49 Ind. App. 172 | Ind. Ct. App. | 1912
Appellee brought this action against appellant to recover a statutory penalty (Acts 1885 p. 151, §5780 Burns 1908), for the latter’s alleged breach of duty.
Issues were formed and submitted to a jury, resulting in a verdict and judgment in favor of appellee for $100. With its general verdict the jury returned answers to interrogatories.
Among other facts the complaint alleges that appellee, on September 8, 1907, at the city of Terre Haute, Indiana, informed appellant that he desired to send a message over its lines and wires to his wife in Boonville, Indiana, if the same could be delivered to her that same day or evening, and if it could not be delivered on that day or evening, he did not want to send it at all, for unless it was delivered on that day, it would be useless to send it; that appellant then and there informed appellee that the message could and would be delivered on that day, whereupon appellee then and there prepared and delivered to appellant, charges demanded prepaid, (omitting the name and address of sendee and sender), the following message: “Late trains prevent being home till morning. ” It is also alleged that appellant negligently failed to transmit said message with impartiality and in good faith, nor in the order of time in which it was received, etc. The answers to interrogatories show that said September 8th was Sunday.
Appellant contends that because the contract was made on Sunday it did not incur the penalty for its failure to transmit the message, unless a necessity existed for its transmission on that day, and that it had no notice of such necessity.
Judgment affirmed.