Dudley v. Western Union Telegraph Co.

Smith, J. — This was a suit brought by the plaintiff against the defendant a telegraph corporation doing business in this state, for a statutory penalty for a failure to transmit a message promptly with impartiality and good faith and to deliver the same to the addressee. It is conceded that the message was transmitted promptly and with impartiality and good faith. It is likewise conceded that the defendant was guilty of negligence in failing do deliver the message to the addressee. The statute, Revised Statutes, section 2725, imposes a penalty of $200 upon a telegraph company for refusing, on payment or tender of the usual charges for transmitting dispatches as established by the rules [394] and regulations of such telegraph company, “to transmit the same promptly and with impartiality and in good faith.” The decisive question which we have here to decide is whether this 'language of the statute imposes the penalty therein denounced for a failure by the telegraph company to deliver a message after it has transmitted the same promptly and with impartiality and good faith over its wires to the point on its line to which it is addressed? It is incontrovertably true that where a telegraph company undertakes to deliver under reasonable rules and regulations a message transmitted over, its wires and neglects to do so that it is liable in damages to those injured by such neglect. But has the statute provided a penalty for the refusal to perform this duty as it has for the refusal to perform the duty of transmitting a message promptly and with impartiality and good faith? The language of the statute is not to transmit the message promptly and with impartially and good faith, and to deliver the same. Its terms clearly limit the penalty to the refusal to transmit the message promptly with impartially and good faith over the wires to the point on the line where it is addressed. It is a penal statute and as such it is not to be regarded as including anything which is not clearly and intelligently described in its very words as well as manifestly intended by the legislature, or which is the same thing stated in another way “no case shall be held to fall within it which does not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment.” Endlich on Interpretation of Statutes, ch. 12. And where there is a doubt the statute ought not to be construed to inflict a penalty which the legislature may not have intended. When these rules are applied to this ease we find it quite difficult to escape the conclusion that the plaintiff’s judgment [395] cannot be sustained for the language of the statute does not plainly imply the intention to impose a penalty for the refusal to deliver a message. But the plaintiff contends that the St. Louis court of appeals has ruled that the statutory term “transmit77 was intended not only to embrace the transmission of messages over the wires but it necessarily includes the prompt delivery of them as well. Biernett v. Tel. Co., 39 Mo. App. 599; Brashears v. Tel. Co., 45 Mo. App. 453. The ruling of these cases on this point we cannot accept as the undoubted law. According to our understanding, while they do not purport to do so, they do in fact ignore the well recognized distinction which is always to be observed between remedial and penal statutes and the rules of construction severally applicable to them. If the statute in question were of the former instead of the latter class the reasoning and conclusion of the learned court would we think be above all criticism. But to say in a statute like this that the term “deliver" can be imported into it and annexed to the term “transmit" by implication would be to do violence to the very rule of construction quoted with approval by the court in the course of its opinion in the former of these cases. It seems to us that this amounts to no less than by construction to create a duty and a penalty for its non-performance which is not within the authority of any court. The statute of Arkansas imposes a penalty upon a telegraph company for refusing to “transmit" over its wires to localities on its line any message tendered it for transmission. The supreme court of that state in the recent case of Brooks v. Tel. Co., 19 S. W. Rep. 572, in construing, that statute declared that the language is not “to transmit and deliver" the message. The terms of the statute say the court “confine the penalty to transmit over the wires to the locality on the [396] line to which the message is addressed” and that it cannot be said that the language plainly implies the intention to visit a penalty for a refusal to deliver: And in the same connection it is further stated that “where the message is transmitted and the company refuses to deliver it, the person injured is remitted to his common law remedy.” In Georgia one section of the statute requires telegraph companies to transmit messages while another requires them to deliver all messages addressed to persons residing within one mile of the office. The supreme court of that state in the case of Horn v. Tel. Co., 88 Ga. 538, in speaking of the duty to deliver said, “It is obvious that the reason here given cannot apply to the transmission of a dispatch from one office to another where it can be called for. This is a duty altogether different from that of delivery.” The supreme court of this state in Connell v. Tel. Co., 18 S. W. Rep. 833, which was an action based on the statute, section 2725, to recover a penalty for the failure to deliver a message, declared that “the failure to deliver the message at that point to the person to whom it was directed may have been an act of negligence for which defendant might be made to respond in damages, but it is not the failure of duty for which the statute imposes the penalty sued for.” In discussing the effect of the statute as to interstate telegrams it is further declared that the “state in this enactment * * * simply attempts so far as its own citizens are ' concerned to secure their prompt transmission.” We are unwilling to yield our assent to the plaintiff’s contention that since the message in that case was addressed to a person at a point outside of this state that the ruling made is wholly inapplicable to the case in hand, where the message was addressed to a person at a point in this state. We understand the [397] supreme court’s exposition of this statute in effect to be that for the neglect to deliver a message to the addressee whether at a point within or without this state it has imposed no penalty as it has for the neglect to perform the duty of transmission. The duty to transmit a message promptly with impartiality and good faith is one thing and that of delivery is another. The statute imposes a penalty for the failure to perform the former, but for a failure to perform the latter it does not. It therefore follows that the' recovery was improper and that the judgment should be reversed, which is accordingly ordered. Ellison and GStll, JJ., concur in separate opinion.