Western Union Telegraph Co. v. Young

• Decision Date: 25 January 1884
• Docket Number: 10,870
• Citation: 93 Ind. 118
• Parties: Western Union Telegraph Company v. Young
• Court: Indiana Supreme Court

93 Ind. 118

Western Union Telegraph Company v. Young

No. 10,870

Supreme Court of Indiana

January 25, 1884

From the Monroe Circuit Court.

Judgment affirmed.

J. H Louden and R. W. Miers, for appellant.

J. R East and W. H. East, for appellee.

OPINION

Elliott, J.

This action was brought by the appellee to recover the statutory penalty for the failure of the appellant to transmit and deliver a message.

It is said that the complaint is bad because it does not aver that the penalty is unpaid, but we deem this position untenable. The purpose of such an allegation in an action on a contract is to show a breach by non-payment, but in actions on torts or for penalties there is no necessity for showing a failure to pay the damages or the penalty.

Complaint is made of the ruling on demurrer to the third paragraph of the answer. The general theory of this paragraph is that the company was absolved from liability by a contract with the sender of the message, stipulating that the extent of the liability should be twenty-five cents, and as such a contract is invalid the answer is bad. Western Union Tel. Co. v. Fenton, 52 Ind. 1; Western Union Tel. Co. v. Meek, 49 Ind. 53; Western Union Tel. Co. v. Buchanan, 35 Ind. 429 (9 Am. R. 744); Western Union Tel. Co. v. Adams, 87 Ind. 598; S. C., 44 Am. Rep. 776.

A pleading is to be judged from its general tenor and scope, and not from detached or isolated allegations. Where, as here, the controlling theory upon which the pleading proceeds is that there is a contract absolving from liability, it must be good on that theory or it will not be good at all. A pleading assuming to proceed on a definite theory can not be made good on some other by casting into it isolated and subsidiary statements, which if fully pleaded in a separate paragraph might constitute a defence. Mescall v. Tully, 91 Ind. 96; Platter v. City of Seymour, 86 Ind. 323; Johnston v. Griest, 85 Ind. 503; Jackson School Tp. v. Farlow, 75 Ind. 118; Neidefer v. Chastain, 71 Ind. 363 (36 Am. R. 198); Kimble v. Christie, 55 Ind. 140.

The instructions, considered as a whole, and it is our duty to so consider them, express the law quite as favorably to the appellant as it had any right to ask. It is not proper to detach one instruction from the others, and assail it on the ground that it does not fully or accurately state the law for it is not to be expected that one instruction will do this. All that can be reasonably asked is that the instructions, taken as an entirety, shall, without contradiction,...