Western Union Tel. Co. v. Trissal

• Decision Date: 13 December 1884
• Docket Number: 11,530
• Citation: 98 Ind. 566
• Parties: Western Union Telegraph Company v. Trissal
• Court: Indiana Supreme Court

98 Ind. 566

Western Union Telegraph Company v. Trissal

No. 11,530

Supreme Court of Indiana

December 13, 1884

From the Hamilton Circuit Court.

The judgment is reversed, with costs, and the cause is remanded with instructions to the court below to state its conclusions of law against the appellee's right to recover upon the facts as found by it, and to render judgment accordingly.

J. E McDonald, J. M. Butler and A. L. Mason, for appellant.

W. R Fertig, for appellee.

OPINION

Niblack J.

Complaint by Francis M. Trissal against the Western Union Telegraph Company, alleged to be a corporation organized and existing under the laws of this State and to have been engaged in the business of telegraphing for the public, for failing to transmit a telegraphic message in the order of time in which it was received, and for unlawfully neglecting to deliver such message within a reasonable time after it reached its place of destination.

The message, which was sent from Noblesville, in this State, was as follows:

"November 7th, 1883.

"Charles L. Jewett, New Albany, Indiana:

"Parties here to settle, and want to know whether deed will be sent as requested in my letter.

F. M. Trissal."

Issues being joined, and the cause having been submitted to the court for trial, the defendant requested "the court to make a special finding of facts and conclusions of law."

After hearing the evidence, the court made a special finding of the facts as requested. The finding of the court was that, on the 7th day of November, 1883, the plaintiff delivered to the defendant's agent at Noblesville the message herein above set out, at about ten o'clock and fifteen minutes a. m and paid the agent the sum of forty-one cents for its transmission, which was the usual charge for such a message; that the defendant, impartially and in good faith, and in the order of time in which it was received, transmitted the message to its office at Indianapolis, which was a relay station, from which it had to be forwarded to New Albany; that it was received at Indianapolis at about ten o'clock and forty-six minutes a. m. of the same day; that the defendant thereupon in like manner, impartially and in good faith, and in the order of time in which it was received at Indianapolis, transmitted said message to its office at New Albany, where it was received at eleven o'clock and fifteen minutes a. m., also of the same day; that the defendant's telegraphic operator at New Albany took the message off the wires and made a copy to be retained, as was done, in the office; that within from three to ten minutes after the message was so taken off the wires, another copy was given to a competent messenger boy, who started out to deliver it to the person to whom it was sent; that, at that time, Charles L. Jewett, to whom the message was addressed, resided at the Central Hotel, a well known hotel in the city of New Albany, where he had a room and took his meals, and which was within less than one mile of the defendant's telegraph office at that city; that this hotel had a public office for the convenience of its guests and the transaction of its general business; that this office was in charge of a clerk who performed the duties usually pertaining to one in his position, among which were the answering of inquiries concerning persons stopping or residing at the hotel, and the reception of parcels, letters and telegrams, which might be sent to the hotel for its guests; that behind the counter, and on the wall in the office, but in plain view of persons about the office, were boxes numbered in such a way as to correspond respectively with the numbers of the rooms in the hotel, so that each room had its separate and corresponding box into which letters and telegrams for persons occupying it were placed; that although Jewett, on said 7th day of November, 1883, had occupied a room in the hotel for two months, he had never previously received any letter or telegram through the box corresponding to his room, but had received his mail at a box in the postoffice, and all telegrams sent to him at his office, as was known to both the hotel clerk and the messenger boy; that Jewett was a practicing lawyer, and kept his office in a building within three squares of the defendant's office, at New Albany; that when the messenger boy started out to deliver the message he went directly to Jewett's law office, which he found locked, with no one seemingly in charge of it; that learning, on inquiry, that Jewett resided at the Central Hotel, the messenger boy went to the hotel and made further inquiry for him, when he was informed by the clerk that Jewett was not then in the hotel, but was expected, and would be there soon for dinner, the clerk offering at the same time to take the message and deliver it to Jewett; that the messenger boy thereupon handed the message to the clerk, who receipted for the same in the defendant's delivery book, writing therein Jewett's full name as the person to whom it had been delivered; that the message was thus received by the hotel clerk at 11:40 a. m. of the day on which it was sent from Noblesville; that the clerk put the message in the box corresponding with and belonging to Jewett's room; that Jewett was absent from the city of New Albany during the forenoon of that day, and when he went to the hotel for dinner his attention was not, in any way, called to the message in his box; that at 1 o'clock he returned to his office, where he remained during the entire afternoon; that at 6:45 o'clock p. m. he went to his box in the hotel office to get the key to his room, where he...