43 Ind. App. 7 | Ind. Ct. App. | 1908
Action by the appellee against the appellant to recover the penalty for the nondelivery of a telegram, prescribed by the act of April 8, 1885 (Acts 1885, p. 151, §§5780, 5781, 5802 Burns 1908), entitled: “An act prescribing certain duties of telegraph and telephone companies, prohibiting discrimination between patrons, providing penalties therefor and declaring an emergency.”
It is alleged in the complaint that on July 23, 1905, plaintiff delivered to the defendant at its said office at the town of Orleans, during its regular office hours, to be transmitted and delivered to "William H. Troth, in care of Mugg Telephone Company at the town of Spencer, the following telegraphic dispatch, to wit:
“7, 23, 1905.
To William H. Troth, c/o Mugg Telephone, Spencer, Indiana.
Eula dead. Funeral ten Tuesday. Meet us Spencer nine train.
H. B. Troth.”
That the plaintiff wrote said message and signed the same “H. B. Troth,” as appears by the copy of said message; that, he then and there complied with all the rules of said defendant company required to transmit said dispatch, and then and there paid to said defendant company its regular rates and charges for transmitting and delivering said dispatch, to wit, the sum of twenty-five cents. Plaintiff avers that at the time said dispatch was so received by said defendant and at the time plaintiff so paid said defendant company for transmitting said dispatch as aforesaid, and for six months prior to said time, the Mugg Telephone Company had its office in said town of Spencer and within one mile of defendant’s said office in said city, and that said telephone company during said time and at said place had its office
Upon proper request the court made a special finding of facts, among which are the following: (1) On July 23, 1905, the plaintiff filed in the office of the defendant, at Orleans, Indiana, for transmission by the defendant, by telegraph, to William IT. Troth, in care of the Mugg Telephone Company, at Spencer, Indiana, a certain message, as follows: (Being the same message heretofore set out in the complaint.) Said message was written by the plaintiff upon a printed blank furnished by defendant’s manager and operator at Orleans, Indiana, and the printed portion of said blank was as_ follows:
“The Western Union Telegraph Company. * * * Send the following message, subject to the terms on the back hereof, which are hereby agreed to. * # * The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission. ’ ’
(2) On July 23, 1905, and for a long time prior thereto, and continuously thereafter up to and at the time of the trial of tins cause, the defendant was a corporation acting
As conclusions of law the court stated that, by failing to transmit and deliver said message, the defendant violated its duty to the plaintiff and incurred the statutory penalty of $100, and that the plaintiff is entitled to recover from the defendant the statutory penalty of $100, together with his costs in this action.
To the conclusions of law the defendant excepted, and judgment was rendered in favor of the appellee for $100 and costs.
The defendant moved for a venire de novo, on the grounds that the special findings, upon material and essential issues, stated conclusions instead of facts; that special finding four was a conclusion instead of a fact, and that the special findings were not sufficient to sustain the judgment for the plaintiff. The motion was overruled, as was also defendant’s motion for a new trial.
The errors assigned are the overruling of appellant’s demurrer to the complaint, the overruling of appellant’s motions for a venire de novo and for a new trial.
In Western Union Tel. Co. v. Mossler (1884), 95 Ind. 29, it is said: “To authorize a recovery in a ease like the present, the complaint must aver, and the evidence must show, in addition to other necessary facts, that the plaintiff paid or tendered the company’s charges for transmitting the message, at the time of sending it.”
In the case of Western Union Tel. Co. v. Pendleton (1884), 95 Ind. 12, 18, 48 Am. Rep. 692, the court said: ‘ ‘ The action given by the statute is for a penalty, and the right to maintain it is in the sender of the message, who pays or tenders the compensation provided by the rules and regulations of the company.”
In the case of Hadley v. Western Union Tel. Co. (1888), 115 Ind. 191, 199, the court said: “It is only those who give business to, and send dispatches over the wires of, a telegraph company that can rightly be called its patrons, within the meaning of the statute.”
In Western Union Tel. Co. v. Ferguson (1901), 157 Ind. 37, the term “aggrieved party” is defined as the person whose message the telegraph company has refused to receive or failed to transmit on the terms or in the manner prescribed by the statute.
In the case of Western Union Tel. Co. v. Jones (1884), 95 Ind. 228, 232, 48 Am. Rep. 713, the following language is
In Western Union Tel. Co. v. Kinney, supra, the action was by appellee, who directed his clerk to forward messages sent to him during his absence. Appellee was held not to be the sender of the message which the clerk had received and forwarded, and he could not therefore recover.
In Western Union Tel. Co. v. Brown, supra, suit was brought by Alonzo F. Brown to recover for the nondelivery of a telegram signed “L. F. Brown.” The court said: “It is found that he delivered the dispatch to the company, and paid for the transmission, but that is not a finding that the dispatch was from him to T. D. Brown. He may have delivered the dispatch to the company, and paid for its transmission with his own money, and yet not be the sender of
Judgment affirmed.