46 Ind. App. 29 | Ind. Ct. App. | 1910
This is an action to recover the statutory penalty for failing to transmit a telegraph message.
The averments of the complaint show that appellant, on July 25, 1907, had a telegraph line partly within and partly without this State, and was engaged in the business of sending messages from place to place for the general public for hire; that it had for that purpose an office at Shoals, in this State, and one at Cincinnati, Ohio, and that each of said offices was in charge of an agent representing it; that on said day appellee delivered to appellant, through its agent at Shoals, a certain message to be transmitted to a person at Cincinnati, Ohio, and paid thirty-five cents, the charge made by appellant for such services; that it never at any time transmitted said message, but that it remained in the company’s office at Shoals, and was never sent from said office. A demurrer to this pleading was overruled, an exception reserved, and error assigned ín such ruling.
The penalty for a violátion of any of the provisions of said act is fixed at $100. Acts 1885 p. 151, §3, §5781 Burns 1908.
The complaint shows a complete contract made within this State, and a total failure to transmit a message received for that purpose. The facts do not come within the doctrine of the eases cited by appellant, and the demurrer was properly overruled.
The overruling of a motion for a new trial is also assigned as error. The argument in support of this assignment is mainly directed to the sufficiency of the evidence to sustain the finding that the message in question was delivered and the price of transmission paid to appellant’s agent.