of the general doctrine that a rule of a telegraph corporation making a reasonable regulation as to the time within which claims will be presented is valid, but we do not believe that the rule can avail in an action to recover a statutory penalty unless the defense is specially pleaded. A defense founded upon a corporate rule limiting the time within which claims shall be presented is an affirmative defense, and not available under the general denial. Where an action is founded on a statute, all the facts that a plaintiff need allege or prove are such as bring the case within the statute, and where a...