Kirby v. Western Union Telegraph Co. , 6 S.D. 1 ( 1894 )

Fuller, J.

The complaint in this action states, in substance, that the defendant is a, public carrier of telegraphic messages for hire; that plaintiff, on a day mentioned in the complaint, delivered to defendant three certain telegrams for transmission, which were received by defendant, who agreed to transmit them for a reasonable consideration, to be collected from the respective persons to whom such telegrams were addressed, and in the event that such persons, or any of them, refused to pay the charges at the time of delivery, plaintiff promised and agreed to pay the defendant for the dispatches so sent; that defendant never transmitted the messages, and plaintiff has been damaged thereby in the siim of $60 in each case, -and demands judgment for $180, exclusive of interest and costs of this suit. There was a trial to a jury, and a verdict in favor of plaintiff, for $150.75. From a judgment entered accordingly, and an order overruling a motion for a new trial, de* fendant; appeals. On the trial the plaintiff testified that he had sustained damages by reason of defendant’s failure to transmit the three telegrams in the sum of 75 cents, and no other evidence was offered on the question of damages, concerning which the court charged the jury as follows: “This is an action brought by Mr. Kirby, under the statute, to recover statutory damages which have resulted, or might have resulted, by reason of the failure of the Western Union Telegraph Company, the defendant herein, to transmit messages. Our statute fixes that at $50 in each case of violation. Here there are alleged to have been three violations, and consequently, if you find for the plaintiff, under the instructions of the court and the evidence in the case, you will be justified in bringing in a verdict for him of $150, and, added to that, twenty-five cents in each case in which you find he has sustained actual damages; that is, if you find for the plaintiff. * * * There is only one thing you can do if you find for the plaintiff. If there is any damages at all, you must find $50 in each instance. If you cannot find that, you must find for the defendant.” An exception to the foregoing instruction was allowed, and the giving of the same is assigned as error.

It will be observed that the complaint contains no sentence, word, or syllable on which to base a conjecture that plaintiff’s right of action, or any part' thereof, was predicated upon a statutory penalty, or that he desired to recover more than the actual damages sustained by reason of defendant’s failure to transmit the messages. The pleadings in an action and the evidence offered upon the issues thus raised constitute the only basis for a judgment; and, where an action is brought to recover a statutory penalty, the complaint should at least contain a reference to the statute creating and fixing such penalty, and a specification of the particular acts or omissions of the defend? ant which it is claimed are in violation of such statute. Tl^e same question seems to have been presented to and decided by this court in Kirby v. Telegraph Co., 57 N. W. 202, To the same effect, see People v. Brooks, 4 Denio, 469; Briscoe v. Hinman, Deody, 578, Fed. Cas. No 1,887; Fish v. Manning, 31 Fed. 340; and cases there cited. Ruled by the case of Kirby v. Telegraph Co., supra, the error under consideration is decisive of this case, and a consideration of other questions presented by the record is unnecessary. The pleadings and evidence do not justify the instruction of which appellant complains, nor is plaintiff entitled to recover a statutory penalty thereunder. The judgment of the trial court is therefore reversed, and the case remanded for a new trial.