38 Ind. App. 578 | Ind. Ct. App. | 1906
Action by appellee to recover from appellant the statutory penalty for failure to transmit a telegraph message delivered to it.
The complaint, which is in a single paragraph, was held good as against a demurrer. Answer in denial, trial by jury, verdict and judgment in favor of appellee for $100. Two questions are presented and discussed: (1) The com-
plaint is insufficient; (2) the motion for a new trial was improperly overruled.
The complaint avers that appellee was a funeral director, and had been engaged to meet, in Indianapolis, a party, from Asheville, North Carolina, take charge of a corpse, accompany it by train to Danville, Indiana, where appellee resided, and had his place of business, and convey the corpse to the home of the father of the deceased. It is averred that appellant owned and operated a telegraph line between Indianapolis and Danville, and was engaged, for hire, in receiving and transmitting by wire telegraph messages; that at both of said places appellant maintained public offices and places of business, for receiving and transmitting messages; that appellee had been requested and engaged to accompany said corpse from Indianapolis to Danville on what was known as train No. 43, on the “Big Eour railroad,” which was scheduled to arrive at the latter place shortly after midnight; that he had arranged to have all necessary conveyances at the station on the arrival of the train to convey the funeral party to the residence of the deceased’s father; that just before the time for said train to leave for Danville he was notified that, on account of “washouts” on said railroad, trains could not run on it, and that it would be necessary to transfer said funeral party to the Vandalia train to be taken to Clayton, which
“Union Station, Indianapolis, Indiana.
3-20-1904.
To McClelland’s Bus Man,
Danville, Indiana.
Send wagons to Clayton for corpse. ISio. 43 goes over the Van. Charles E. McClelland.”
It is further averred that appellee then and there notified appellant’s agent that the bus man to whom the message was addressed, and other persons, were then waiting at appellant’s office and place of business at Danville, for orders and instructions as to what place they should meet appellee and said funeral party; that he then and there paid appellant’s agent thirty-five cents, whereupon appellant undertook and agreed promptly to “transmit and deliver said message;” that appellee and said funeral party arrived at Clayton about 1 o’clock a. m. of said day; that they were compelled to wait and remain on the streets and platform, exposed to the inclement winter weather, for three hours, on account of the nonarrival of appellee’s bus man with the necessary conveyances, etc. The complaint concludes with the following averment: “And plaintiff says that notwithstanding the aforesaid contract and agreement promptly to transmit and deliver the above message, and notwithstanding it was also its legal duty promptly and without delay to deliver said message, on account of its being an emergency message, as disclosed upon its face, said defendant, acting with bad faith, negligence, partiality and discrimination against this plaintiff failed and neglected to transmit and deliver said message in the order of time in which the same was received, and wilfully and purposely postponed the transmission and delivery of said message,
The action is based upon §§5511, 5512 Burns 1901, Acts 1885, p. 151, §§1, 3. The former section provides: “That every telegraph company with a line of wires wholly or partly in this State, and engaged in doing a general telegraphic business, shall, during the usual office hours, receive dispatches, whether from * * * or individuals, and shall, upon the usual terms, transmit the same with impartiality and in good faith, and in the order of time they are received, and shall in no • manner discriminate in rates charged, or words or figures charged for, or manner or difference of service between any of its patrons, but shall serve. individuals,' corporations and other telegraphic companies with impartiality.” The latter section prescribes a penalty for violating the former.
Two objections are urged to the complaint: (1) It is insufficient because it failed to allege an omission to transmit the dispatch in the order of time in which it was received with reference to the receipt ,and transmission of other dispatches handled by appellant at the same office; (2) the complaint proceeds upon inconsistent theories, because it pleads a “wilful wrongdoing and negligence in the same paragraph.”
In Western Union Tel. Co. v. Ferguson (1901), 157 Ind. 37, it was held that a breach of statutory duty results from the failure, whether intentional or otherwise, to transmit messages in the order of time in which they are received.
In Western Union Tel. Co. v. Braxtan (1905), 165 Ind. 165, it was held: “The suggestion that ‘discrimination’ and ‘partiality,’ as used in the statute, imply wilfulness and
The point of contention on the part of appellant is that the evidence shows that the dispatch was delivered with reasonable promptness, and that the evidence fails to show that it was not delivered in the order of time in which it was received. The evidence shows that the message was delivered to appellant’s agent and. operator at the Union Station at Indianapolis a few minutes before midnight; that appellee explained to him its urgency, and told him his “bus man” would be at the station at Danville to receive it. The bus man was at the station at Danville at 12 o’clock, and waited there until about 2 o’clock, when the message was delivered to him. It took an hour to drive to Clayton. The operator at the Union Station had to send the message to the main office in Indianapolis, from whence it had to be transmitted to Danville. It was stipulated by the parties, as a part of the evidence, that the message sent from Indianapolis to Danville arrived at its destination
Judgment affirmed.