Thurn v. Alta Telegraph Co.

Baldwin, J. delivered the opinion of the Court Cope, J. concurring.

This action is brought to recover a penalty of five hundred dollars, given by statute for the failure to convey a telegraphic message. Section 154, p. 302, C. L. of the Act in relation to Telegraph Companies, is the provision under which the action is brought.

The section is in these words: “ It shall be the duty of the owner, or the association owning any telegraph line, doing business within this State, to receive dispatches from and for other telegraph lines and associations, and from and for any individual; and on payment of their usual charges for individuals for transmitting dispatches, as established by the rules and regulations of such telegraph lines, to transmit the same with impartiality and good faith; and shall not disclose any communication transmitted on said line or lines, directed to a third person, in the penalty of five hundred dollars for every neglect or refusal so to do, or confidential disclosure; to be recovered, with costs of suit, in the name and for the benefit of the person or persons sending or desiring to send such dispatches.”

¡ This awkwardly drawn section is to be construed as giving this right of action for a failure by a telegraph company to transmit the message upon a compliance with the required conditions by the person contracting with it.

The sum to be recovered is a penalty for this breach of duty, and the act, in this section, is a penal law, and is to be strictly construed. (See Russell v. Irby, 13 Ala. 131, and the cases there cited; Batchelder v. Kelly, 10 N. H. 436.)

[475]The first of these cases holds that an action of debt may be brought by the proper party, for the penalty, and the rule is so held in other cases; but under our system there can be no objection to the mode adopted here, of asserting the statutory right.

The objection is made that the plaintiff had no authority to bring this suit. The provision of the section is, that the penalty is to be “ recovered, with costs of suit, in the name and for the benefit of the person or persons sending or desiring to send such dispatch.” It is evident that the person intended here is the party who contracts or offers to contract for the transmission of the dispatch. He may, probably, do this by his agent or servant; but when the contract is made by a party as agent of another, in order to give a right of suit to the principal, the fact of agency must be shown. The proof in this case, so far as this point is concerned, is as follows: One Gamble, a witness for plaintiff, testified: “I am Superintendent of the California State Telegraph Company, and an operator in their office in San Francisco. On the second day of July, plaintiff came into our office and delivered a message to be transmitted to Jackson, and paid for transmitting there. It reads as follows : “ Alta Express Co., Jackson : If you have package for me, forward immediately.” In the margin are the words “F. July 2d.” Signed “ C. Thurn.” There were but few words passed when the message was delivered ; there was no express agreement that the California State Telegraph Company should forward the message to Sacramento, and employ the Alta California Telegraph Company to transmit it from there to Jackson. He must, however, have known that we could not have sent it to Jackson, as we had no line there. I think there was something said about sending it by the defendant’s line from Sacramento.”