Western Union Telegraph Co. v. Clarke ( 1893 )

Campbell, C. J.,

delivered the opinion of the court.

Section 4326 of the code of 1892, in embracing the requirement to “transmit correctly,” as well as deliver messages in a reasonable time, did not intend to impose a penalty for a ■departure from the exact terms of the message, where no harm was done and the message was transmitted with such substantial accuracy as to perform its office and effect its purpose. If the message transmitted and delivered must be a reproduction verbatim et literatim et punctuatim of that written to be sent or the penalty denounced by the section may be recovered, the statute is needlessly severe. No interest requires such nicety, and it may be justly assumed that the legislature had in view not only “ reasonable time” for delivery, but reasonable conformity to the terms of the message, so as to present it to the sendee in such terms as to effect the purpose for which it is sent. Where harm results, damage accrues, and the statutory penalty is given; but where, as in this case, no harm was done, an inadvertent departure from the letter of the message does not incur the penalty. The legislature must have meant to require to transmit correctly in substance, not mere form'. It had regard to the thought, and not the mere symbols of the message. Otherwise, any departure would subject to the penalty, which would be unreasonable. Can it be supposed that for changing my signature or address from Campbell to Camel or Campel or Cam-belle or Cawmel, according to the form of writing it sometimes met with, in a message sent by me or to me, and promptly delivered and accomplishing its purpose and doing-no harm, the penalty would be incurred ? To so hold would impute to the legislature a spirit of injustice and cruelty that would seriously reflect on its attempt to legislate in this matter for the public interest. To limit the operation of the section as we clo, is to secure all by it 'that will subserve the interest of the public, which is the object of the law.

The plaintiff was not entitled to recover the penalties or the cost of the messages, which were transmitted and accomplished their purpose.

Reversed, and remanded for a new trial.