4 S.D. 463 | S.D. | 1893
This was an action originally commenced in the city justice’s court of the city of Sioux Falls to recover a judgment of $61. A judgment was rendered in favor of the defendant, from which an appeal was taken to the county court of Minnehaha county, where a judgment was rendered for the plaintiff, from which judgment the defendant has taken an appeal to this court. One of the important questions presented by the record in this case was decided by this court in a case with the same title reported in 55 N. W. 759. The only ques tion, therefore, which we shall consider on this appeal, is as to whether or not the plaintiff could recover the penalty provided by Section 3910, Comp. Laws, under the complaint in this action.
The complaint on which the case was tried in both the city justice court and the county court, to which it was appealed, is as follows: “November 21st, 1891. Case called with both parties in court, by their attorneys; F. L. Rowland attorney for plaintiff, and Bailey & Voorhees, attorneys for defendant. And plaintiff, for cause of action, complains and alleges orally that the defendant is indebted to him in the sum of sixty-one dollars as damages due from said defendant for refusing to transmit a
The learned counsel for the appellant contends that while the complaint might be sufficient, at common law, to entitle the plaintiff to recover the actual damages sustained by him by reason of the failure of the defendant to transmit the message presented for transmission, it is insufficient to entitle him to recover the sum of §50 given by statute in addition to the actual damages, as that sum is in the nature of a penalty provided
The statute, being penal in its character, must be strictly construed. Shaw v. Tobias, 3 N. Y. 188; Cole v. Smith, 4 Johns, 193; Bigelow v. Johnson, 13 Johns, 428; Austin v. Goodrich, 49 N. Y. 266; Ferritt v. Atwill, 1 Blatchf. 151; Brown v. Harmon, 21 Barb. 508; Suth. St. Const. C. 12.
It is a well settled rule that, in declaring for offense against a penal statute, the plaintiff is bound to set forth specifically the facts on which he relies to constitute the offense. Section 3910, under which plaintiff claimed to recover, reads as follows: “Every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto. ” It will be observed that the language used is, “contrary to the provisions of this chapter.” The chapter in which the section is found is chapter 5. Section 3882 of that chapter provides as follows: “A common carrier must, if able to do so accept and carry whatever is offered to him, at a reasonable time and place, of a kind that he iiliCitis j: is u
Counsel for respondent further contends that the allegation of the complaint, “without reasonable grounds for refusing so todo,” sufficiently shows that the plaintiff had performed all the acts required to be performed on his part; but we cannot so consider that allegation, if it can be called an allegation. It states no fact, but simply a conclusion of law. The facts should have been stated, and it would then have, presented a question of law for the court to decide whether or not, upon the facts stated, the defendant had reasonable grounds for its refusal to transmit the message.
The respondent ais 3 insists that under the code the complaint is sufficient, as the old rules of pleading have been abrogated by the code. If it is true that all distinctions as to the forms of actions have been abolished, but the substance still remains; snd the facts constituting the cause of action must be stated as fully now as under the old common-law system of pleading, and in many cases with even more particularity than was required under that system. Judgment reversed, and a new trial ordered.