98 Ind. 566 | Ind. | 1884
Complaint by Francis M. Trissal against the Western Union Telegraph Company, alleged to be a corporation organized and existing under the laws of this State,
The message; which was sent from Noblesville, in this State, was as follows:
“November 7th, 1883.
“ Gharles L. Jewett, New Albany, Indiana:
■ “ Parties here to settle, and want to know whether deed will be sent as requested in my letter. E. M. Trissal.”
Issues being joined, and the cause having been submitted to the court for trial, the defendant requested “ the court to make a special finding of facts and conclusions of law.”
After hearing the evidence, the court made a special finding of the facts as requested. The finding of the court was that, on the 7th day of November, 1883, the plaintiff delivered to the defendant’s agent at Noblesville the message herein above set out, at about ten o’clock and fifteen minutes a. M., and paid the agent the sum of forty-one cents for its transmission, which was the usual charge for such a message; that the defendant, impartially and in good faith, and in the order of time in which it was received, transmitted the message to its office at Indianapolis, which was a relay station, from which it had to be forwarded to New Albany; that it was received at Indianapolis at about ten o clock and forty-six minutes A. M. of the same day; that the defendant thereupon in like manner, impartially and in-good faith, and in the order of time in which it was received at Indianapolis, transmitted said message to its office at New Albany, where it was received at eleven o’clock and fifteen minutes A. M., also of the same day j that the defendant’s telegraphic operator at New Albany took the message off the wires and made a copy to be retained, as was done, in the office; that within from three to ten minutes after the message was so taken off the wires, another copy was given to a competent messenger
Upon these facts the court came to the conclusion that the law was with the plaintiff, and that hence he was entitled to recover from the defendants the statutory penalty of $100, and rendered judgment accordingly. Immediately following this judgment, and as a part of the same record entry, these words were added: “ To all of -which finding of facts, and conclusions of law thereon, the defendant objects and excepts at the time.”
The appellee objects: First. That there was no special finding of facts made in this case within the meaning of the statute authorizing such a proceeding; Secondly. That the- -
In practice, however, such a statement has never been treated as a necessary part of a request for a special finding of the facts in a cause, and, in the recent case of Trentman v. Eldridge, ante, p. 525, it has been held not to be a necessary part of such a request. We construe the section cited to mean that upon a trial by the court either party may require a statement of its finding of the facts, for the purpose of enabling him to except to the decision of the court upon the questions of law involved at the trial, provided that such decision shall be adverse to him, and that he shall desire, at the proper time, to reserve an exception to the decision. When, therefore, a party requests the court to state its finding of the facts, and its conclusions of law upon the facts as found, the purpose of the request is impliedly, and hence sufficiently, disclosed. The intimation that a contrary construction might, with propriety, be placed upon section 551 of the code, contained in the case of Moore v. Barnett, 17 Ind. 349, has met with no response in any case since decided in this court.
It has been held by us that a single exception reserved to two or more rulings of a nisiprius court, in gross, presents no question upon an appeal to this court. Johnson v. McCulloch, 89 Ind. 270. But the exception noted in this case, so far as
As a recurrence to the statement of facts made by the court will make apparent, there was no formal finding that the appellant was engaged in the business of telegraphing for the public as was alleged in the complaint. The establishment of the fact that the appellant was so engaged was a necessary prerequisite to the appellee’s right to recover the statutory penalty demanded by him. Western U. Tel. Co. v. Ferguson, 57 Ind. 495; Western U. Tel. Co. v. Axtell, 69 Ind. 199 ; Western U. Tel. Co. v. Adams, 87 Ind. 598 (44 Am. R. 776).
The appellee, however, claims that the fair inference from the facts distinctly found is that the appellant was, at the time named in the complaint, engaged in telegraphing for the public, and that hence it ought to be held that the fact that the appellant was so engaged was inferentially found by the court.
This being an action for the enforcement of a statutory penalty arbitrarily imposed, we would not feel justified in making so liberal an inference from the facts stated in the finding in aid of the appellee’s right to recover. We are, on the contrary, unable to hold that such an inference could be
The only wrong imputed to the appellant in argument was-the delay which attended the message in reaching the hands of Jewett, and that was unquestionably caused by Jewett’s absence from the city when the message was received at New Albany. When the messenger boy found Jewett’s law office locked, and no one there to receive the message, it was his plain duty to take it, as he did, to the hotel at which Jewett resided, and, failing to find Jewett at the hotel, the boy was justified in leaving the message with the clerk in charge of the-hotel office. The act of taking a room and lodging in the hotel by Jewett impliedly constituted the clerk, or other person charged with the general management of the hotel, his servant and agent for the reception and preservation of such things of value as would ordinarily come to him to the hotel as his place of residence. This resulted from the exigencies which have called, and still continue to call, hotels into existence, as well as from the nature of the duties which the special finding shows the clerk was in the habit of performing, presumably with the knowledge of Jewett. It was, therefore, not necessary, under all the circumstances attending the transaction, that the clerk should have been expressly authorized by Jewett to take the telegram from the messenger boy.. The clerk’s implied authority to so take the telegram seems not to have been controverted by Jewett, and that strengthens the inference that the clerk possessed the requisite implied authority as the servant and agent of Jewett. The clerk was, in our estimation, as much authorized, in the absence of Jewett, to receive and take charge of the telegram as if he had been the servant and agent of Jewett in charge of his private residence.
The judgment is reversed, with costs, and the cause is remanded with instructions to the court below to state its con