United States Telegraph Co. v. Western Union Telegraph Co. , 1865 N.Y. App. Div. LEXIS 210 ( 1865 )

Foster, J.

If the line of the plaintiff was a parallel and competing line with the one of the defendant over which the dispatch was required to be sent, the defendant violated no obligation, and the action cannot be maintained. The defendant insists that it had but one line of telegraph between Syracuse and Rochester, or between Albany and Buffalo ; and if this be so, then it must be conceded that the line of the plaintiff was parallel and competing with it.

Of the facts proved there is no dispute, and they are substantially stated in the findings; and the question upon them is, whether two lines of the same company, united at the two ends, and running, the one on nearly a straight line through numerous villages, a distance of seventy-eight miles, and the other running on a different and much more circuitous route, through numerous other villages, for the distance of 104 miles, are, within the meaning of the statute in question, one and the same line, even though the owner of them uses, when occasion requires it, the longer of the two to convey messages from and to points beyond its junctions with the other ?

The ordinary use of the northerly or shorter line of the defendant is to transmit through messages to and from points beyond Syracuse and Boehester, and to transmit way messages to and from the several points between those places, where offices are established; while the ordinary use of the Auburn line is to transmit messages to and from points on its own line, and, when occasion requires it, assist the other line in the transmission of messages to and from points heyond its own termini. It seems to me that in the contemplation of the statute in question, it is a distinct line, and that the section in question was intended to apply to just such a case. Suppose the line in question had run from Syracuse to Auburn, and to Ithaca and Owego, and thence by the way of the Genesee Valley to Boehester; would any one claim it to be a part of the northerly line of the defendant from Syracuse to Bochester, even though the company used it occasionally for the transmission of messages from and to points beyond those cities? And yet the additional distance over which the message in that case would have to pass on such line would be of no moment whatever. The line being once established, the messages over it would meet with no perceptible delay in the transmission, and no additional expense to the defendant. Upon the principle assumed by the defendant, if, instead of the line in question extending on to Rochester, it had ended at Auburn, it would be a part of the northerly line.

And the fourth resolution of the defendant, that “ The Western Union Telegraph Company will not forward messages taken by the United States Telegraph Company at any point where the Western Union Telegraph Company has an office, destined to any point to which the Western Union lines extend and the lines of the United States Telegrah Company do not,” shows that they claim that every part of all their lines constitute only one line, and that a competition with any part of any of them is a competition with every other portion of them.

This claim is in clear conflict with the section in question, which was aimed at the mischief to be produced by such refusal. The object of the statute was to compel companies with extensive lines to receive from other telegraph companies messages which such other companies could transmit no further, and to continue them on to the place of ultimate destination.

This statute, though penal to the offender, is generally beneficial, and should, therefore, be equitably construed. (Per Spencer, Ch. J., in delivering the opinion of the court in Sickles v. Sharp, 13 John. 498. Hammond v. Webb, 10 Mod. 282. Id. 117. Bacon's Abr., Stat. I, 9. Plowden, 36, 59.)

But it is claimed that the court below erred in finding that the plaintiff had no parallel or competing line with the defendant’s line between Syracuse and Auburn. The proof certainly is clear that the plaintiff had no telegraph line from Syracuse to Auburn in any direction, and no line from Syracuse towards Auburn; and that the only line of telegraph from Syracuse to Auburn was the line of the defendant. And of course this claim of the defendant is made upon thp alleged pop elusion of law, that inasmuch, as the line of the plaintiff competed with that of the defendant east of Syracuse and west of Rochester, and also with the northerly line of the defendant between those places, it necessarily was in competition with the line between Syracuse and Auburn.

The statute in question speaks of lines of the same company, and treats the lines of the same company extending in different directions as separate lines; as, for instance, by section 5 of the same act, page 720, “ such association is authorized to construct lines of telegraph along and upon any of the public roads and highways, &c., of this State,” &e.

It is a familiar rule that the several parts of a statute are to be considered in the construction of it. From the language of the two sections, I think it is apparent that the legislature intended that section 11 should apply to the case of a telegraph company having lines running in more than one direction, and to consider them as separate lines. But the phraseology of section 11 is too clear and precise to admit of any doubt as to the intention of the legislature. To absolve the defendant from the penalty, the refused message must have come from “ a company or association owning a line of telegraph parallel with, or doing business in competition with the line over which the, dispatch is required to be sent.” Where was the dispatch required to be sent ? Certainly from Syracuse to Auburn, and nowhere else. And there was no parallel line and no competition there.

I am therefore of the opinion that the defendant was bound to receive and transmit the message to Auburn.

The next question is, could the plaintiff maintain this action, or should it have been prosecuted by the signer pf the message ?

The section under consideration when speaking of natural persons alone, calls them “individuals,” and when speaking of corporations alone, styles them “ companies” or “ associationsand when alluding to the parties who may maintain the suit, uses the words “person or persons.” I have no doubt that the word person or persons, when used in a statute, includes corporations. (The People v. May, 27 Barb. 238. The State of Indiana v. Woram, 6 Hill, 33, 38. The People v. The Utica Ins. Co., 15 John. 381, 382, and cases there cited.) And the action can be maintained by the party who desires' to send the dispatch, and whose desire is not complied with. And if it be a telegraph company that desires another telegraph company to receive and forward such message, that the company so desiring the telegram to be sent is the proper person to sue for the penalty, in cases of refusal. (Thurn v. Alta Telegraph Company, 15 Cal. R. 472. American Law Reg. vol. 4, p. 210.)

But the blank upon which the copy of the telegram sent to the defendant’s office was written, contained a heading in print, of the terms and conditions on which the plaintiff received telegrams to be transmitted; one clause of which was as follows*: “ If or shall this company be held liable for any error or neglect by any other company, over whose lines this message may be sent, to reach its destination; and this company is hereby made the agent of the signer of this message to forward it over the lines of other companies when necessary.” And the defendant claims that being such agent, the plaintiff cannot maintain the action, even if without such agency it had a right to do so.

It may be a question of some doubt, but I have come to the conclusion that notwithstanding the clause in question, the plaintiff is the proper party to sue for the penalty. The clause referred to was doubtless intended to shield the plaintiff from pecuniary responsibility for the misconduct or neglect of other parties, or companies, and had relation only to its personal- liability over to the writers of the messages which should be received by it for transmission, and to that alone; with all which the defendant had nothing to do. Its duty was to forward the message, and for the refusal to do so it was subject to the penalty, and notwithstanding the clause in question, I think the plaintiff was the proper party to bring the action. The plaintiff desired the defendant to forward the message, and tendered the price for so doing. It was the desire of the plaintiff, which was disregarded, and, in my opinion, the judgment was right, and should be affirmed.

[Onondaga General Term, June 27, 1865.

Morgan, J. concurred.

Mullin, J., concurred; except that he held that the plaintiff was not the proper party to bring the action.

Bacon, J., did not sit.

Judgment affirmed.

Mullin, Morgan and Foster, Justices.]