The statute of Indiana declares that 'every electric telegraph company, with a line of wires wholly or partly in this state, and engaged in telegraphing for the public, shall, during the usual office hours, receive dispatches, whether from other telegraphing lines or from individuals; and on payment or tender of the usual charge, according to the regulations of such company, shall transmit the same with impartiality and good faith, and in the order of time in which they are received, under penalty, in case of failure to transmit, or if postponed out of such order, of one hundred dollars, to be recovered by the person whose dispatch is neglected or postponed: provided, however, that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest out of its order, and that communications for and from officers of justice shall take precedence of all others,' (section 4176, Rev. St. Ind. 1881;) and that 'such companies shall deliver all dispatches, by messenger, to the persons to whom the same are addressed, or to their agents, on the payment of any charges due for the same: provided, such persons or agents reside within one mile of the telegraphic station, or within the city or town in which such station is,' (section 4178, Id.)
The present action is brought by William Pendleton, the plaintiff below, to recover of the Western Union Telegraph Company the penalty of $100 prescribed by the above statute, for failing to deliver at Ottumwa, in Iowa, a message received by it in Indiana for transmission to that place. The complaint, as finally amended, alleges that the defendant below, the Western Union Telegraph Company, is a corporation organized and subsisting under the laws of Indiana, with a line of wires from Shelbyville, in that state, to Ottumwa, in Iowa; that on the fourteenth of April, 1883, at 35 minutes past 5 o'clock in the afternoon, at which time the company was engaged in telegraphing for the public, the plaintiff delivered to its agent, at its office in Shelbyville, the following telegram for transmission to its office in Ottumwa, viz.:
'APRIL 14, 1883.
'To Rosa Pendleton, care James Harker, near City grave-Yard, Ottumwa, Iowa: Have you shipped things? If not, don't ship. Answer quick.
'WM. PENDLETON.'
—That, upon its delivery, the plaintiff paid the agent 60 cents, being the amount of the charge required for its transmission from Shelbyville to Ottumwa; that, without any fault or interference on his part, the company, after transmitting the message to Ottumwa, where it was received at half past 7 in the afternoon of that day, failed to deliver it either to Rosa Pendleton or to James Harker, whereby the plaintiff sustained damage and the defendant became liable for $100, under the statute of Indiana, for which sum plaintiff demands judgment.