— -This action was instituted by Waddy Thompson in his lifetime to recover the statutory penalty of one hundred dollars for the defendant giving to him false information in relation to the time in which a dispatch, which he made, application to send, could be sent. Waddy Thompson recovered in the circuit court, and the defendant appealed to this court i after the appeal he died, and the action was here revived in the name of his executrix.
The petition alleges: “ That on Sunday, the twenty-first day of February, 1886, at eight o’ clock in the evening, at the office and station of defendant, in Kansas City, Missouri, * * * plaintiff made application * * * to send a dispatch * * to one J. H. Bothwell, at Sedalia, Missouri, * * * and plaintiff * * * asked defendant’s agent and servant whether or not defendant could and would send and transmit and deliver a dispatch from plaintiff, at said Kansas City, to said J. H. Bothwell, at Sedalia, and *196deliver said dispatch immediately to said J. H. Both-well the same evening at Sedalia. Plaintiff then and there stating that . * * * it would' do no good to send the dispatch if it could not be transmitted that day.” It also appeared from the petition that the telegram was of an ordinary business character, and that the object of the sender of the dispatch would have been accomplished by the delivery of it in Sedalia at any time after twelve o’ clock Sunday night, in time to have enabled Bothwell to have taken the train from Sedalia .to Kansas City at four o’ clock on Monday morning.
The false information alleged by the petition to have been given by the defendant’s agent to the applicant was that the dispatch could be sent at once, whereas in fact the office at Sedalia was not a night-office on Sunday, that is, that it was not open on Sunday night.
The penalty to recover which this suit was instituted is imposed by the following statute (R. S. sec. 885): “In all cases where application is made to any telephone or telegraph company, or the operator, agent, or servant thereof, to send a dispatch, it shall be the duty of such operator, agent, clerk or servant who may receive dispatches at that station, plainly to inform the applicant, and if required by him, to write upon the dispatch that the line is not in working order, or that the dispatches already on hand for transmission will occupy the time, so that dispatch offered cannot be transmitted within the time required if the facts be so ; and for omitting so to do, or for intentionally giving false information to the applicant in relation to the time .within which the dispatch offered may be sent, such operator, agent, clerk or servant, and the company by which he is employed, shall incur a like penalty as in section eight hundred and eighty-three.”
The penalty imposed by the section mentioned is one df one hundred dollars “to be recovered with costs of suit, by civil action, for the benefit of the person or persons or company sending or desiring to., send such dispatch.”
*197It appears so clearly from the language of the statute, that no argument is needed to prove it, that the penalty is imposed for the benefit of one applying to send a dispatch, and that, therefore, the penalty cannot be incurred except where application is made by some one to send a dispatch.
IIow can an application be said to be made,' within the meaning of the statute, when the application is to send a dispatch which the applicant has no legal right to send, or the telegraph company a legal right to transmit ? If the company is by positive law prohibited from transmitting the dispatch, can the one applying to send it be included within the protection of the statute ? We think clearly not. And, in our opinion, it matters not whether the prohibition of the law against the transmission of the dispatch is on account of its form, or the time within which the applicant asks to have the dispatch sent. But, if there be any such difference, it certainly cannot be in favor of the matter of time, since the false information punished by the statute is false information in relation to the time within which a dispatch can be sent, and the statute must be held to mean such time as that within which a dispatch may be legally sent.
We, therefore, hold that if we apply to send a dispatch, at a time the telegraph company is prohibited by law from transmitting it, the company, by giving false information that the dispatch can be sent at that time, does not incur the penalty imposed by the statute. How can the applicant be injured by false information as to the physical ability of the company to transmit the dispatch, if the company had no power under the law to do so ? Of the law the applicant is bound to know, and hence cannot be ignorant of the want of the company’s legal power to transmit the dispatch.
The defendant was prohibited by section 1578, ftevised Statutes, from transmitting the dispatch in suit on Sunday, unless the transmission of it was under the statute a work of necessity (Rogers v. Tel. Co., 78 *198Ind. 169); and it was not a work of necessity since the dispatch was on ordinary business.
The applicant asked that the dispatch be sent on Sunday, the information was in relation to sending the dispatch on Sunday, and hence the company incurred no penalty. It matters not that the applicant might have asked for the transmission of the dispatch early on Monday morning, since he did not do so.
Under the petition, therefore, the plaintiff was not entitled to recover ; and the judgment is reversed and the petition dismissed.
All concur.