Wilkins v. Western Union Telegraph Co. ( 1890 )

Campbell, J.,

delivered the opinion of the court.

The demurrer to the replication to the plea of res judicata should have been overruled for two reasons : 1. Because the act entitled, “ An act to require telegraph companies to deliver messages loithin a, reasonable time,” approved March 18, 1886, acts p. 91, does not' apply in case of erroneous transmission of messages, but only where there is neglect or failure to transmit and deliver. The penalty is denounced against dereliction of duty by neglect, refusal, or failure as to time. Its purpose was to insure promptness and not accuracy in tbe transmission and delivery of messages. Therefore, a recovery by Wilkins to which he was not entitled did not bar this action.

2. The twenty-five dollars provided by the act cited is not a part of an entire demand, but is a separate and distinct thing, for which one entitled may sue and recover, without suing for anything else, and such recovery is not a bar to another action for a distinct thing. The manifest purpose of the act was to incite to promptitude by telegraph companies by subjecting to liability to a recovery of $25 as a penalty for every failure of duty in the particulars mentioned by it, whatever else the company derelict in this might be liable for.

Judgment reversed and case remanded.