23 Ind. App. 14 | Ind. Ct. App. | 1899
The complaint of the appellee, Flora Henley, against the appellant, contained two paragraphs. In the first it was sought to recover the statutory penalty of $100 for failure to transmit a certain telegraphic message with impartiality and in good faith and in the order of time in which it was received. In the second paragraph the appellee demanded special damages for like failure. A demurrer to each paragraph for want of sufficient facts was overruled.
It is suggested by the appellee that it appears from the record that the verdict in favor of the appellee was based upon the second paragraph ’ alone, and that therefore the question as to the sufficiency of the first paragraph of the complaint is immaterial. In the second paragraph as orig
We think it sufficiently appears from the whole record that the recovery was upon the second paragraph alone, and therefore we agree with counsel that there could be no reversible error in the overruling of the demurrer to the first paragraph.
In the second paragraph of complaint it was shown that the message was delivered to the appellant’s agent at Green-castle Junction, and the contract was made with him for its transmission, on Sunday, the 1st day of September, 1895, and it was sought in the pleading to show that the transmission of tjie dispatch on that day was a work of necessity. The message set forth in the pleading was as follows: “Green-castle Junction, Ind., Sept. 1st, 1895. To Violet Chollar, 1606 Vermont Ave., N. W., Washington, D. C. Arrive Baltimore and Potomac, Monday, 1:30' p. m. Plora.” It was alleged, “that it was necessary that said dispatch should be transmitted on said 1st day of September, 1895, in order to relieve suffering, avert harm, and prevent serious loss of health and life, and that 'defendant’s agent at said Green-castle Junction then and there had knowledge of such necessity.”
The appellee in her complaint based upon the contract,
In such case it is essential for the avoidance of the statutory inhibition of such a contract made on Sunday, that there existed a reasonable necessity for sending the message on that day and that the telegraph company had notice of that necessity. This reasonable necessity and, also the notice thereof to the company may in many cases be sufficiently shown by the contents of the dispatch itself; and if the language of the message be not sufficient for such purposes, the necessity and the notice to the company may be shown by the averment of extrinsic facts. Western Union Tel. Co. v. Yopst, supra. In that case the court quoted approvingly from Flagg v. Inhabitants, etc., 4 Cush. 243, the following language: “By the word 'necessity’ in the exception we are not to understand a physical and absolute necessity; but a moral fitness or propriety in the work and labor done, under the circumstances of any particular case, may well be deemed necessity within the statute.”
While it is sufficient to constitute the reasonable necessity which will bring the case within the exception expressed in the statute if there be a moral need or propriety under the circumstances of the-particular case, yet the fact that it will be conducive to pecuniary profit or business success, or will subserve the convenience of the sender, is not sufficient to constitute such reasonable necessity, and a dispatch whose contents would sufficiently notify the company, on a day
A Sunday message as follows: “IVIeet the E. T. train at 3 o’clock,” did not show on its face that its subject-matter concerned anything in the nature of charity or necessity. Willingham v. Western Union Tel. Co., 91 Ga. 449, 18 S. E. 248.
A message, the object of which was to apprise the sender’s mother that a certain friend of the family would be with her to take dinner in company with the sender, was held' to be wholly wanting in any character of necessity or charity, and the court expressed the opinion that neither of these characters is to be assumed by mere presumption and without any proof whatever. Western Union Tel. Co. v. Hutcheson, 91 Ga. 252, 18 S. E. 297.
In Western Union Tel. Co. v. Yopst, 118 Ind. 248, it was held that a message reading, “Bring forty dollars if you want record,” did not show a reasonable necessity for sending the dispatch on Sunday.
In Rogers v. Western Union Tel. Co., 78 Ind. 169, 41 Am. Rep. 558, the message for the transmission of which the contract was made on Sunday, was, “Come up in morning;, bring all.” It was said by the court that upon their face these words implied a friendly invitation to visit the sender, and that such a message could not be regarded as a “work of necessity” within the meaning of our statute.
It is the office of a pleading under the code procedure to state- issuable facts, to show what was done or what was not
In Western Union Tel. Co. v. Yopst, 118 Ind. 248, it was said that to avoid the defense which the statute forbidding the making of contracts on Sunday creates, it was incumbent upon the plaintiff after having alleged that the contract was made on Sunday, “to plead facts showing that there was a reasonable necessity for making the contract on that day, and that the defendant knew of this necessity.”
There can not be a breach of legal duty in failure to perform a contract to do a thing prohibited by law, and punishable as a crime. The making of the contract on Sunday was illegal, and the service contracted for would be illegal. The appellee could not base a legal right upon such a contract, and for the failure of the appellant to perform it no damages, not even nominal damages, could be recovered. She was not entitled under her complaint to recover the price paid for the transmission of the dispatch. Perkins v. Jones, 26 Ind. 499.
The appellee could not recover any damages because of' the disappointment, anxiety, or chagrin of any member of her family arising from failure to receive the announcement of her coming through the dispatch sent by her husband, or because of her disappointment or grief at not seeing her mother before her death, which occurred before appellee’s arrival in the city. The failure of the appellant to transmit the dispatch could not be regarded as the proximate cause of her grief and prostration occasioned by the information of her mother’s death. It appears from the special findings of the jury that all the damages awarded by them were given for injury sustained “by reason of no one meeting her at the train when she arrived.”
The only injury shown by which to measure damages, other than nominal, was mental distress and consequent nervous' prostration; and counsel have ably discussed the subject of mental anguish as an element of actual damages; but we do not find it necessary to respond in this case by the expression of an opinion on that subject. The case was tried
In the often mentioned case of Hadley v. Baxendale, 9 Exch. 341, (S. C. 26 Ency. L. & Eq. 398), the rule was expressed as follows: “Where two parties have made a contract which one of them has broken, the damages which the the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus kpown to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances from such a breach of contract.” See Can
The general rule for the ascertainment of the damages to the plaintiff in an action for delay in transmitting his telegraphic dispatch was stated in Gulf, etc., R. Co. v. Loonie, 82 Tex. 323, 18 S. W. 221, as follows: “They are such as naturally arise from the breach, of the contract, or such as may reasonably be supposed to have been in contemplation of both parties at the time they made the contract as to the probable result of the breach of it.” See, also, Western Union Tel. Co. v. Short, 53. Ark. 434, 14 S. W. 649.
In Primrose v. Western Union Tel. Co., 154 U. S. 1, 14 Sup. Ct. 1098, it is said, that under any contract to transmit a message by telegraph, as under any other contract, the damages for a breach must be limited to those which may be fairly considered as arising according to the usual course of things from the breach of the very contract in question, or which both parties must reasonably have understood and contemplated, when making the contract, as likely to result from its breach. See, also, Western Union Tel. Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577.
In Western Union Tel. Co. v. Bryant, 17 Ind. App. 70, it was said, that a message which read, “Cannot come to-day; will come to-morrow,” sent by ISTancy Bryant to John Bryant, did not apprise the Telegraph Company that a failure to send it would be likely to cause mental distress, or suggest that humiliation or mental distress would reasonably result from the failure of the person to whom it was addressed to be present upon the arrival of the sender at the place of destination.
The contract itself was what was agreed to by the parties and was expressed in the written dispatch. It imported notice of the arrival of the signer of the message at Washington at a specified time. Adding to its contents all that
Judgment reversed, and cause remanded with instruction to sustain the demurrer to, the second paragraph of complaint.
Henley, J., absent.