
    No. 13,317.
    The Western Union Telegraph Company v. Jones.
    Telegbaph Company. — Negligence.—Penalty.—Under the act of 1885 a telegraph company is not liable for the penalty prescribed therein where the only wrong proved is a negligent one.
    
      Same. — Special Finding. — Presumption.—In an action to recover a penalty imposed by law, it can not be presumed, in aid of a special finding, that the defendant violated the law; the presumption is that the law was obeyed.
    From the Bartholomew Circuit Court.
    
      J. E. McDonald, J. M. Butler and A. L. Mason, for appellant.
    
      G. W. Cooper and G. B. Cooper, for appellee.
    
      Filed Nov. 15, 1888.
   Elliott, J.

The facts stated by the court and the conclusions of law drawn by it, very clearly show that the appellant was held liable for the statutory penalty because it negligently failed to deliver a telegram sent by the appellee to Samuel Jones. There is no finding of bad faith or partiality, and none can be presumed.

It is quite clear that, in an action to recover a penalty imposed by law, it can not be presumed, in aid of a special finding, that the defendant violated the law; on the contrary, the presumption is that the law was obeyed and the statutory duty performed. The case must, therefore, be regarded as. one of negligence only, and the question is whether, under the act of 1885, a telegraph company can be made to pay the penalty prescribed by that act where the only wrong proved is a negligent one. This question is settled against the appellee by the decisions of this court. Western U. Tel. Co. v. Swain, 109 Ind. 405; Western U. Tel. Co. v. Steele, 108 Ind. 163.

It is to be remembered that the right to a penalty is purely a statutory one, and a penalty is only recoverable in the cases prescribed by the statute. It is also to be remembered that a penal statute can not be extended by construction. It follows, therefore, that unless a statute clearly gives the right to a penalty none exists. As the act of 1885 does not prescribe a penalty for a negligent breach of duty, no penalty can be recovered. We are not, it may not be improper to remark, dealing with a claim for damages, but with a claim to a statutory penalty.

Judgment reversed.  