{
  "id": 8720245,
  "name": "Frauenthal v. Western U. Tel. Co.",
  "name_abbreviation": "Frauenthal v. Western U. Tel. Co.",
  "decision_date": "1887-11",
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  "first_page": "78",
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      "cite": "50 Ark. 78"
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  "last_updated": "2023-07-14T17:56:08.326499+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [],
    "parties": [
      "Frauenthal v. Western U. Tel. Co."
    ],
    "opinions": [
      {
        "text": "Smith, J.\nThe 10iA section of the Act of March 31,1885, declares that \u201cevery telegraph company and telephone, company doing business in this state must, under a penalty of five hundred dollars for each and every refusal so to do, transmit over its wires to localities on its lines for any individual or corporation or other telegraph or telephone company, such messages, dispatches or correspondence as may be tendered to it by, or to be transmitted to, any individual or corporation or other telegraph or telephone companies, at the price customarily asked and obtained for the transmission of similar messages, dispatches or correspondence, without discrimination as to charges or promptness.\u201d\nAnd by the fourteenth section of the same act, section 6419 of Mansfield\u2019s Digest, which imposed a penalty for a negligent failure to transmit \u2019a dispatch, was expressly repealed. Session Acts of 1885, p. 176.\n\u25a0 The present action was brought to recover the penalty of five hundred dollars prescribed by the act, for failing to deliver the following message :\n\u201c Conway, Ark. May 10, 1886.\nCowgill & Hill,\nCarthage, Mo.\nGive us your lowest figures on flour.\nM. & J. Frauenthal & Co.\u201d\nThe telegram was transmitted promptly as far as Kansas City, Mo., but was lost between that place and Carthage by the negligence of the defendant. A jury was waived and the court declared the law as follows :\n\u201cThe plaintiffs are not entitled to recover unless they show a refusal on the part of the defendant to transmit the-message, and a refusal to transmit does not mean mere negligence in transmission, but implies an act of the will on the part of the defendant or its servants, such that they wilfully decline or fail to transmit, intending that the message shall not be s'ent. If the defendant receives the message, and makes a bona fide effort to transmit, however negligently, there is no refusal.\u201d\nAnd as there was no evidence of a wilful refusal by the defendant to receive and transmit the message, the finding and judgment were in favor of the defendant.\nUnder the act of 1885, no penalty is recoverable for a mere negligent omission to transmit or deliver a message-For the redress of such injuries, the party aggrieved is remitted to .his remedy for damages. This has been decided in Indiana, which once had upon its statute books a law similar to section 6419 of Mansfield\u2019s Digest, but repealed it- and substituted provisions substantially like our present law. W. U. Tel. Co v. Steele, 108 Ind. 163 ; S. C. 9 N. E. Rep. 171; W. U. Tel. Co. v. Swain, 109 Id. 405.\nIn the case first cited the court say :\n\u201cIt is settled law that a penal statute must be strictly construed, and we are therefore required to confine the operation of the statute to the case which it specifies, for we cannot extend it by construction. Acting upon this rule,, we must hold that the act of 1885 does not prescribe a, penalty for neglect in transmitting messages. This conclusion is, indeed, the only one that can be reached without greatly enlarging the words of the statute; and it is strengthened by the fact that the statute, which the act of 1885 repeals, prescribed a penalty for a negligent breach of duty, while that of 1883 contains no such provision; thus clearly evincing the intention of the legislature not to give a penalty for a negligent breach of duty.\u201d\nJudgment affirmed.",
        "type": "majority",
        "author": "Smith, J."
      }
    ],
    "attorneys": [
      "Denison & Frauenthal, for appellants.",
      "TJ. M. & C. JB. Fose, for appellee."
    ],
    "corrections": "",
    "head_matter": "Frauenthal v. Western U. Tel. Co.\n'Telegraph Companies: Negligent omission to transmit message.\nThe Act of Mareh 31,18851, imposes a penalty on telegraph companies for refusing to transmit messages, but prescribes no penalty for a mere negligent omission to transmit or deliver a message; and for an injury resulting from such negligence, the party aggrieved is remitted to an action for damages.\nAPPEAL from Faulhner Circuit Court.\nF. T. VaughaN, Judge.\nDenison & Frauenthal, for appellants.\nThis suit is for the penalty prescribed by Aots 1885, p. \u2022178.\nA failure to transmit under certain circumstances amounts to a refusal under the statute; a failure to deliver is a failure to transmit. 84 Ind. 176; 41 Arh. 79 ; Bowviev Law Die. p. 527. Refusal is a neglect after demand. 4 Cush. 178. See also 6 Cray 224; 9 Mete. (Mass.') 432; 8 Cow. 88; 9 Wheat (U. 8.) 325.\nWhen a failure to perform an act happens through the negligence of the party and which could have been avoided, \u2022a failuae under such circumstances amounts to a refusal. 15 Mieh. 525; 35 Penn. 8t. 298.\nIt is true section 10 of the act leaves out the word \u201cneglect\u201d which formerly appeared in the act of 1861, but for a \u201cwilful\u201d neglect it provided a penalty. Secs. 7 and 8. The intention of the act was to reach not only refusal, but neglect to transmit.\nTJ. M. & C. JB. Fose, for appellee.\nThe Aet of 1885, p. 170, repeals the former statute prescribing a penalty for a negligent failure to - transmit a message. Acts 1885, p. 180. This act inflicts a penalty only in case of a refusal to transmit. This is manifest by comparing it with sec. G419 Mansf. Dig. which it repealed.\nIn Indiana, where there is a similar statute, it is held that the penalty can no longer be recovered for mere negligence in transmission. 8 N. E. Rep. 171; 9 Id. 78.\nSee 7 Sup. Court Rep. 1126."
  },
  "file_name": "0078-01",
  "first_page_order": 86,
  "last_page_order": 89
}