103 Ind. 227 | Ind. | 1885
George A. Scircle commenced two actions against the appellant to recover the statutory penalty affixed to a breach of duty.
On appellant’s motion the actions were consolidated, and in the consolidated action issue was joined. After the issue was joined the plaintiff died, and his widow, Martha J. Scirele, was substituted as plaintiff, and she recovered judgment for the statutory penalty.
One of the contested questions is the right of the appellee to maintain this action. The appellant insists that the cause of action died with the original plaintiff. We can not assent to this doctrine, for, in our judgment, the statute prevents the abatement of the action. It is provided that “A canse of action arising out of an injury to the person,” except in the cases designated, “ dies with the person of either party,” but it is also provided that “All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry.” If the cause of action in this case is not for an injury to the person, it must survive, for the statute, in broad and explicit
We agree with counsel, that a statute creating a penalty, and conferring upon an individual a right to sue for it, may be repealed at any time before final judgment. Norris v. Crocker, 13 How. 429. This argument, however, is not relevant to the point in dispute, for the question is not whether the Legislature may sweep away the penalty, but the question is whether the representative of the person entitled to
We do not doubt the soundness of the general rule that a statute giving a penalty does not execute itself, and can not summarily transfer a penalty to the person for whose benefit it is created, without a judicial investigation. But that rule does not govern here. The question is, not whether the statute may summarily put the penalty directly into the hands of the person for whose benefit it was created, but the question is, does the statute create a cause of action which may be enforced by due process of law? It is evident from what we have said that Willis v. Legris, 45 Ill. 289, has no applica-. tion here.
It is the law, as we have often held, that the sender of the message is the party who must sue. Western Union Tel. Co. v. Pendleton, 95 Ind. 12 (48 Am. R. 692); Western Union Tel. Co. v. Reed, 96 Ind. 195; Seward v. Beach, 29 Barb. 239; Thompson v. Howe, 46 Barb. 287. But he is the party who must sue because the cause of action is in him, and if there is a cause of action it is one that survives, for the reason that it is on a statute, and is not for an injury to the person. If the sender had a right of action, his death did not destroy it, although he was the proper party plaintiff while living, as the right of action is one that survives. Once it is conceded that he did have a cause of action, and that it was not for an injury to the person, there is no escape from the conclusion that it did survive. The argument of the appellant’s counsel, that the cause of action was in the sender, proves too much for their purpose, for it proves that there was a cause of action on a statute, and consequently that it survives to the representatives of the person to whom the statute gave the right of action.
The complaint is assailed upon the ground that it does not state facts sufficient to constitute a cause of action. One of the reasons assigned in support of this general assault is, that the complaint does not allege that the appellant has a line of
The second reason assigned is that the complaint does not aver that the appellant was engaged in telegraphing for the public for hire. The complaint does aver that the appellant was engaged in telegraphing for the public, and this is the averment which the statute requires, 'The statute does not require that it shall be averred that the company was telegraphing for the public for hire. Western Union Tel. Co. v. Walker, supra.
The remaining questions arise on the ruling denying a new trial, and we will dispose of them in the order in which they are presented in the argument of counsel.
It is contended that the finding of the trial court is wrong upon the evidence, for the reason thaf it appears that the claim was not presented within the time limited by the contract, and we are referred to the cases of Western Union Tel. Co. v. Jones, 95 Ind. 228 (48 Am. R. 713), Western Union Tel. Co. v. Pendleton, supra, Western Union Tel. Co. v. McKinney, 5 Texas L. Review, 173, Western Union Tel. Co. v. Pells, 2 Texas L. Review, 276, Young v. Western U. Tel. Co., 65 N. Y. 163, and Heimann v. Western U. Tel. Co., 57 Wis. 562.
We do not question the soundness'of'the general doctrine that a rule of a telegraph corporation making a reasonable regulation as to the time within which claims shall be presented is valid, but we do not believe that the rule can avail in an action to recover a statutory-penalty, unless the defence is specially pleaded. A defence founded upon a corporate rule limiting the time within which claims shall be presented is an affirmative defence, and not available under the general ■denial. Where an action is founded on a statute, all the facts
It is insisted that the evidence^ “shows that the company was not negligent.” The law of this branch of the case is this: Where the sender of the message proves that there was an unreasonable delay, the burden of explaining the delay devolves upon the telegraph company. Julian v. Western Union Tel. Co., 98 Ind. 327; Telegraph Co. v. Griswold, 37 Ohio St. 301 (41 Am. R. 500); Bartlett v. Western Union Tel. Co., 62 Maine, 209 (16 Am. R. 437); Rittenhouse v. Independent Line, 44 N. Y. 263; S. C., 4 Am. R. 673; Baldwin v. U. S. Tel. Co., 45 N. Y. 744; S. C., 6 Am. R. 165; Turner v. Hawkeye Tel. Co., 41 Iowa, 458; S. C., 20 Am. R. 605; So Belle v. Western Union Tel. Co., 55 Texas, 308 (40 Am. R. 805). This rule is in harmony with that which requires a common carrier of passengers to show that an injury to a passenger was not caused by its negligence. Terre Haute, etc., R. R. Co. v. Buck, 96 Ind. 346, authorities cited, p. 358 (48 Am. R. 168); Bedford, etc., R. R. Co. v. Rainbolt, 99 Ind. 551. The rule is, in itself, a reasonable one.
The sender of a message has no means of knowing the cause of the delay, for he is not acquainted with the business and operations of the telegraph company, and he can not give any explanation; on the other hand, the company has full means of knowledge and ample opportunity.for making an explanation where any exists. To require the sender of the message to explain the delay, or the failure to transmit, would put him at the mercy.of the telegraph company with
The message described in the first paragraph of the complaint was delivered to the operator at Scircleville to be transmitted to Frankfort, and was delivered to the operator at the former place at forty-minutes after eight o’clock on the morning of November 10th, 1883, but was not received by the person to whom it was addressed until forty-five minutes after eleven o’clock in the forenoon. The message described in the second paragraph of the complaint was delivered to the operator at Scircleville at fifty minutes after six o’clock on the morning of the twelfth of November, but was not received by the person to whom it was addressed until about fifteen minutes before one o’clock of that day. Frankfort is not far from Scircleville, and the agent of the appellant at the former place testified that “ It takes from five to fifteen minutes continuously to get a message from Scircleville to Frankfort.” Dr. Canfield, the person to whom the message was addressed, lived directly across the street from the appellant’s office at Frankfort., This evidence shows a delay that requires explanation. It is not such diligence as the statute requires, to consume several hours in transmitting-messages that only required from five, to fifteen minutes for their transmission.
The testimony of the appellant’s agent at Frankfort is relied upon as explaining the delay in transmitting the messages. That testimony is as follows:. “ I was manager and operator of the telegraph company at Frankfort when these two messages were sent, November 10th and 12th. I took the dispatches from the wires as soon as I could. I was pre■ívented from taking them sooner by a- .press of business at the ■ time. I was working for three hours, and would be busy at a certain time. There were eight or nine wires in the office at the time. I was busy on this wire at the time the dispatches were sent. Just as soon as I finished the work I was at when Scircleville called I took the dispatches, and they were
Judgment affirmed.