50 Ind. 181 | Ind. | 1875
Lead Opinion
The appellee sued the appellant to recover the penalty of one hundred dollars provided for in the first section of the act “ to regulate electric telegraph companies,”' 1 G. & H. 611.
The complaint was originally in two paragraphs; the first, counting on the penalty, the second on special damages. But. the second paragraph was subsequently withdrawn, and the case proceeded on the issues formed on the first.
The first paragraph charges, in substance, that the defendant on March 31st, 1870, was an electric telegraph company, duly organized as a corporation, and engaged, under the laws of Indiana, in the business of transmitting telegraphic messages-for hire; that she had an operating office at Stockwell, Indiana, and another at Fairbury, Illinois, connected by her wires ; that on said day the plaintiff delivered at the Stockwell office for transmission to Fairbury the following message, duly prepaid :
“ Stockwell, March 31st, 1870.
“ Dr. M. L. Hamilton, Fairbury, Illinois: George died at five o’clock this afternoon. Funeral to-morrow at five o’clock. N. W. Hamilton.”
It was further alleged, that the party to whom the message was addressed resided in Fairbury, within less than a mile of the defendant’s office; and that the defendant wholly failed to transmit said message, whereby it became liable to the plaintiff in the sum of one hundred dollars, “as penal damage® provided and fixed by statute.”
A demurrer filed to the above paragraph was overruled by the court, and an exception was taken.
The company then answered as follows: “ For answer to the first paragraph of said plaintiff’s amended complaint, said defendant saith, that she admits that she is an incorporated company, as charged, and that on the 31st of March, 1870,
To this answer the appellee filed a demurrer, which was sustained. The company declined to answer over, and judgment was rendered for the statutory penalty of one hundred dollars in favor of the plaintiff.
The errors assigned are the overruling of the demurrer to the first paragraph of the complaint, and the sustaining of that to the answer.
The sections of the statute on which the action is brought are as follows:
“ Sec. 1. That every electric telegraph company, with a line of wires wholly or partly in this State, and engaged in telegraphing for the public, shall, during the usual office hours, receive despatches, whether from other telegraphic lines or from- individuals; and, on payment or tender of the usual charge, according to the regulations of such company, shall * transmit the same with impartiality and good faith, and in the
“Sec. 2. Telegraph companies shall be liable for special damages occasioned by failure or negligence of their operators or servants, in receiving, copying, transmitting or delivering despatches; or for the disclosure of the contents of any private despatch to any person other than to him to whom it was addressed or his agent.
“ Sec. 3. Such companies shall deliver all despatches, by a messenger, to the persons to whom the same are addressed, or to their agents, on payment of any charges due for the same; provided, such person or agents reside within one mile of the telegraphic station, or within the city or town'in which such station is.” 1 G. & H. 611, 612.
No objection to the complaint is urged by counsel for appellant in his brief. Indeed, counsel expressly waive the first assignment of error, and rest the fate of the case exclusively on the second.
The position of counsel with reference to the second alleged error is, in substance, as contained in the answer. It is urged, that as the statute creating the liability is a penal statute, it must be construed strictly. We recognize the rule. But it does not warrant a construction which would defeat .entirely the operation of the law in very many cases.
It is claimed, that as the act of negligence, which prevented the message from reaching its destination, occurred out of the State, the company is not liable to the penalty. This position, we think, is untenable. The first section of the statute expressly mentions and applies to companies with a line of wires partly in the State, as well as companies with a line of wires wholly in the State. The object, of the legislature in
The case under consideration is a good illustration of the reason for the enactment of the law imposing a penalty in such cases. There is, in this case, a confessed violation of the contract made by the company to transmit the despatch, and yet, if an action should be brought against the company for the recovery of “special damages” given by the second section, how could they be estimated, and what would be their measure ? What damages shall be awarded to a relative or a friend for being deprived of the melancholy privilege of attending the funeral of his relative or friend ? Suppose the despatch had been an invitation to a marriage, to a .family reunion, or with reference to any other matter where special damages could not be shown, what substantial remedy
The position insisted upon by counsel for appellant would, require us to hold that in every case where the despatch is to be transmitted to a point out of the State, the party whose despatch is not sent or not delivered, the act constituting the default occurring out of the State, has no othér remedy than the very uncertain and unsatisfactory one of suing for special damages. We do not think the statute should be so construed, and are, therefore, of the opinion that there was no error in sustaining the demurrer to the answer.
The judgment is affirmed, with costs.
Rehearing
On Petition eor a Rehearing.
A petition for a rehearing is presented in this case, in which the ground of the application is stated as follows : “ Your petitioner respectfully asks a rehearing of said
above entitled cause, for the reason that said opinion is, as your petitioner believes, founded upon erroneous conclusions of law.”
According to the rule as laid down, in disposing of the petition for a rehearing, in Goodwin v. Goodwin, 48 Ind. 584, this petition is insufficient to present any question to the court. The petition is therefore overruled.