
    Cumberland Telegraph & Telephone Company v. Jasper O. S. Sanders.
    Telephones. Messages. Failure to transmit and deliver. Code 1892, ? 4326.
    In a suit against a telephone company, Code 1892, § 4326, imposing a penalty upon telephone and telegraph companies for failure to “transmit correctly” and “deliver” any “message or matter received for transmission” “addressed to a person” must he strictly construed and confined to messages which are in writing.
    From the circuit court of Tallahatchie county.
    ETon. Samuel C. Oooh, Judge.
    The appellee, Sanders, was plaintiff, and the telephone company, the appellant, defendant in the court below.
    The appellee at Charleston, Miss., made three efforts to call up by telephone parties at Sumner, Miss. No message in writing was' given to the appellant’s agent for transmission, and the parties were never called up. In the magistrate’s court the appellee recovered $150, the sum demanded, $75 of which was for the statutory penalty and the balance actual damages. On ‘appeal to the circuit court a recovery was had for the statutory penalty only, amounting to $75 for the three failures. The statute in question is as follows:
    4326. Messages Delivered; Penalty for Neglect. A telegraph or telephone company shall deliver all messages addressed to a person residing or having a place of business in any city, town, or village where it may have an office, or within one mile of its office; and if any telegraph or telephone company shall receive any message or matter for transmission, and shall fail, neglect, or refuse, without good and sufficient reason, to transmit correctly and deliver the same within a reasonable time to the person addressed, such person, or the person injured, shall be entitled to recover of tbe company in default tbe sum of twfenty-five dolars, in addition to damages for any injury.
    
      Dinkins, Oaldwell & Ward, for appellant.
    Sanders merely requested tbe agent at Charleston to put in a call for Dudley, at Sumner, as is tbe usual custom when one person wants to communicate with another. No message that Sanders wanted to have transmitted" to Dudley was given to tbe agent at Charleston, and none was addressed to Dudley; Sanders simply asked to have Dudley called to tbe ’phone in order that be might communicate with him over tbe telephone line of appellant company. No charge by tbe telephone company was made and nothing was paid by Sanders.
    In endeavoring to get Dudley to the telephone for Sanders, the agent at Charleston acted as Dudley’s agent. The telephone company claimed no compensation for this service, and therefore no contractual relation existed between Sanders and the telephone company, and none was violatd.
    
      Harris & Powell, on same side.
    No message was ever received by the telephone company for transmission, or by any agent of the telephone company from Sanders within the meaning of the code of 1892, § 3426.
    Sanders went to the store of J. L. Crow, where there is a telephone, and asked Miss Jennie Crow, a clerk in the store, to put'in a “call for Dudley,” and Dudley not being found, to call Denman.
    What was done was purely a gratuitous service. No charge was made by the company and no charge intended to be made unless the message was sent. Dnless a message was sent, what was done here was a mere preliminary to the sending of a message over the telephone, a purely gratuitous service, and the telephone company was not liable either for penalties or for actual damages. Western Union Tel. Go. v. Dozier, 6T Miss., 288. Penalties can never be extended by implication. Mynclc v. Thompson, 99 IT. S., 292.
    It was certainly erroneous to render judgment for three penalties on ibis one transaction. Railroad Go. v. Spencer, 72 Miss., 49.
    
      J. O. S. Sanders and Wilroy & Dudley, for appellee.
    The whole scheme of the business of telephone companies is to receive and deliver what they term “calls” for parties; and designating them “calls” will not alter the fact that they are messages. Their whole purpose is to enable persons to converse at long range. The very life of their business is predicated of their ability to do this, which is the whole scope of their business. To permit the appellant to dodge behind the facts that appellee paid no fees and did not write his messages, would be to permit it to establish regulations which would enable it to evade and defeat the law.
    The company cannot excuse a delay by setting up that the message as offered was not in writing, nor by showing that the price of transmission was not paid in advance (25 Am. & Eng. Ene. Law, 783 (1st ed.), and notes 2 and 3), unless, as was held in Western Union Tel. Go. v. Liddell, 68 Miss., 1, and Same v. Dozier, 67 Miss., 288, it shall be shown that a rule or regulation of the company required these things. In the case at bar it is shown on the contrary that the rule of appellant is not to require written messages, or the payment of charges, but that they undertake to get the parties to the ’phone on verbal messages, and when that is done, the fee is required; not before. The reason of the rule as laid down in the cases cited applies with full force. They will not be allowed to establish such rules and regulations and then set them up as a defense to suits. 25 Am. & Eng. Enc. Law (1st ed.), 784, 785.
    The purpose of the law is to “quicken the diligence of telegraph and telephone companies in the transmission of dispatches” (the language of the court in W. 'U. Tel. Go. v.' Gibb, 
      58 Am. Sep., 756), and tbe letter as well as tbe spirit of tbe statute is broad enough to cover this case, tbe language used being “message or matter,” and if these so-called “calls” are not messages, they are at least “matter” within tbe purview of tbe statute. Section 4326, Code 1892. While it is universally true that tbe penal statutes are to be strictly construed, it must not be so construed as to defeat tbe clear intention of tbe law. This is tbe rule as laid down by Mr. Blackstone, and has been followed by tbe decisions of tbe courts of this state, and we believe by every other state in America. Railroad Go. v. Hemphill, 35 Miss., 17; Green v. Weller, 32 Miss., 650; and 23 Am. & Eng. Enc. Law (1st ed.), 376, 377, and note 2 on page 377.
    Argued orally by
    
      J. B. Harris, for appellant.
   Whitfield, C. J.,

delivered tbe opinion of tbe court.

Section 4326 of tbe code of 1892 is a highly penal statute, and must be strictly construed. We are clearly of tbe opinion that tbe only messages or matter referred to in that section are written or printed messages or matter. Tbe very language of the statute clearly indicates this. Tbe messages or matter tbe failure to transmit correctly and deliver which subjects the telegraph and telephone companies to the penalty therein provided are declared to be messages “addressed to a person,” etc. These messages, it is said, must be transmitted correctly; that is, correctly as written. “To transmit correctly and deliver the same” — that is, the messages or matter so addressed — is the precise language used. It may be true that a large part of the messages or matter handled by a telephone company is orally delivered as the business is actually conducted, but the question is what character of messages or matter this particular statute describes when it provides the penalty for tbe failure to correctly transmit and deliver such messages or matter. Tbe statute itself is very imperfectly framed as regards telephone companies, for there is a manifest difference in some respects between tbe nature of the business conducted by tbe two companies, as tbe respective businesses are actually conducted; and this defect or imperfection in the statute, as it relates to telephone companies, properly calls for an amendment by tbe legislature. It is our business to construe tbe statute strictly as it is now framed, and under tbe familiar principles of construction applicable to penal statutes we are of tbe opinion that wbat took place here is not within tbe purview of the statute.

As stated in Western Union Telegraph Co. v. Dozier, 67 Miss., 291, 7 South., 326, “Tbe very expression as to a message delivered to be sent carries with it tbe idea of a written or printed messageand so here tbe very expressions to which we have referred clearly indicate that as to telephone companies, as tbe law now stands, only those which are written or printed come within tbe purview of this statute. There was nothing here but a mere call, the object of the call being to secure the presence of the parties at the telephone at Sumner, and to communicate with them as desired. Until the legislature shall so amend the law as to make it clear that this sort of matter orally delivered and transmitted is meant to be dealt with in this penal fashion, the penalty cannot be recovered.

Reversed and remanded.  