^i^m^mp~--^!:rz=:^ II- /■ T c8845eL THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LlSCHEU.B^WDEN&NEiL, DAVENPORT. - \ \ A TREATISE ON THE LAW RELATING TO ELECTRICITY. BY SIMON G. CROSWELL, 111 FORMERLY OF THE LAW DEPARTMENT OF THE THOMSON-HOUSTON ELECTRIC COMPANY AND GENERAL ELECTRIC COMPANY ; AUTHOR OF " A TREATISE ON THE LAW RELATING TO EXECUTORS AND ADMINISTRATORS," AND " A COLLECTION OF PATENT CASES." BOSTON: LITTLE, BROWN, AND COMPANY. 1895. Copyright, 1895, By S. G. Croswell. T John Wilson and Son, Cambkidge, U.S.A. PREFACE. The rapid application of Electricity to various com- mercial uses has produced a corresponding growth of statutes and adjudged cases, until there has been formed a considerable branch of the law devoted wholly to these subjects. The aim of this book is to set forth this body of law in its present development. Prominent among the subjects which are included in this treatise are the Nature and Qualities of the various Franchises neces- sary for Electrical Lines and the mode of acquiring them, including the important Federal Franchise of Telegraph Companies ; the Liability of Electrical Com- panies for Negligence in the Construction and Main- tenance of their lines and machinery ; the Municipal Ownership of Electric Light Plants ; the Placing of Wires Underground ; the Conflicting Rights of Electric Railways and Telephones in the same highways ; the decisions as to the Operation of electric lines, including especially Telegraph lines, and covering the Prevention of Discrimination, the Liability for Errors or Delay in the Transmission of telegrams ; the various Stipula- tions on the printed Telegraph Blanks and their effect on the Duties and Liability of the telegraph company ; 6708^6 iv PREFACE. the Measure of Damages in suits against Telegraph Companies, and important chapters on the Taxation of Electric Companies and on Electric Railway accidents. No previous book contains all the topics discussed in this work, and several important subjects herein contained have never before been discussed in any book. The idea of this work was suggested to the author by his experience of the need of such a book while one of the Law Department of the General Electric Company, and this volume has grown from that expe- rience, and is now offered to the profession in the hope that it may relieve at least in some degree their arduous labors in the matters of which it treats. S. G. C. Cambridge, Mass., September, 1895. TABLE OF CONTENTS. BOOK I. INCORPORATION AND FRANCEISES. CHAPTER I. INTRODUCTORY. 1. Introduction. 2. General Characteristics. 3. The Telegraph. 4. Public Character of the Tele- graph. England. 5. Public Character in the United States. 6. Test of Public Character. 7. A Telegraph Company not a Com- mon Carrier. 8. -Telegraph Company not a Bailee for Hire. 9. Bailee localio operis faciendi. 10. True position of the Telegraph Company. 11. Federal Franchise. 12. Opinion in Pensacola Tel. Co. v. W. U. Tel. Co. § 13. Telephone is a Telegraph. 14. English Case. Atty.-Gen. v. Edi- son Telegraph Company. 15. Wisconsin Case. Wisconsin Tele- graph Company v. Oshkosh. 16. Telephone a Telegraph(con^/7i!/e(/). 1 7 . Telephone a Telegraph(cona'ni/ec/). 18. Telephone is a Public Use. 19. F^lectric Light. General View. 20. Electric Light a Public Use. 21. Municipal Ownership of Electric Lighting I'lants. 22. Electric Kailway a Public Use. 23. Electric Railway different from Steam or Horse Railway. 24. Public Distinguished from Muni- cipal Corporation. 25. Summary. CHAPTER II. INCORPORATION. 26. Incorporation. 27. Under General or Special Laws. 28. Telephone Company under Tele- graph Act. 29. Electric Railways. Electric Light Companies. 30. Void Charters. 31. Special Statutes. Telegraph Com- panies. 32. Telegraph Companies, Number of Subscribers. § 33. Articles of Association. Tele- graph Companies. Incorporation of Telephone Com- panies. Incorporation of Electric Light Companies. 36. Compliance with Statutes Neces- sary. 37. Proof of Incorporation. 34 35 VI TABLE OF CONTENTS. CHAPTER III. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. § 38. Franchises or Eights of Way. 39. Federal Frauchise of Telegraph Compauies. 40. Telegraph Act of July 24, 1866. 41. Effect of this Act. 42. Act of Cougress renders void hos- tile State Legislation. 43. Act prevents exclusion from State or any Portion. 44. Act does not give Right of Way without Owner's Consent. 45. Act renders Exclusive Contracts with Railway Companies in- valid. 46. Does not prevent putting Wires Underground. § 47. Act grants an Easement. 48. Act does not allow Telegraph to displace Electric Light Wires. 49. State Statute requiring Local Agent of Foreign Companies. 50. Acceptance of Franchise. 51. State Statutes as to Delivery of Messages. 52. State Tax Statutes. 53. Tax on Receipts from Messages. 54. Tax on Frauchise. 55. Tax on Business. 56. Tax on Poles. 57. Tax on Property. 58. Summary. CHAPTER IV. FRANCHISES OR RIGHTS OF WAY. STATE STATUTES. § 59. Necessity of Franchise or Right of Way. 60. Right to grant Franchise belongs to Legislature. 61. State Franchise for Telegraph Line over Highways and Waters. 62. Right of Way on Railroads, State Statutes. 63. Right of Way over Private Lands, State Statutes. 64. Statutes do not authorize Bridges. 65. Acquisition of Right of Way by Purchase, Statutes. 66. Eminent Domain, State Statutes. 67. Eight of Eminent Domain con- ferrerl by Statute. 68. States where no Eminent Domain Statutes. 69. Eminent Domain Statute, Ala- bama. § 70. Eminent Domain Statute, Arkan- sas. 71. Eminent Domain Statute, Cali- fornia. 72. Eminent Domain Statute, Colo- rado. 73. Eminent Domain Statutes,Florida, Georgia. 74. Eminent Domain Statutes, Illinois, Indiana, Iowa. 75. Eminent Domain Statutes, Kansas, Louisiana, Maryland. 76. Eminent Domain Statute, Michi- gan. 77. Eminent Domain Statutes, Missis- sippi, Missouri. 78. Eminent Domain Statutes, Ne- vada, New York. 79. Eminent Domain Statutes, North Carolina, Oliio. 80. Eminent Domain Statutes,Oregon, Tennessee, Texas. TABLE OF CONTENTS. Vll § 81. Eminent Domain Statutes, Vir- ginia,, Wiisliington, Wyoming. 82. Telephone Franchise, State Stat- utes. 83. Electric Light Franchise, State Statutes. 84. Electric Kailway, State Statutes. 85. Consent of Municipal Authorities. 86. Statutes against I'rescription. 87. Connecticut : Telegraph, Tele- piione. Electric Light or Power. 88. Illinois: Telegraph and Tele- phone. § 89. Maine : Electric Wires. 'JO. Ma.ssachusett8 : 'J'elfgraph. 9L Michigan: Electric Wires. 92. New Ilampsiiire : Telegraph and other Wires. 93. New Jersey : Telegraph and other Wires. 94. New York : Electric Wires. 95. renu.sylvania : Electric Wires. 96. Ivhode Island : Telegraph and other Wires. 97. Vermont : Telegraph Posts and Wires. CHAPTER Y. EMINENT DOMAIN. § 98. Eminent Domain. 99. Kminent Domain is vested in Legislature. 100. Constitutionality of Statutes. 101. Tel(>gra])h, Tel(>phone, Electric Light and Electric Railways are Public Uses. 102. Just Compensation. 103. What. is a Taking. 104. Poles and Wires in Highway. 105. Horse Railways not an Addi- tional Burden on the Highway. 106. New York Decisions. Street Rail- way an Additional Servitude. 107. Electric Railway no Additional Servitude. 108. Electric Railway no Additional Servitude (continued). 109. Electric Railway no Additional Servitude (cimtinued). 110. Telegraph and Telephone Poles are an Additional Servitude. 111. Telegraph an Additional Servi- tude. 112. Telephone an Additional Servi- tude. 113. Other Cases to the Same Point. 114. Right of Abutting Landowner to Access to Land. § 115. Wires alone over Iligliway not an Injury to Landowner. 116. Tclegraiih and Telephone Poles not Additional Servitude in some States. 117. Difference between City Streets and Country Roads. 118. L'nderground Wires. 119. Condemnation of Location over Railways. 120. Riglit to Condemn not defeated by Exclusive Contract of other Telegra])h Company. 121. Right Condemned must not In- terfere with Use of Railroad. 122. Compensation to Railroad. 123. Compensation to Lamlowner. 124. Compensation to Landowner. 125. Compensation to Landowner. 126. Electric Light Poles are Addi- tional Servitude. 127. Condemnation of one Street Rail- way by Another. 128. Failure to agree with Owner. 129. Easement only acquired by Con- demnation. 130. Proceedings must follow Statute 131. The Petition. Till TABLE OF CONTENTS. CHAPTER TI. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. § 132, 133, 134, 135, 136, 137. 138. 139. 140. 141. 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. Grant by Municipal Authorities. Statute, Alabama. Statutes, California. Statutes, Colorado, Connecticut. Statutes, Florida, Illinois, In- diana. Statutes, Iowa, Kansas, Ken- tucky. Statutes, Louisiana, Maine, Mary- land, Massachusetts, Michi- gan. Statutes, Mississippi, Missouri, Nebraska, New Hampshire. Statutes, New Jersey, New York, North Carolina, Oliio, Penn- sylvania. Statutes, Illiode Island, Texas, Vermont. Statutes, Virginia, Washington, West Virginia. Statutes, Electric Railways. ^lunicipal Consent always neces- sary to the Use of Highways. Whether Municipality has Power to authorize such Use. Power of ^luuicipality to grant Franchise. Delegation of Powers. Mode of granting Franchise. Stipulations in grant of Fran- chi.se. Use of Poles by another Com- pany. Extraneous Stipulations. Can Municipal Authorities refuse a Location of Poles. Interpretation of Municipal Grants. Discretion of Local Authorities final. Proceedings must follow Stat- utes. Poles on Private Land. Sale of Franchi.se at Auction. Assignability of Franchise. Revocation of Right to set Poles. § 160. Grant of Location may be re- voked, when. 161. Location of Poles, when re- vocable. 162. Underground Wires. 1G3. Permissive Statutes for Under- ground Wires. 1 64. Mandatory Statutes. 165. Same Subject (continued). 166. Constitutionality of Under- ground Statutes. 167. Cases on Underground Statutes. 168. Exclusive Franchises. 169. Exclusive Grant fur Telegraph by Act of Legislature. 170. Exclusive Right of Way for Telegraph by Contract. 171. Grant of Monopoly separable. 172. Exclusive Right in Telegraph Company. 173. Exclusive Grants by Municipal Authorities. 174. Arkansas, Kansas, Louisiana. 175. Missouri, Ohio, Tennessee, Texas, Virginia, 176. Intent to grant Exclusive Privi- lege not Inferred. 177. Exclusive Grant not implied. 178. Exclusive Franchise for Street Railway sustained. 179. Interpretation of Exclusive Rights. 180. Exclusive Right by Statute. 181. Right to use Electricity for Lighting. 182. Right to use Electricity as Motive Power, Street Railways. 183. Right to set Poles and string Wires as incidental. 184. Inferred Right to use Electricity. 185. Inferred Riglit to use Electric Motive Power {continnid). 186. Grant of Right by Municipality only. 187. Right to use any Motive Power. TABLE OF CONTENTS. IX CHAPTER VII. MUNICIPAL OWNERSUIP OF ELECTRIC LIGHT PLANTS. 188. Municipal Owuership. 189. Muuicipal (Jwuership, Massa- chusietts Decisious. 190. Municipal (Jwucrsliip, Implied I'ower of, 191. Commercial Lightiug by Towus. 192. rurcliase of Existing Tlant. § 193. State Statutes. 194. luteiprctiition of Massachusetts Statutes. 195. Iowa, Michigan, Mississippi, Ne- braska. 196. C)hio, Peuusylvauia. 197. Constitutiooality of these Acts. BOOK II. CONSTRUCTION AND MAINTENANCE. CHAPTER YIII. CONSTRUCTION AS AFFECTED BY FRANCHISE. § 198. Conditions Precedent. 1 99. Construction as affected by Fran- chise. 200. Liabilities to Travellers. 201. Liability to Travellers. Town. 202. Poles set without Authority a Nuisance. 203. Removal by Town. Doubtful Franchise. 204. Liability to Abutting Landowner under Franchise. 20.5. Special Injury to Landowner by Construction. 206. Injury to Kcal Estate by build- ing Electric Kailway. 207. Diverting Water on to Abutting Lands. 208. Removal of Tracks for Building Sewer. 209. Injury to Trees. 210. Injury to Trees, Statutes. 211. Same Subject {continued). 212. Conflicting Franchise for Use of same Street. 213. Telephone r. Electric Railway. §214. 215. 216. 217. 218. 219. 220. 221. 222. 223. 224. 225. 226. 227. 228. 229. 230. 231, 232, 233 Hud.son River Telephone Com- pany r. Watervliet Turnpike and Railway Company. Same Sultject (continued). Same Subject (continued). Same Subject (continued). Same Subject (continued). Same Subject (continued). Same Subject (continued). Same Subject, English Case. Guard Wires. Telegraph v. Electric Light. Telephone i'. Electric Light. Electric Light i\ Electric Light. Removal of Gas Posts. Electric Railway Crossing Steam Railway Tracks. Michigan, Croissings of Steam and Electric Railways. Steam Railway removing Elec- tric Railway's Trolley Wire. Safeguards ordered by Court of Equity. (Opposite Rule in Massachusetts. Equitable Injunction. Telegraph Comp.niiy v. Steam Railway Company. TABLE OF CONTENTS. CHAPTER IX. CONSTRUCTION AND MAINTENANCE OP LINES. § 234. 235. 236. General View. Liability for Negligence. Construction and Maintenance of Lines as affecting Travellers on the Highway. 237. Liability for Blasting 238 239 Statutes regulatiuo; Construction. Statutes, Alabama, Telegraph Statute. 240. Statutes, Delaware, Telegraph. 241. Statutes, Massachusetts, Tele- grapli and Teleplione. 242. Massachusetts Statutes, AU Electric Lines. 243. Statutes, Massachusetts. 244. Statutes, Ohio, Light and Power. 245. Statutes, Vermont, Telegraph, Telephone, Electric Light. 246. Wisconsin, Statutes, Electric Light and Power. 247. Stringing Wires. 248. Falling or Sagging Wire. 249. Falling or Sagging Wire Evi- dence of Negligence. 250. Electric Light Wire broken by Storm, Negligence and Con- tributory Negligence. § 251. Contributory Negligence, volun- tarily touching Electric Wire. 252. Falling of Overhead Apparatus of Street Railway Evidence of Negligence. 253. Falling of Wires occasioned by Fires, Negligent KemovaL 254. Wire attached to Building. 255. Company responsible only for its own Wires. 256. Insulation of High Tension Wires. 257. Negligence in removing Dead Wires. 258. Removal of Wires on Another Company's Fixtures. 259. Disconnecting Wires for Moving Buildings. 260. Connecticut Statute. 261. Maine Statute, Moving Build- ings. 262. Massachusetts Statute. 263. New Hampshire Statute, Dis- connecting Wires. 264. New Hampshire, Liability for Injuries. 265. Wisconsin Statute, Moving Buildings. CHAPTER X. LIABILITY OP ELECTRIC COMPANY TO EMPLOYEES FOR DEFEC- TIVE CONSTRUCTION AND MAINTENANCE. § 266. Liability of Company to Em- § 269. ployee, Assumption of Risk. 270. 267. Duty of Providing Suitable Tools 271. and Places to work. 272. 268. Question of Negligence. Latent Defects. Delegation of Repairs. vSpecial Orders of Employer. Contributory Negligence. CHAPTER XL SUBMARINE TELEGRAPH LINES § 273. Submarine Telegraph Lines. § 274. Submarine Telegraph. Fouling Anchor. TABLE OF CONTENTS. XI CHAPTER XII. CONSTRUCTION LIENS. § 275. Mechanic's and Other Liens. § 278. 276. Statutes affecting this Subject. 279. 277. What is covered by such Lien. 280. Appurtenances. 281. Material furnished. Railway Lien. Miscellaneous Decisions. Landlord's Liens. BOOK III. OPERATION. CHAPTER XTII. § 282. General View, 283. Statutes. OPERATION OF ELECTRIC COMPANIES. § 284. Grouping of Electric Companies. CHAPTER XIV. PROHIBITION OF DISCRIMINATION. §285. Discrimination of Telegraph §301. Companies. 302 286. Discrimination against other 303 Telegraph Lines. 304 287. Messages from other Telegraph 305 Lines. 306. 288. Parallel .and Competing Lines. 307. 289. Same (continued). 290. Reasonable Regulations. 308. 291. Limitations of Discrimination Rule. 309. 292. Furnishing Market Reports. 310. 293. Reports to Bucket Shops. 311. 294. Board of Trade or Stock Ex- 312. change Reports. 313. 295. Discrimination by Telephone 314. Companies. 315. 296. Special Acts as to Telephone 316. Compaiiies, Arkansas. 317. 297. Statute, Connecticut. 318. 298. Statute, Indiana. 319. 299. Statute, Kentucky. 300. Statute, Maine. Statute, Maryland. Statute, Massachusetts. Statute, Michigan. Statute, Tennessee. Statute, Vermont. Statute, Wisconsin. Refusal of Telephones to Tele- graph Companies. United States Letters Patent no Defence to Discrimination. Same Subject. Same Subject {continued). Same Subject (continued). Same Subject (continued). Same Subject (continued). Telephones for Individuals. Statutory Telephone Rates. Indiana Cases. Same Subject (continued). Same Subject (continued). Discrimiii.-xtion of Electric Light and Railway Companies. Xll TABLE OF CONTENTS. CHAPTER XY. OPERATION OF TELEGRAPH LINES, — STATUTES, §320. Operatiou of Telegraph Lines. §335. Minnesota. 321. Arkansas. 336. Mississippi. 322. Califoruia. 337. Missouri. 323. Colorado. 338. Nebraska. 324. Connecticut. 339. Nevada. 325. Georgia. 340. New Jersey. 326. Illinois. 341. New York. 327. Indiana. 342. Ohio. 328. Iowa. 343. Oregon. 329. Louisiana. 344. Pennsylvania. 330. Louisiana (continued). 345. Tennessee. 331. Maine. 346. Virginia. 332. Maryland. 347. Washington. 333. Massachusetts. 348. Wisconsin. 334. Michigan. 349. Summary. CHAPTER XVI. DUTY OF ACCEPTANCE OF MESSAGE. § 350. Duty of Company to receive Messages. 351. Obligation confined to Scope of Business. 352. Criminal and Immoral Messages. 353. Gambling Transactions. 354. Transmission of Messages on Sunday. 355. Telegraph Offices may be open on Sunday. 356. Ordinary Business Messages not to be sent on Sunday. 357. Contract of Transmission made on Sunday void. 358. Penal Statutes. 359. Messages of Charity and Neces- sity. 360. Nature of Necessity. § 361. Messages relating to Sickness and Death are Works of Charity or Necessity. 362. Messages to Doctors. 363. Messages to Lawyers. 364. What are not Works of Necessity. 305. Sunday Delivery. 366. Necessity caused by Sender's In- advertence. 367. Burden of Proof. 368. Waiver of Sunday Law. 369. Company may require Written Message. 370. Waiver of Writing. 371. Waiver of requiring Use of Blanks. 372. Pre-payment of Toll. 373. Pre-payment of Answer. 374. Reasonable Rules. TABLE OF CONTENTS. XIH CHAPTER XVII. OBLIGATION OF TELEGRAPH COMPANY TO USE REASONABLE CARE. § 375. Nature of the Duty. § 384. 376. Twofold liasis of the Duty aud 385. Liability. 386. 377. Tclegra])ii Company not liahle as lusurer or Common Carrier. 387. 378. Origin of the Insuring View. 388. 379. Difference between Telegraph 389. Company and Common Car- 390. rier. 391. 380. Telegraph Company bound to 392. use Keasona])le Care. 393. 381. Correlateil Expressions. 394. 382. " Great Care." 395. 383. " Ordinary Care." " Reasonable Care." Gross Negligence. Practical Importance of the I'hrase. Instances of Gross Negligence. Same Subject {continued). Same Subject [conthmed). Same Subject (continued). Same Subject (continued). Different Distinctions suggested. Tendency to abolish Distinction. Gross Negligence is for the Jury. Evidence on this I'oint. CHAPTER XYHI. LIMITS OF DUTY OF TELEGRAPH COMPANY. § 306. Particulars of Application. 397. Proper Instruments. 398. Repair of Instruments. 399. Competent Operators. § 400. No Liability for Damages caused by Unavoidable Accidents. 401 . Storms orElectrical Disturbances. 402. Notice of Broken Wires. 40;^. Proof of the Exemption. CHAPTER XIX. DUTIES OF TELEGRAPH COMPANY A3 TO TRANSMISSION AND DELIVERY, §404. 405. 406. 407. 408. 409. 410. 411. 412. 413. 414. Duty of Transmission. Total § 415. Failure. Order of ^IVansmission. 416. Accuracy of Transmission. 417. Error is prima facie Proof of 418. Negligence. 419. Delay in Transmission or De- 420. livery. 421. Reasouai)le Care aud Diligence 422. is for the Court or Jury, wheu. 423. Excu>es for Delay. 424. Diligence required in Delivery. 425. Delivery to Person. 426. Evidence of Attempted Delivery. 427. Address to " Care of." 428. Delivery at Hotel or Place of Business. Limited Free Delivery. Statutes as to Free Delivery. Cliange of Residence. Delivery of Written Copy. Delivery by Telephone. Delay caused by Closed Office. Reasonalile Office Hours. Fraudulent Jlessages. Fraud of Telegraph Operator. Same Subject (continued). Negligence as Basis of Fraud. Fraudulent Messages by Third Parties. Substitution of Forged Message. XIV TABLE OF CONTENTS. CHAPTER XX. CONTRIBUTORY NEGLIGENCE. § 429. What is Contributory Negli- gence. 430. Wrong or Insufficient Address. 431. Otlier Instances of Contributory jSegligeuce. § 432. Same Subject (continued). 433. Same Subject (continued). 434. Same Subject (continued). 435. Antecedent Negligence no De- fence. CHAPTER XXL DUTY OF SECRECY AS TO TELEGRAMS AND OTHER MATTERS. §436. Penalties against Divulging of §440. Telegraph Operator exempt from Telegrams. 437. Telegram must be produced in Evidence. 438. Identification of Despatch in Subpoena. 439. Protection of Telegrams in Trans- mission. Jury Duty. 441. Statutes exempting from Jury Duty. 442. Same Subject (continued). 443. Age and other Qualities of Ope- rators. 444. Telegraph Operators running Trains. CHAPTER XXII. DUTY AS TO CONNECTING LINES. § 445. Transmission over other Lines. 446. Lial)ility in Absence of Special Contract. 447. Special Contract exempting First Line. §448. Second Company not released by Special Contract of First Company, when. Usual form of Stipulation. 450. First Company handing to Second Company for Transmission. 449. CHAPTER XXIII. NATURE OF THE LIABILITY OP THE TELEGRAPH COMPANY FOR NEGLIGENCE. §451 Twofold Liability, Contract and Tort. 452. Implied Contract with Sender. 453. Express Contract with Sender. 454. Agency of Sender, Contract Lia- bility. 455. Addressee as Principal'of Sender. 456. Addressee as Beneficiary of Mes- sage. § 457. Same Subject (continued). 458. No Liability in Tort to Sender of Message when Special Con- tract exists. 459. Tort Liability in Cases where no Special Contract. 460. Lia])ility in Contract or Tort to Addressee. 461. Same Subject (continued). TABLE OF CONTENTS, XV 462. Same Subject. United States. 463. Statutory Duty. 464. Distiuctiun between English and American Decisions. 465. l'ul)lic Duty. 466. Obligation to use Due Care. 467. Coiuniou Agency of Telegraph Cuinj)any. 468. Special i'roperty in Message. § 469. Changed Telegram as False Re- presentation. 470. Profession of Autliorityas Agent. 471. Limit to Tarties wiio may sue in Tort. 472. Limitation of the General Rule. 473. Rule as affected by Language of the Statute. CHAPTER XXIY. PENAL STATUTES AS TO TELEGRAMS. § 474. Nature of the Liability. 475. Penal Statutes construed strictly. 476. Instances of Construction. 477. More liberal Construction. 478. No Penalty for Harmless Verbal Errors. 479. Bad Faith, Partiality. 480. Failure to Transmit. 481. Prepayment of Toll, Waiver. 482. Statutory Liability cannot be Avoided by Contract. § 483. Void Contract. 484. Statute not effective outside of State. 485. Constitutionality of Statute. 486. Change in Penal Statutes. 487. Effect of Repeal on Right of Action. 488. Averments necessary in Action. 489. Defence by Company. 490. Jurisdiction of Action. CHAPTER XXY SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS. § 491. Special Contracts. 492. Analogy of Bills of Lading. 493. Regulations or Contracts. 494. Considered as Regulations. 495. Stipulations considered as Regu- lations of Business. 496. Message not on Company's Blank. 497. Assent Presumed, when. 498. Considered as Part of Contract. 499. Stipulations as affecting the Addressee. § 500. Opinion in Aiken i'. Western Union Telcgra])h Company. 501. Same Subject (cnntiniied). 502. Same Subject {continued). 503. Same Subject (continued). 504. Regulations as affecting Actions of Tort by the Addre., c. . 04 . . 107, § 1 . 107, § 2 107, § 3 107, § 4 107, § 5 107, § 6 107, § 7 107, §8 107, § 9 .,S 107 107, § 10 §n ... § 4.36 . . . § 143 . . . § 778 . . . § 778 . . . § 807 . . . § 807 • • • § 321 ... § 321 . . . § 321 ... §61 . . . §265 §§ ''^l, 62, 6.3, 67, 70, 82 §§ 67, 70 §§ 67, 70 . § 174 §§295,321 §§ 295, 321 §§ 285, 295, 321 §§ 285,295, .321 §§ 205, 295, 439 . . §§ 285, 296 . . . . §296 Civ. Code, § 291 Civ. Code, § 293 Civ. Code, § 294 Civ. Code, § 497 Civ. Code, § 536 Civ. Code, § 5.37 Civ. Code, § 538 Civ. Code, § 539 Civ. Code, § 2161 Civ. Code, § 2162 Civ. Code, § 2207 Civ. Code, § 2209 C. C. P., § 200 . Pen. Code, § 391 Pen. Code, § 474 Pen. Code, § 591 Pen. Code, §619 Pen. Code, § 638 Pen. Code, § 640 Pol. Code, § 3663 Sts. 1891, c. 18 . Sts. 1891, c. 19 . Sts. 1893, c. 1.30 Sts. 1893, c. 175 Sts. 1893, c. 204 Colorado Mill's Ann. Mill's Ann. Ann. St., § Ann. St., § Ann. St., § Ann. St.,§ Ann. St., § Ann. St., § Ann. St., § Ann. St., § Ann. St., § Ann. St.,§ Ann. St., § Ann. St., § St., St., 574 587 588 589 590 591 592 , 593 594 , 595 , 632 1392 501 §67 §§ 31, 33 . . §33 §§ 33, 34 . ■ § 143 §§ 61, 63 §§ 265, 274 §265 §274 §.322 § 322 §322 §322 §441 §443 §423 §265 36, 437 §322 §439 §779 § 84, 1.34 § 84, 134 71, 83, 84 §§ 84, 134 §§ 82, 134 61,62 § 143 §198 . §265 §§ 31, 32, 33 . . §61 §§ 285, 323 . . § 323 67, 82. 83 §§ 65, 67 §§ 63, 67 §§ 67, 72 . . § 135 . . §33 . . § 436 XXIV TABLE OF CONSTITUTIONS AND STATUTES. Ann. St., § 1093 Ann. St., § 1394 Ann. St., § 1395 Ann. St.,§ 1390 Ann. St., § 3801 Laws lbS9, c. 276, § 1 Sts. 1891, Kailroads, II Sts. 1891, p. 291 . . Sts. 1893, c. 65 . . . B. 309 §423 §439 § -139 §780 §63 §443 §780 §711 Connecticut. Gen. Sts., § 1477 . . §§ 135, 210, 265 Gen. Sts., § 1759 § 210 Gen. Sts., § 1760 § 210 Gen. Sts., § 3929 § 781 Gen. Sts., § 3943 § 87 Gen. Sts., § 3944 §§ 61, 64, 68, 82, 210 Gen. Sts., § 3946 § 135 Gen. Sts., § 3947 § 135 Gen. Sts., § 3949 § 260 Gen. Sts., § 3950 § 135 Gen. Sts., § 3952 . . §§ 285, 295, 324 Gen. Sts., § 3953 § 324 Sts. 1889, c. 30 § 439 Sts. 1889, c. IGO .... §§ 297 313 Sts. 1889, c. 178, § 1 § 781 Sts. 1889, c. 178, § 2 § 781 Sts. 1889, c. 178, § 3 § 807 Sts. 1889, c. 178, § 4 § 807 Sts. 1803, c. 193 § 135 Sts. 189.3, c. 231 § 193 Delaware. Rev. Code, c. 7 § 782 Rev. Code, p. 938, c. 128, § 19 §§ 240, 265 Rev. Code, p. 947 § 265 Laws of Del., Vol. 18, c. 460 . . § 782 Laws of Del., Vol. 18, c. 088 . . § 265 District of Columbia. Rev. Sts., Supp., c. 71.5, el. 3 . . § 164 Florida. Rev. St., § 378 . Rev. St., § 1150 Rev. St., § 1727 Rev. St., § 1729 Rev. St., § 1737 Rev. St., § 22-52 Rev. St , § 2253 §783 §441 §276 §276 §276 §§ 34, 61, 82, 1.36 . §§31,33,34 Rev. St., § 2254 .... §§33, 34 Rev. St., § 2255 .... §§ 33, 34 Rev. St., § 2256 . . . §§ 61, 82, 136 Rev. St., § 2257 . §§ 61, 62, 67, 73, 82 Rev. St., § 2258 § 319 Kev. St., § 2537 § 265 Rev. St., § 2722 § 319 Rev. St., § 2734 § 436 Acts 1893, No. 1, § 9, el. 12, p. 12 § 808 Acts 1893, No. 1, § 48, p. 28 . . § 783 Code, Code, Code, Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws Laws §§ Georgia. § 3024 .... § 3939 .... § 4439 .... 1884, No. 4.38 . . 1887, No. 365, § 1 1887, No. .365, § 2 1887, No. 365, § 3 1889, No. 276, § 1 1889, No. 276, §2 1889, No. 276, § 3 1889, No. 672 . . 1889, No. 672, § 1 1889, No. 672, § 2 1889, No. 672, § 5 1889, No. 755, p. -36 1890, No. 148, § 1 1890, No. 290 . . 1890, No. 779 . . 1891, p. 108 . . 1892, p. 29, § 9, cl. 2 § §73 §441 § 205 §441 285, 1892, No. 93 § 325 § 325 62, 63, 67 . §05 . §73 • § 325 § 01,64 . §285 • § 436 • § 816 . § 443 • § 443 • § 443 • §143 783, 808 §§ 285, 325 Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts., c Ann. Sts., c. Ann. Sts., c. Ann. Sts., c. Ann. Sts , c. Ann. Sts., c. Sts. 1887, p. Sts. 1891, p Illinoiis. 24, par. 63, cl 32, par. 28 38, par. 249 120, par. 53 120, par. 54 120, par. 55 120, par. Ill 134, par. 2 §§ , 1.34, par. 3 134, par. 4 134, par. 5 134, par. 6 1.34, par. 7 1.34, par. 8 298 .. . 206 .. . 17 . § 136 • § 143 . §265 • §784 • §784 ■ §784 ■ §784 61,62,63,67 §§ 07, 74 . . § 136 . . § 265 §§ 285, 320 . . § 326 • • § 423 . . §88 §§ 265, 439 TABLE OF CONSTITUTIONS AND STATUTES. XXV Indiana. Ann. St., § 20:;5 Ann. St., § 4;)01 Ann. St., § 4302 Ann. St., § 4303 Ann. St., § 4304 Ann. St., § 4305 Ann. St., § 5404 Ann. St., § 541)7 Ann. St., § 6498 Ann. St., § 5501 Ann. St., § 5511 Ann. St., § 5512 Ann. St., § 5513 Ann. St., § 5517 Ann. St., § 5518 Ann. St., § 5510 Ann. St., § 5520 Ann. St., § 6521 Ann. St., § 5522 Ann. St., § 5523 Ann. St., § 5524 Ann. St., § 5525 Ann. St., § 5526 Ann. St., § 5527 Ann. St., § 6528 Ann. St., § 5529 Ann. St., § 5529 Kev. St., § 6353 Rev. St., § 6354 Elliott's Supi)Iemcn Elliott's Supplenu' Elliott's Suppleme Acts 1885, c. 48 Sts. 1889, c. 215, § 1 Sts. 1891, c. 99, § 69 Sts. 1893, c. 171 . Sts, 1893, c. 171, § 2 . . §205 . . §83 §§ 83, 130 §§ 83, 163 §83 §83 § 143 31,32 §33 § §§G1 07,74 .^85, 327 § 327 § 327 §§ 34 34 § § §34 § •••4 §34 t, § 794 it, § 795 t, § 796 § 34 5 34, 82 § 34 § 34 34, 701 §34 §34 §298 §298 • • § "^5 . . § 809 . . § 190 . . § 190 . . § 190 §§ 285, 327 . . § 785 • • § 785 . . § 785 . . § 809 Ann. Code, § 2109 § 786 Ann. Code, § 2110 § 786 Ann. Code, § 2111 § 786 Ann. Code, § 2112 § 786 Ann. Code, §2113 §786 Ann. Code, § 2114 § 780 Ann. Code, § 2115 § 786 Ann. Code, § 2116 .... §786 Ann. Code, § 5287 § 265 Laws 1890, p. 19, c. 11 . . . . § 143 Laws 1892, c. 22 . . . . §§ 29, 137 Kansas. Gen. Sts., § 555 . . . . §§ 82, 137 Gen. Sts., § 555, el. 22 . , §§ 82, 83 Gen. Sts., § 555, d. 23 . . . . § 163 Gen. Sts., § 1159 § 34 Gen. Sts., § 1100 ... . §§ 34, 82 Gen. Sts., § 1383 .... §§61, 67 Gen. Sts., § 1384 . . §§ 62, 63, 67, 75 Gen. Sts., § 1385 § 174 Gen. Sts., § 1387 § 137 Gen. Sts., § 1388 § 265 Gen. Sts., § 1389 § 31 Gen. Sts., § 1397 § 75 Kentucky. Const., § 163 .... §§ 82, 83, 137 Const., § 199 . §§61, 82, 137, 285, 299 Gen. Sts., p. 431, § 9 .... § 265 lovra. Ann. Code, § 639 § 195 Ann. Code, § 645 § 195 Ann. Code, § 646 § 195 Ann. Code, § 725 . • • §§ 82, 83, 137 Ann. Code, § 896 . . . . §§ 82, 137 Ann. Code, § 1287 § 786 Ann. Code, § 2103 . §§ 01, 03, 67, 82 Ann. Code, § 2104 § 61 Ann. Code, § 2105 . . §§ 67, 74, 82 Ann. Code, § 2106 . . . §§ 285, 328 Ann. Code, § 2107 § 328 Ann. Code, § 2108 § 328 Gen. Sts., p. 431, § 10 Sts., §§ 4077, 4091 . Sts., § 4077 .... Aets 1889, c. 25 . . Acts 1889, c. 717, § 10 Acts 1889, c. 717, § 11 . § 423 §§ 787, 810 . §815 . § 265 • §787 . §810 Louisiana. Rev. St., § 921 § .329 Rev. St., § 922 § 330 Rev. St., § 923 § 330 Kev. St., § 090 .... §§ 61, 63 Acts 1880, No. 124 . §§ 61, 62, 63, 67, 75, 82, 138, 174 Acts 1882, No. 42 § 441 Maine. Rev. Sts., 0. 6, § 48 § 788 Rev. Sts., c. 6, §'40 § 788 Rev. Sts., c. 6, § 60 § 788 Rev. Sts., c. 6, § 51 § 788 Rev. Sts., c. 6, § 52 § 810 XXVI TABLE OF CONSTITUTIONS AND STATUTES. Rev. Rev. Rev. Rev. Rev. Acts Acts Acts Acts Acts Acts Acts Sts., c. Sts., c. Sts., c. Sts., c. Sts., c. 1885, c 1885, c 1885, c. 1885, c, 1885, c, 1885, c. 1885, c. 6, § 53 6, §54 53. §1 53, § 2 123, § 9 ,378 . .378, 378, 378, 378, 378, §§ 2 4 7 9 10 378, § 13 . . § 810 . . §810 331, 423, 436 . . § 331 §§ 68, 82, 83 §§ 61, 138 [261 §89 1300 i 205 §62 Maryland. Pub. Gen. Laws, Art. 23, § 14 §§ 31, 32 Pub. Gen. Laws, Art. 23, § 24 §§ .34, 35 Pub. Gen. Laws. Art. 23, § 24, cl. 11 §31 Pub. Gen. Laws, Art. 23, § 24, el.'222 §31 Pub. Gen. Laws, Art. 23, § .30 . § 35 Pub. Gen. Laws, Art. 23, § 111 . § 1.38 Pub. Gen. Laws, Art. 23, § 224 §§ 61, 64 Pub. Gen. Laws, Art. 23, § 228 §§285, 332 . § 265 . § 210 • § 265 • § 436 Pub. Gen. Laws, Art. 23, § 229 Pub. Gen. Laws, Art. 2.3, § 231 Pul). Gen. Laws, Art. 27, § 251 Pub. Gen. Laws, Art. 27, § 252 Sts. 1886, c. 161 ... §§ 75, 82, 83 Sts. 1886, c. 161, § 2 § 67 Laws 1890, c. 245 § 788 Laws 1890, c. 559, § 1 §§ 788, 810, 815 Laws 1892, c. 200 § 164 Laws 1892, c. .387 . . . §§ 301, 319 Massachusetts. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. Pub. Sts., c. 13, § .38 . 13, § 39 13, § 40 . 13, § 41 . 13, § 42 . 13, § 46 . 27, § 46 . ii7, '§ 47 27, § 48 28, §4 . 109 . . 109, §2' 109, § 3 . 109, § 10 109, § 11 § 789 §789 § 789 §789 §789 § 789 § ^05 63. 241 §241 § 241 §§ 68, 82 §§ 61, 64 . . § 138 §§ 285, 333 §§ 285, 333 §§1 Pub. Pub. Pub. Pub. Pub. Pub. Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Acts Sts., c. Sts., c. Sts., c. Sts., c. Sts., c. Sts., c. 1883, c 1884, c 1884, c 1884, c 1885, c 1885, c, 1885, c 1885, c 1885, c, 1885, c, 1885, c. 1886, c, 1887, c 1889, c, 1889, c 1890, c 1890, c 1891, c. 1892, c 1893, c 1893, c 1894, c 1894, c 1894, c, 1894, c. 1894, c. 1894, c. 1894, c 1894, c 1894, c. 1894, c, 1895, c. 1895, c, 109, § 15 109, § 16 109, § 17 109, § 18 109, § 19 113, § 7 . . 221 . . . 302, § 1 . 302, § 2 . 306 . . . 267 . . 267, § 1 , 267, § 2 • 267, § 3 , 380, § 1 , 380, § 2 380, § 3 , 270 . . . 385, § 4 398 . . . 434 . . . 404, § 1 • 404, § 2 370 . ,259 . , 274 . .454 . . 182 . . 316 . 432 . 448 . 454, § 1 454, § 2 . 454, § 5 454, § 6 454, § 9 533 . . 228 . , 330 . . Michigan. How. Ann. Sts., § 3548 , How. Ann. Sts., § 3686 How. Ann. Sts., § .3688 . How. Ann. Sts., § 3689 . How. Ann. Sts., § .3690 , How. Ann. Sts., § .3693 . How. Ann. Sts., § 3694 . How. Ann. Sts., § 3697 . How. Ann. Sts., § 3698 . How. Ann. Sts., § 3699 . §§ • §96 . §265 . § 262 . § 262 . §262 . §143 §§ 83, 138 . §242 . §242 §§ 68, 82 . §811 . § .302 . § 302 . § 302 . § 3.33 33, 563 . §333 • §811 • § 138 Oo, loo §§ 82, 1.38 §243 §243 §193 §193 §198 § 193 § 193 §711 §193 §193 §164 § 164 § 101 § 164 § 164 § 103 §243 §711 ... § 143 §§ 61, 62, 63, 67, 210 . § 790 . § 790 . § 265 §§31,32 • § 33 §§61,64,67, 163 • • §§ 67, 76 ... § 265 TABLE OP CONSTITUTIONS AND STATUTES. XXVU ri8f ribi How. Ann. Sts., § 3702 . How. Ann. Sts., § 37U8 . How. Ann. Sts., § 3709 . How. Ann. Sts., § 3711 . How. Ann. Sts., § 3712 . How. Ann. Sts., § 3714 . How. Ann. Sts., § 3715 . How. Ann. Sts., § 371G . How. Ann. Sts., § 3717 . How. Ann. Sts., § 3718a How. Ann. Sts., § 3718b How. Ann. Sts., § 3977 . How. Ann. Sts., § 4182 . How. Ann. Sts., § 4183 . How. Ann. Sts., § 4184 . How. Ann. Sts., § 4185 . How. Ann. Sts., § 4191 . How. Ann. Sts., § 421Ga How. Ann. Sts., Supp. 1883-1890, § 371bd . . How. Ann. Sts., Supp. § 37 How. Ann. Sts., Supp. § 37 Acts 1891, No. G7 . . Acts 1891,No. 186, § 1 Actsl891,No. 186, § 2 Acts 1891, No. 186, § 3 Acts 1893, No. 113 . Acts 1893, No. 139, § 1 Acts 1893, .No. 171 . Acts 1893, No. 195 . Acts 1893, No. 195, § 1 Acts 1893, No. 195, § 2 Minnesota. Gen. Sts., 1894, § 2636 . Gen. Sts., 1894, § 2637 Gen. Sts., 1894, § 2628 Gen. Sts., 1894, § 2039 Gen. Sts., 1894, § 2640 Gen. Sts., 1894, § 2641 Gen. Sts., 1894, § 6780 Gen. Sts., 1894, § 6782 Gen. Sts., 1894, § 6783 Laws 1891, c. 8 . . Laws 1893, c. 63, § 1 . Laws 1893, c. 63, § 2 Laws 1893, c. 63, § 3 . Sts. of Minn., c. 107, §790 §436 § 790 §76 § 76 §790 §790 §790 § 790 34,811 §34 §210 §35 §35 §35 §35 §138 §91 §4 §§ §82 §265 § 303 §84 § 195 §195 § H'5 §439 § 195 § 228 §285 §334 §334 §335 § 335 §335 § 335 § 335 61, 82 § 265 §430 §436 § 791 441 Mississippi. Ann. Code, § 854 . . §§ 61, 62, 63, 67 Ann. Code, § 855 § 139 Ann. Code, § 856 § 67 Ann. Ann. Ann. Ann. Ann. Ann. Ann. Ann. Ann. Laws Code, § Code, § Code, § Code, § Code, § Code, § Code, § Code, § Code, § 1892, p. 857 . 858 . 1300 1301 2:;50 2933 31)14 4291 4326 258 • • • S " . . . § 265 ... § 430 • . • §441 §§ 83, 139, 168 ... § 195 ... § 319 §§ 285, 295, 336 . §§791,812 Missouri Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Rev. Laws Sts., 8 Sts., Sts., Sts., Sts., S 27 a6 §2721 §2722 §27 Sts., § 27 § 2723 25 28 Sts., § 2729 Sts., § 2730 Sts., § 2731 Sts., § 2734 Sts., § 2735 Sts., § 2736 Sts., § 2737 Sts., § 2738 Sts., § 2739 Sts., § 2740 §2741 Sts. Sts. Sts. Sts. Sts. § 336 §§31,32,33,34 61,82, 139,163 §§62,63,67 . . . § 175 § 285, 295, 337 §423 § 337 §1.39 §265 § 77 (1879) § 6901 (1879) § 6902 (1879) § 6903 (1879) § 6904 Sts., § 8298 . . . Sts., § 8300 . . . 1887, p. 239 . . . 77 77 63, 77 77 77 §62 §792 §792 §792 §792 §143 §143 § 792 Montana. Const., Art. 15, § 12 . . §143 Nebraska. Comp. St., Const., p. 37, § 2 . Comp. St., c. 12a, § 950 . . Comp. St., c. 14, Art. 1, § 138 Comp. St., c. 14, Art. 1, § 139 Comp. St., c. 14, Art. 1, § 140 Comp. St., c. 14, Art. 1, Comp. St., c. 72, Art. 7, Comp. St., c. 89a, § 2 , Comp. St., c. 89a, § 5 Comp. St., c. 89a, § 6 Comp. St., c. 89a, § 7 §12 §143 §319 §195 §195 §195 • § 195 • § l--^^ . §31 285, 338 . § 338 . §319 XXVlll TABLE OF CONSTITUTIONS AND STATUTES. Comp. St., c. 89a, § 8 . . . . § 319 Comp. St., c. 89a, § 9 . . . . § 285 Comp. St., c. 89a, § 11 . . §§ 285, 338 Comp. St., c. 89a, § 12 . . . . § 338 Comp. St., c. 89a, § U . . §§ 61, 82 Comp. St., c. 77, Art. 1, § 39 . . § 792 Nevada. Gen. St., § 916 §§ 31, 33 Gen. St., § 917 §§ 61, 67 Gen. St., §919 Gen. St., § 920 Gen. St., § 921 Gen St., § 922 Gen. St., § 923 Gen. St., § 925 Gen. St., § 927 Gen. St., § 929 New Jersey 339 § 63, 67, 78 §§ 67, 78 . . § 486 . . § 423 Rev., Rev., Kev., Rev., Rev., Rev., § 339 § 439 § 265 Gen. St., § 930 §265 Gen. St., § 931 § 441 Gen. St., § 932 § 693 Gen. St., § 933 §§ 693, 699 Gen. St., § 934 §§ 694, 699 Gen. St., § 935 § 695 Gen. St., § 936 §§ 695, 699 Gen. St., § 937 § 699 Gen. St., § 938 § 699 Gen. St., § 939 § 696 Gen. St., § 940 § 700 Gen. St., § 941 § 339 New Hampshire. Pub. St., c. 55, § 6 § 792 Pub. St., c. 64, § 3 § 792 Pub. St., c. 64, § 4 § 792 Pub. St., c. 64, § 5 § 792 Pub. St., c. 64, § 6 § 792 Pub. St., c. 64, § 7 § 792 Pub. St., c. 64, § 8 § 792 Pub. St., c. 64, § 9 § 792 Pub. St., c. 64, § 10 § 792 Pub. St., c. 64, § 11 § 792 Pub. St., c. 64, § 12 § 792 247, 1125, § 1125, § 5 §115 4 Pub. St., c. Pub. St., c. Pub. St., c Pub. St., c Pub. St., c Pub. St., c. 81 . . 81, §1 81, §2 81, §4 81, §5 81, §13 1174, § 1 1175, § 7 1175, § 8 Rev., p. 1176, § 12 . Rev., p. 1175, § 14 . Rev., Supp., p. 364, § 8 Rev., Supp., p. 369, § 30 Rev., Supp., p. 742, § 1180 Rev., Supp., p. 1022, § 1 Rev., Supp., p. 1022, § 2 Rev., Supp., p. 1023, § 3 Rev., Supp., p. 1023, § 4 Laws 1887, p. 119, c. 87 Laws 1888, p. 548, c. 337 Laws 1889, c. 208 . . . Laws 1890, p. 489, c. 298 Laws 1892, c. 48 . Laws 1892, c. 76 . Laws 1894, c. 7 . Laws 1894, c. 48, § 1 Laws 1894, c. 48, § 2 . . §§68,82,83 . . . §§61,103 § 139 §63 § 210 §§285,295,319,339 §31 *§§ §265 § 319 §793 32,33 § 265 61, 68 §436 § 442 §143 §140 §83 §§ 82, 140 §§ 68, 93 . . § 163 . . §93 §§ 68, 140 §§ 68, 140 . . § 816 . . §68 . • § 164 . . § 793 . . § 164 . . § 340 . . § 340 St. New York. (BirdseyeEd.)p.678, 1 Rev. § 28 1 Rev. St., (BirdseyeEd.) p. 821, § 15 1 Rev. St., (Birdseye Ed ) p. 968, §1 1 Rev. St., (Birdseye Ed.) p. 969, §3 1 Kev. St., (Birdseye Ed.) p. 969, §4 St., (Birdseye Ed.) p. 969, Pub. St., c. 81, § 14 § 263 Pub. St., c. 81, § 15 . . .§§263,265 Pub. St., c. 81, § 16 § 204 Pub. St., c. 81, § 17 § 92 St., (BirdseyeEd.) p. 969, St, (Birdseye Ed.) p. 969, 1 Rev §T 1 Rev, §8 1 Rev §9 1 Rev. St., (Birdseye Ed.) p. 970, § 10 1 Rev. St., (BirdseyeEd.) p. 971, § 14 1 Rev. St., (Birdseye Ed.) p. 972, § 16 2 Rev. St., (Birdseye Ed.) p. 252, § 40 §443 §715 §163 §165 §165 §165 §165 §165 §165 §165 §165 §140 TABLE OF CONSTITUTIONS AND STATUTES. XXIX 3 Rev. St., (Birdseye Ed.) p. 2492, § 321 § 140 3 Kev. St., (BirdseyeEd.) p. 2492, § :]23 § 143 3 Kev. St., (BirdseyeEd.) p. 3013, § 338 § 794 3 Rev. St., (Birdseye Ed.) p. 3020, § 370 § 794 3 Rev. St., (Birdseye Ed.) p. 3020, § 371 § 794 3 Kev. St., (Birdseye Ed.) p. 3020, § 372 § 794 3 Kev. St., ( Birdseye Ed.) p. 3020, § 373 § 794 3 Rev. St., (Birdseye Ed.) p. 3020, § 374 § 794 3 Rev. St., (BirdseyeEd.) p. 3031, § 1 §§ 31, 436 3 Kev. St., (BirdseyeEd.) p. 3032, § 2 § 430 3 Kev. St., ( Birdseye Ed. ) p. 3032, §5 §64 3 Kev. St., (Birdseye Ed.) p. 3034, § 14 § 63 3 Rev. St., (Birdseye Ed.) p. 3035, § 17 § 442 3 Kev. St., (BirdseyeEd.) p. 3036, § 26 § 94 Penal Code, § 639 § 265 Acts li>53,-c. 471 § 846 Acts 1881. c. 361 § 846 Laws 1888, c. 489 § 717 Laws 1890, c. 566, Art. 6, § 60 . §§ 35, 319 Laws 1890, c. 566, Art. 6, § 61 . § 319 Laws 1890, c. 560, Art. 0, § 62 . § 319 Laws 1890, c. 566, Art. 0, § 63 . § 319 Laws 1890, c. 566, Art. 6, § 64 . § 319 Laws 1890, c. 566, Art. 6, § 65 . § 319 Laws 1890, c. 566, Art. 6, § 66 . § 319 Laws 1890, c. 566, Art. 6, g 67 . § 319 Laws 1890, c. 506, Art. 6, § 68 . § 319 Laws 1890, c. 566, Art. 8, § 100 . §§ 31, 32, 33, 34 Laws 1890, c. 566, Art. 8, § 102 . §§ 61, 63, 67, 78, 82 Laws 181 c. 566, Art. 103 §§ 285, 295, 341 North Carolina. Code, § 1118 § 265 Code, § 2007 . . . . §§ 61, 62, 67 Code, § 2008 §§ 65, 67 Code, § 2009 ....§§ 63, 67. 79 Code, § 2010 §§ 67, 79 Laws 1889, c. 41, § 1 . . . . §436 Laws 1889, c. 255 § 442 Priv. Laws 1889, c. 35, § 2 . §§ 83, 140 Laws 1891, c. 323, § 40 . . . . § 794 Ohio. Const., Art. 12, § 2 § 845 Rev. St., (Sni. & Ben.) § 2501 . § 143 Kev. St., (Sm. & Ben.) § 3438 Kev. St., (Sill. & Ben.) § 3455 Kev. St., (Sm. & Ben.) § 3456 Rev. St., (Sm. & Ben.) § 3457 Rev. St., (Sm. & Ben.) § 3458 Rev. St., (Sm. & Ben.) § 3459 Rev. St., (Sm. & Ben.) § 3460 Rev. St., (Sm. & Ben.) § 3461 Rev. St, (Sm. & Ben.) § 3462 Rev. St., (Sm. & Ben.) § 3465 Rev. St., (Sm. & Ben.) § 3466 Kev. St., (Sm. & Ben.) § 3467 Kev. St., (Sm. & Ben.) § 3467a Rev. St., (Sm. & Ben.) § 3468 . §143 • §175 . §§ 03. 67,79 • §§ G3, 67, 79 • §§ 62, 67,79 . §§ 62, 67,79 • §§ 67, 79 • §§ 07, 79, 140 §§ 285. 295, 342 . § 342 . § 436 . §423 §265 §§62, 67, 79 §§ 62. 67, 79 Rev. St., (Sm. & Ben.) § 3469 Rev. St., (Sm. & Bon.) § 3471 §§ 295, 342 Rev. St., (Sm. & Ben.) § 8035, cl. 227 § 61, 79 Rev. St., (Sm. & Ben.) § 8035 t cl. 228 • . §67 Rev. St., (Sm. & Ben.) § 8035, cl. 233 §§ 140, 244 Laws 1890, p. 61, § 1 . . § 196 Laws 1890, p. 61, § 2 . . §196 Laws 1890, p. 61, § 3 . . §196 Laws 1890, p. 61, § 4 . . §196 Laws 1890, p. 255, § 3 . . §196 Laws 1890, p. 255, § 5 . . §196 Laws 1890, p. 255, § 6 . . §196 Laws 1890, p. 255, § 7 . . §196 Laws 1890, p. 271. §§1,7. §196 Laws 1890, p. 373, § 1 ■ • §196 Laws 1891, p. 296, § 140 . §163 XXX TABLE OF CONSTITUTIONS AND STATUTES. Laws Laws Laws Laws Liiws Laws Laws Laws Laws Laws Laws Laws 1891, p. 344, § 1892, p 1892, p. 1892, p 1892 1892, 1892, 1893, 1893, 1893, 1893, 1894, . 184, § 1 . . . 185, § 1 . . . 185, § 2 . . ). 185, § 3 . . .185, §4 . . .185, §5 . . .220,§1 . . .220, §2 . . . 330 . . . . 346, s 205 §1 . §§ 190, 443 §190 §190 § 196 § 196 § 196 § 1'.'6 §772 §772 §795 . . §§ 265, 439 §§ 140, 163, 165 Hill's Annot. Hill's Annot. Hill's Annot. Hill's Annot. Hill's Annot. Hill's Annot. Hill's Annot. Oregon. Laws, § 2000 Laws, § 2001 Laws, § 2002 Laws, § 2003 Laws, § 2007 Laws, § 2009 Laws, § 4160 . HiU's Annot. Laws, § 4161 Hill's Hill's Hill's Hill's Hill's Hill's Hill's Hill's Hill's Hill's Hill's Hill's Annot. Annot. Annot. Annot. Annot, Annot. Annot. Annot. Annot. Annot. Annot. Annot. Laws, § 4162 Laws, § 4161 Laws, g 4167 Laws, § 4168 Laws, § 4169 Laws, § 4170 Laws, § 4171 Laws, § 4172 Laws, § 4173 Laws, § 4174 Laws, § 4177 Laws § 6163 . . §343 . § 265 . § 436 ■ § 423 . §439 . §700 §§01,63, 67,80 §§ 61, 65, 80 §§ 67, 80 §§ 67, 80 . . § 442 . . § 693 §§ 693, 699 §§ 694, 699 . . § 695 §§ 695, 699 . . § 699 §§ 696, 699 . . § 697 §§ 67, 80 Pennsylvania. Br. Pu. Dij,'., p. 1628, § 4 . §§ 82, 83 Br. Pu. Dig., p. 1628, § 5 . . . § 95 Br. Pu. Dig., p. 1628, § 6 . . . § 61 Br. Pu. Dig., p. 162.S, §7 . . . § 68 Br. Pu. Dig., p. 1629, § 10 . . . § 319 Br. Pu. Dig., p. 1629, § 11 §§ 285, 344 Br. Pu. Dig., 12th Ed., p. 2001, § 15 § 436 Br. Pu. Dig., 12th Ed., p. 2002, § 16 § 437 Br. Pu. Dig., 12th Ed., p. 2002, § 17 § 442 Br. Pu. Dig., 12th Ed., p. 2003, §1 §31 Br. Pu. Dig., 12th Ed., p. 2003, § 3 § 33 Br.Pu.Dig., Supp..p.2321,§398 § 196 Br. Pu. Dig., Supp., p. 2406 §§ 82, 140 Br. Pu. Dig., 12th Ed., Crimes, p. 521, par. 289 . . . Laws 1889, No. 153, § 2 Laws 1889, p. 217, § 15 . Laws 1889, No. 332, § 23 Laws 1891, No. 65, § 1 . Laws 1891, No. 65, § 2 . Laws 1891, No. 168 . . § 2i;5 §140 § 143 § 796 §196 §196 §§ 68, 82, 210 Rhode Island. Pub, Pub Pub Pub. Pub Sts., Sts., Sts., Sts., Sts., Pub. Sts., Pub. Sts. 27, § 10 . 38, § 20 . 200, § 2 . 242, § 30 242, § 39 242, § 48 242, § 49 §796 § 141 §442 §265 §436 §§ 68,82 §443 §96 Laws 1886, c. 561 South Carolina. Gen. Sts., § 179 § 796 Gen. Sts., § 189 § 796 Gen. Sts., § 2240 § 442 Gen. Sts., § 2524 § 265 Tennessee. Code, § 709 § 797 Code, § 710 § 797 Code, § 711 §797 Code, §1535 .... §§01,63,67 Code, § 1536 §§ 61, 80 Code, § 1537 § 80 Code, §1538 §§67,80 Code, § 1539 § 345 Code, § 1540 § 345 Code, §1541 §§345,436 Code, § 1542 § 345 Code, §1544 §§265,439 Code, § 1787 §§34, 35 Code, § 1921 § 143 Code, §1927 §§31,32,33 Code, § 1928 ....§§ 61, 67, 80 Code, § 1929 § 285 Code, Supp. (Shannon) p. 134, §1 . . . . §§61,62,63,67,80,82 Code, Supp. (Shannon) p. 134, § 2 §§ 67, 80 Code, Supp. (Shannon) p. 134, § 3 §§ 67, 80 TABLE OF CONSTITUTIONS AND STATUTES. XXXI Code, Supp. (Sliannon) p. 134. § 4 § G7 Code, Supp. (Shannon) p. 135, § 9 § 2C5 Code-, Rupp. (Shannon) p. 130, § 1 § 206 Code, Supp. (Shannon) p. 130, § 2 § 265 Code, Supp. (Shannon) p. 136, § 3 § 205 Code, Supp. (Shannon) p. 136, §U §304 Acts 1885, c. 60, § 4 § 175 Acts 1893, c. 89, § 4 . . . §§ 797, 812 Texas. Const., Art. 10, § 7 § 143 Sayles' Annot. St., Art. 622 . . § 01 Sayles' Annot. St., Art. 023 §§ 03, 07, 80 Sayles' Annot. St., Art. 024 . . § 175 Sayles' Annot. St., Art. 620 . . § 141 Sayles' Annot. St., Art. 4005. . § 798 Sayles' Annot. St., Art. 4603, p. 508 § 813 Sayles' Annot. St., Supp., Art. 4605, p. 806 § 813 Crim. Code, § 077 § 205 Rev. St., Art. 3014-0 . . . . § 442 Kev. St., Art. 4055 § 820 Tel. Co.'s, p. 508 § 798 Rev. Rev. Rev. Rev. Rev. Rev. Laws, Laws, Laws, Laws, Laws, Laws, Rev. Laws, Rev. Laws, Rev. Laws, Rev. Laws, Rev. Laws, Rev. Laws, Rev. Laws, Rev. Laws, Laws 1882, Laws 1884, Laws 1884, Laws 1884, Laws 1888, Laws 1888, Vermont. § 3633 § 3635 § 3038 § 3089 § 3040 § 3041 § 3045 § 3640 § .3047 §3648 §3657 § 3058 § 3(500 § 3663 No. 74 No. 23 No. 47 No. 114 No. 32 No. 124 §§61,68 • §141 §§ 02, 07 §02 §97 §205 §141 §141 §141 §141 §319 §319 §285 §798 §§ 82, 141 82, 141, 165 §§ 82, 141 . . §82 §§01,141,210 . . . § 305 Laws 1800, No. 3, § 20 Laws 1890, No. 3, § 21 Laws 1890, No. 44, § 1 Laws 1800, No. 44, § 3 Laws 1892, No. 15 . Laws 1892, No. 73 . Laws 1894, No. 87 . Virginia. Code, § 1287 §§ 01, 62, 07, 81, 82, 142 .§ § 798, 813 • § S 798, 813 ■ § 245 . § 245 . §798 . § 305 . §97 Code, § 1288 Code, § 1289 Code, § 1290 Code, § 1291 . Code, § 1292 Code, § 3140 . Acts 1889-90, c. Acts 1889-90, c. 244, 244. §§ 03, 65, 07, 81 . §§07,81,175 . . §§07,81 §§ 285, 295, .340 . .§§295,340 . . . . § 442 24 . . . § 799 25 . Acts 1889-90, c. 244, p. 197 §799 §799 Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Hill's Sts. Washington. & Codes, § 520 . & Codes & Codes & Codes & Codes & Codes & Codes & Codes & Codes & Codes & Codes & Codes & CodeS; & Codes & Codes & Codes & Codes Hill's Hill's Hill's Hill's Hill's Penal Penal Penal Penal Penal Penal Penal Sts. & Sts. & Sts. & Sts. & Sts. & Code, Code, Code, Code, Code, Code, Code, Codes Codes Codes Codes Codes, §292 §293 §294 § 295 §290 § 1050 §1547 §1548 § 1540 § 1550 § 1551 § 1552 § 1553 § 1554 § 15-55 § 1550 § 1557 , § 1558 1500 1501 1-502 1564 1366 1567 1508 298 . . § 143 . . §800 §§07,81,82 §§03,07,81 - §§07,81 §§ 285, 295 . . § 347 . . § 093 §§ 693, 099 §§ 094, 699 . . § 095 §§ 695, 699 . . § 699 . . § 099 . . § 096 . . § 097 §§ 01, 07, 82, 142 §§ 265, 274 . §347 . ^ 274 . §442 . § 205 - § 205 . §205 . §205 . § 205 - § 205 - § 205 . §265 xxxu TABLE OF CONSTITUTIONS AND STATUTES. "West Virginia. Code, c. S4, § 6 § 801 Code, Code, Code, Code, Code, Code, Code, Code, Code, Appendix, p. 1059, § 1 §§ 82, U2 34, § 34, § 34, § 34, § 34, § 34, § §801 8 § 801 9 11 13 14 §801 §801 §801 §801 116, § 2 § 442 145, § 26a § 265 "Wisconsin. Code, § 4557 San. & Berr. Ann. St., § 1038, cl. 15 San. & Berr. Ann. St., § 1040a San. & Berr. Ann. St., § 1216a San. & Berr. Ann. St., § 1217 San. & Berr. Ann. St., § 1218 San. & Berr. Ann. St., § 1222a San. & Berr. Ann. St., § 1770b San. & lierr. Ann. St., § 1778 Sau. & Berr. Ann. St., § 2525 §436 §802 § 802 §802 § 802 § 802 §814 §348 § 61 §442 San. & Berr. Ann. St., § 3329 . § 276 San. & Berr. Ann. St., § 4559 . § 265 Laws 1889, c. 375, § 1 . . §§ 220, 246 Laws 1889, c. 375, § 2 . . . . § 246 Laws 1891, c. 106 § 814 Laws 1893, c. 236 § 306 Wyoming. Rev. St., § 548 . . Laws 1890-91, c. 99 §§ 67, 81 . . § 803 U.S U.S. U.S. U.S U.S. U.S, U.S, U.S. U.S U.S Federal Statutes. Const. Art, 1,§ 8 . §§ 11,41, 51 , Const. Art., 1, § 10 . . . § 178 R. S., § 3964 § 46 , R. S., § 5263 §§ 11, 39, 40, 46, 124, 166, 169, 170, 223, 779, 818, 824, 834 R. S., § 5264 R. S., § 5265 R. S., § 5266 R. S., § 5267 R. vS., § 5268 R. S., § 5209 §§ 39, 40, 824 . §§ 39, 40, 824 . §§ 39, 40, 824 . . §§ 39, 824 §§39,40,46,824 . . . . §39 TABLE OF CASES CITED. A. SECTioy Abeles v. W. U. Tel. Co. (37 Mo. 554) 574, 578, 588 Abraham v. (2:} Fed. Rep. 315) 377, 38.3, 406, 513, 530 Acliesoii V. (00 Cal. 641) 578 Adams, Lincoln St. Ry. Co. v. (60 N. W. Rep. 83) 205, 207 V. Louisville, N. O. & T. Ry. Co. (13 So. Rep. 932) .... 817 , Postal Tel. -Cable Co. V. (155 U. S. 688) 837,838 , Postal Tel.-Cable Co. v. (71 Miss. 555) 837 . \V. U. Tel. Co. V. (7o Tex 531) 456, 457, 657, 059 , \\. U. Tel. Co. V. (87 Ind. 598) 4b2, 488, 514 Ager V. Penin. & Orient. St. Nav. Co. (L. S. 26 Cli. Div. 037) . . 700 Ahern v. Oregon Telep. & Teleg. Co. (35 Pac. Rep. 549) . . 234, 249 Aikeu V. W. U. T. Co. (5 S. C. 358) . 386, 403, 407, 4.52, 453, 467, 499, 500, 503, 512, 536 r. AV. U. T. Co. (69 la. 31) . 397, 399, 407, 455, 462, 499, 513, 530 Alabama & Vicksburg Ry. Co., Postal Teleg.-Cable Co. v. (68 Miss. 314)" 122 Alabama State Board of Assessment v. \\ . U. Tel. Co. (132 U. S. 472) 12, 41, 53, 776, 823 Albany v. Watervliet Turnpike & Ry. Co. (76 Ilun, 136) .... 248 Alexander v. W. U. Tel. Co. (66 Miss. 161) 625 V. W. U. Tel. Co. (67 Miss. 386) 625 Alleghany City i'. Millville, &c. St. Ry. Co. (159 Pa. St. 411) . . 151 Allen V. Atlantic. &c. Tel. Co (21 Hun (X. Y.) 22) 248 ■ , W. U. Tel. Co. V. (68 Miss. 549) 462, 464 Allentown v. W. U. Tel. Co. (148 Pa. St. 117) 56, 833 Alta Cal. Telegraph Co , Parks v. (13 Cal. 423) . . . . 6. 7. -377, 615 Altu Telegraph Co., California State Telegraph Co. i'. (22 Cal. 3f)8) 158, 169 , Thurn v. (15 Cal. 473) 446 American & European Commercial News Co.. State, Trenton & Xew Brunswick Turnpike Co. v. (43 X. J. L. 381) .... 6. 101, 3-50 American Bell Telephone Co., Commonwealth v. (129 Pa. St. 217). 848, 849 , Dolbearw. (126 U. S. 1) 37 , People (-. (117 N. Y. 241) •. . . 84S, 850 American Dist. Telephone Co., Louisville Transportation Co r. (24 Alb. L. J. 2^3) 314 American Dist. Teleg. Co., Sanford v. (27 X. Y. Suppl. 142) . . 7 c XXXiv TABLE OF CASES CITED. SECTION American Rapid Tel. Co. v. Conn. Teleph. Co. (19 Conn. 352) . 312 r. Hess (125 X. Y. G41 ; oS Ilun, 610) . . . .11,42,-10,101,166 Americau Teleg. Co., Ellis v. (13 Alien, 226) . 6, 7, 377, 380, 383, 386, 406, 463, 461, 465, 466, 495, 498, 504, 505, 506, 510, 512, 518, 522, 604 American Teletr- & Telep. Co., Brunner v. (160 Pa. St. 300) . 234, 237 , Roake e-. (41 N. J. Eq. 35) 13,115 American Teleph. & Teleg. Co., Eels v. (143 N. Y. 133; s. c. 38 N. E. Rep. 202) 110, 117 r. Pearce (71 Md. 535) .... 42, 44, 47, 101, 102, 123, 124, 125 American Union Teleg. Co. v. Daughtery (89 Ala. 191) . . 513, 530, 594, 595, 596, 666, 673 , Daughtery v. (75 Ala. 168) .... 408, 457, 513, 585, 594, 595 V. Harrison (31 N. J. Eq. 627) 156 , :Melcliertr. (11 Fed. Rep. 193) 583 f. Middleton (80 N. Y. 408) 277 . Pliiladelphia v. (Pa.) (31 Atl. Rep. 028) 833 r. \V. U. Tel. Co. (67 Ala. 20) 41, 49 , W. U. Tel. Co. V. (9 Biss. (U. S.) 72) 41, 45, 170 , W. U. Tel. Co. u. (65 Ga. 100) 41,170 Anderson y. W. U. Tel. Co. (84 Tex. 17) 416,456 Andrews, W. U. Tel. Co. i-. (78 Tex. 305) 641 Anheuser Busch Brewing Ass'n v. Hutmacher (29 111. App. 316; 666, 669 Ann Arbor St. Ry. Co., Dean v. (93 Mich. 330) 107 Anon. (3 X. J. L. 162) 437 Arnesen v. Brooklyn City R. R. Co. (9 Misc. Rep. (X. Y) 270) . 742, 744 Arwine, W. U. Tel. Co. v. (3 Tex. Civ. App. 156) 371 Asheville St. Ry. Co., Atkinson v. (113 X. C. 581) 158 V. West Asheville & S. S. St. Ry. Co. (19 S. E. Rep. 097) . . 176 Athens, Sayre & Waverly Elec. St. Ry. v. Say re Borough (156 Pa. St. 23) 203 Atkinson v. Asheville St. Ry. Co. (113 X. C. 581) 1.58 Atlantic Avenue Ry. Co., Comraerford v. (8 Misc. Rep. (X. Y.) 599) 723 , Young r. (31 X.Y. Suppl. 441) 764 Atlantic & Pacific R. R. Co., Mercantile Trust Co. v. (63 Fed. Rep. 513) 45, 170 Atlantic & Pacific States Tel. C, W. U. Tel. Co. c. (5 Xev. 102) . 43 Atlantic & Pacific Tel. Co. i\ Chicago, Rock Island, & Pac. Ry. Co. (0 Biss. 1.58) 110 Atlantic & Pacific Teleg. Co., Schwartz v. (18 Hun (X. Y.) 157 . . 374, 386, 510, 512, 536 ;•. Union Pac. Ry. Co. (1 Fed. Rep. 745) 158 , Ward V. (71 X. Y. 81) 234, 236, 248 — , W. U. Tel. Co. V. (7 Biss. (U. S.) 367 120 V. W. U. Tel. Co. (4 Daly (X. Y.) 527) 287-290, 374 Atlantic, &c. Tel. Co., Allen v. (21 Hun (X. Y.) 22) 248 Atty-Gen. v. Edison Telephone Co. (6 Q. B. Div. 214) . . 4, 13-15 V. Metropolitan Railroad Co. (125 Mass. 515) . . 22, 23, 60, 105 V. United Kingdom Elec. Teleg. Co. (30 Beav. 287). ... 202 V. Walworth Light & Power Co. (1.57 Mass. 80) 180 TABLE OF CASES CITED. XXXV SECTION Atty.-Gen. of Mass. v. W. U. Tel. Co. (Ml U. S. 40) . . . 789, 810 , W U Tel. Co. r. (12.j U. S. 53(0 ■ • 12, 41, 54, 57, 789, 820, 834, 835, 840, 842 r. W. U. Tel. Co. (33 Fed. Hep. 129) 839 Atwell c. Jenkins £40 X. E. Rep. 178) Augu.sta liailway Co. I'. Glover (,92 Ga. 132) .... Austen r. Elec. Const. & Sup. Co. (28 N. Y. Suppl. 81) v. Hudson River Telephone Co. (73 Ilun (N. Y.) 90) r. Westchester Tclep. Co. (8 Misc. Rep. (X. Y.) 11) Austin V. Great Western Ry. Co. (L. R. 2 Q. B. 442) . Austin Rapid Transit Co. v. Cullen (30 S. W. Rep. 578) Avondale, Village of, Newman c. (31 Wkly. L. Bui. 123) Axtell, W. U. Tel. Co. v. (G9 Ind. 199) Ayer v. W. U. Tel. Co. (79 Me. 493) . G87 723, 720 . 858 . 857 . 857 . 459 . 764 . 158 475, 476, 488 376, 877, 406, 407, 513, 530, 531, 604, 022, 686, 687 B. Babcock v. U. S. (3 Dill. 5G7) 437 , U. S. r. (3 Dill. (U. S.) 5GG) 670,671 Badger Luiiil)er Co. v. Marion Water Supply, Elec. Light, & Power Co. (48 Kan. 182) 275, 277 V. (18 Kan. 187) 20, 24 Baker r. Holt (5G Wise. 100) 681 , National Telep. Co. v. (L. 11. 1893, 2 Ch. Div. 186) . 213, 220, 221, 234 Baldwin, Reople's Passenger Ry. Co. v. (37 Leg. Int. 424) ... 159 V. U. -S. Tel. Co. (1 Lansing, 125) 7 V. U. S. Tel. Co. (45 N. Y. 744) .... 377, 380, 446, 452, 579 i: W. U. Tel. Co. (21 S. E. Rep. 212) 619 Baltimore, Catonsville & Ell. II. Pass. Ry. Co., Baltimore & Fred- ericksburg Turnpike Road v. (31 Atl. Rep. 851) Baltimore & Fredericksburg Turnpike Road v. Bait., Catonsv., & Ell. M. Pass. Ry. Co. (31 Atl. Rep. 854) .... Baltimore & Hampden Pass. Ry. Co., Hiss v. (52 Md. 242) Baltimore cS: Ohio Teleg. Co., Bliss v. (30 Mo. App. 103) . , Chesapeake & Potomac Telep. Co. v. (G6 Md. 399) . 121 121 . 23. 105 61G, 618 13, 15, 28. 307-309 , Clausen Brewing Co. v. (2 Am. El. Cas. 210) .... 44, 46, 114 , Deslottes v. (40 La. An. 183) 430, 471 r. Lovejov (48 Ark. 301) . 490 . W. U.Tel. Co. V. (19 Fed. Rep. 660) 41, 45, 170 , V. (22 Fed. Rep. 133) 41. I'^'o . V. (23 Fed. Rep. 12) 41, 170 r. (24 Fed. Rep. 31Q) 41,170 Bank v. Cunninsjham (75 Ga. 366) 584 Bank of California i>. W. U. Tel. Co. (52 Cal. 280) . . . 424, 425 Bank of New Orleans v. W. U. Tel. Co. (27 La. An. 40) ... 624 Bankers' Sc ?*lerchants' Tel. Co., Boston Safe Deposit & Trust Co. r. (30 Fed. Rep. 288) -" 5XXV1 TABLE OF CASES CITED. SECTION Bankers' & ^lerchants' Tel. Co. of Ind. v. Bankers' & Merchants' Tel. Co. of X. Y. (27 Fed. Hep. 53G) 275, 280 Bankers' & 3Ierchants' Tel. Co. of N. Y., Bankers' & Merchants' Tel. Co. of Ind. v. (27 Fed. Rep. 536) 275, 280 Barber v. Saginaw Union St. Ry. (83 :\Iich. 299) 204 Barker, People ex rel. Edison Elec. Illuminating Co. of N. Y. v. (139 N. Y. 55) 859 Barnard, People ex rel. West Side St. Ry. Co. v. (110 N. Y. 552) . 151 , Postal Tel.-Cable Co. r. (37 111. App. 105) 841 Barnett, Board of Trade Teleg. Co. i-. (107 111. 507) . . . 104, 110, 113 Barons v. Brown (25 Kans. 410) 666, 667, 672 Barrett v. W. U. Tel. Co. (42 Mo. App. 542) . . 409, 540, 551, 574, 578 Bartlett v. Tucker (104 Mass. 336) 426 V. W. U. Tel. Co. (62 xMe. 209) 6, 7, 380, 382, 384, 401, 406, 407, 494, 495, 513, 515, 535, 604 Bass, Richie i-. (15 La. An. 668) 670, 671, 688 Bassett v. W. U. Tel. Co. (46 Mo. App. 566) 358, 367, 368 Bates, W. U. Tel. Co. v. (93 Ga. 352) 417, 673 Baxendale, Hadley v. (9 Exch. 341) 566, 567, 568, 578, 579, 592, 595, 596 Baxter v. Dominion Telegraph Co. (37 Up. Can. Q. B. 470) . . . 604 Bay City St Ry. Co., Taylor v. (80 Mich. 77) 102 Beal i: Lowell & Dracut St. Ry. Co. (157 Mass. 444) 727 Beardsley v. ?kIinneapolis St. Ry. Co. (.j4 Minn. 504) . . . 769, 770 Beasley i-. W. U. Tel. Co. (39 Fed. Rep. 181) 371, 400, 401, 401, 412, 413, 497-499, 643, 645 , Savannah T. & I. of H. Ry. v. (21 S. E. Rep. 285) .... 759 Beaupre v. Pacific & Atlantic Teleg. Co. (21 Minn. 155) , . 408, 626 Beaver Lake Lumber Co., Chisholm v. (18 111. App. 131) . . 606, 670 Becker v. W. U. Tel. Co. (11 Neb. 87) . 380, 386, 397-399, 407, 512, 518 Behm v. W. U. Tel. Co. (8 Biss. (U. S) 131.) 409 Bell V. Dominion Teleg. Co. (3 Leg. News 405) 462, 504 Bell Telep. Co. v. Belleville Elec. L. Co. (12 Ont. Rep. 571) ... 224 , Julia B'ld'g. Ass'n i'. (88 Mo. 258; s. c. 13 Mo. App. 477) 116 , Missouri v. (23 Fed. Rep. 539) 18, 307, 311 V. Pennsylvania (7 East. Rep. 672) 307 , State r. "(23 Fed. Rep. 539) 18,307,311 , State ex rel. Amer. Union Tel. Co. v. (36 Oh. St. 296) 307, 308, 310 , State ex rel. Baltimore & Ohio Teleg. Co. v. (23 Fed. Rep. 539) 18 307, 311 , St. Louis V. (-96 Mo. 623) 16, 315 Belleville v. Citizens' St. Ry. Co. (152 111. 171) 160 Belleville Elec. Light Co., Bell Telep. Co. v. (12 Ont. Rep. 571) . 224 Benjamin i'. Holyoke St. Ry. Co. (IGO Mass. 3) . . . . 742, 745, 746 Bennett v. W. U. Tel. Co. (18 N. Y. St. Rep. 777) 518 , W. U. Tel. Co. V. (1 Tex. Civ. App. 558) 409, 411 Benton Harbor v. St. Joseph & B. H. St. Ry. Co. (60 N. W. Rep. 758) „ 149 Berdine, W. U. Tel. Co. v. (2 Tex. Civ. App. 517) .... 641, 663 TABLE "OF CASES CITED. XXXvii SECTION Beringer, W. U. Tel. Co. v. (81 Tex. 38) .... 456, 457, G57, GGO Bierhaus v. W. U. Tel. Co. (8 Iiid. App. 210) . . 402, 416, 612, 015 , W. U. Tel. Co. V. (8 Iiid. App. 5(j;5) 475 . \V. U. Tel. Co. V. (39 N. E. Rep. 881) 402 Bigelow V. West Eud St. Ry. Co. (101 Mass. 393) . . . 722, 720, 738 Birkett v. W. U. Tel. Co. (01 N. W. Rep. 045) . . 510, 512, 518, 525 Biriiey v. N. Y. & VVashiiigtou Printing Tel. Co. (18 Md. 341) 7, 8, 379, 380, 404, 495, 520, 527, 004 Bishop, Iti re (13 Ch. Div. 110) 098 Blakeney v. W. U. Tel. Co. (22 Cent. L. J. 147) 040 Blauce, VV. U. Tel. Co. v. (19 S. E. Rep. 255) 408, 462 Blanchard v. W. U. Tel. Co. (00 N. Y. 510) 273 Blancliard, W. U. Tel. Co. v. (08 Ga. 299) 406, 407, 513, 530, 559, 584, 599, 007, 008 Blashfield v. Empire State Teleg. & Telep. Co. (Sup. 18 N. Y. Siipp. 250) 110, 112 Bliss V. Baltimore & Ohio Tel. Co. (30 Mo. App. 103) . . 616, 018 Block V. Milwaukee St. Ry. Co. (61 N. W. Rep. 1101) .... 222 , Newark Pass. Ry. Co. r. (27 Atl. Rep. 1007) 758 Bloomfield cSc Rochester Natural Gas-Light Co. v. Calkins (02 N. Y. 360) 126 r. Richardson (03 Barb. 437) 126 Board of Equalization, Telep. Co. v. (67 la. 250) ... 13, 16, 847 Board of Public Works, State v. (29 Atl. Rep. 149) 205 Board of Trade, Metropolitan Grain & Stock Exchange v. (15 Fed. Rep. 850) 291,294 , New- York & Chicago Grain & Stock Exchange i\ (19 N. E. Rep. 855) 294 Board of Trade Tel. Co. v. Barnett (107 111. 507) . . . 104, 110, 113 Bodkin i: W. U. Tel. Co. (31 Fed. Rep. 134) 574, 578 Boerth v. West Side R. R. Co. (87 Wis. 26>^) 755 Boom Co. V. Patterson (98 U. S. 406) 99 Boston & Albany R. R. Co., Sullivan v. (156 Mass. 378) . . 256, 707 Boston & Maine R. R. Co., Donovan v. (158 Mass. 450) .... 665 Boston, Com. r. (97 Mass. 555) 154, 201, 202 , Neuert i'. (128 Mass. 330) 254 , Suburban Light & Power Co. v. (153 :^rass. 200) .... 152 Boston, Concord & Montreal R. R. Co., Eaton v. (51 N. H. 504) 103 Boston Elec. Light Co., Hector v. (101 Mass. 558) 256 , Tlling.'^worth v. (101 Mass. 583) 256, 705 Boston (ias-Li^^ht Co.. Gray i\ (114 Mass. 149) 254 Boston Safe Deposit & Trust Co. v. Bankers' & Merchants' Tel. Co. (36 Fed. Rep. 288) 277 Boston, etc. Co., Tillinghastr. (39 S. Car. 484) 689 Bourget r. Cambridge (156 Mass. 391) ....... 248,251 Bowen r. Lake Erie Tel. Co. (1 Am. L. Reg. 685) 377 Bowen, W. U. Tel. Co. v. (84 Tex. 476) 582, 613 Brackett. Walworth v. (98 Mass. 98) 30 Bradbury, Central Union Telep. Co. v. (106 Ind. 1) 317 XXXviii TABLE OF CASES CITED, SECTION Braddock Elec. Rv. Co., Pennsylvania R. R. Co. v. (152 Pa. St. 116) . . : . 230 Braden, City of Crawfordsville v. (130 Ind. 149) 20, 21, 181, 188, 190, 191 Bradley v. W. U. Tel. Co. (17 Fed. Rep. 834) 291, 292 Brashears v. W. U. Tel. Co. (45 Mo. App. 433) 305, 416, 419, 420, 480 Breese v. U. S. Tel. Co. (48 N. Y. 132) . . 7, 377, 380, 497, 499, 518 548, 604 Brett, Wilson r. (11 M. &W. 113) 385 Brickell, Williams v. (37 IMiss. 68'?) 666 Bridge Co. i'. Hoboken (13 X. J. Eq. 81) 153, 176 Bri*'"-s c. Lewiston & Auburn Horse Ry. Co. (79 Me. 363) . . 22, 23, 105, 107, 108 Bright, W. U. Tel. Co. v. (20 S. E. Rep. 146) .... 41, 51, 417 Brightwell, W. U. Tel. Co. v. (21 S. E. Rep. 518) 481 Broesche, W. U. Tel. Co. v. (72 Tex. 654) 456, 639 Brooklyn Central R. R. Co. i-. Brooklyn City R. R. Co. (32 Barb. 358 159 Brooklyn City R. R. Co., Arnesen t'. (9 Misc. Rep. (N. Y.) 270) 742, 744 , Brooklyn Central R. R. Co. v. (32 Barb. 358) 159 , Demond r. (8 .Misc. Rep. (N. Y.) 610) 723 , Fox V. (7 Misc. Rep. (N. Y.) 285) 727, 734 , Gaifuev r. (25 N. Y. buppl. 996) 731 , Keenan r. (8 Misc. Rep. (N. Y.) 601) 764, 765 , Mackie v. (30 N. Y. Suppl. 539) 759 Brqoklvu Heights R. R. Co., Dowd v. (9 Misc. Rep. (X. Y.) 279; 29 X. Y. Suppl. 745) 743, 764, 765 , Jones V. (31 X. Y. Suppl. 445) 743 Brooks V. W. U. Tel. Co. (56 Ark. 224) 475, 480 Broome v. New York & Xew Jersey Telep. Co. (42 X. J. Eq. Ml) 104, 110 ,., , (49 X. J. L. 624) 131, 203 , r. (50 X. J. L. 4.32) 131,203 Brown, Barons v. (25 Kan. 410) 666, 667, 672 Brown, ex/jar^e (72 Mo. 83) '• 4-37,438 , ex parte (7 Mo. App. 484) 437 ;•. Postal Tel.-Cable Co. (Ill X. C. 187) . . 385, 512, 513, 518, 530 V. W. U. Tel. Co. (6 Utah, 210) 409 . W. U. Tel. Co. V. (58 Tex. 170) 632 , W. U. Tel. Co. V. (71 Tex. 723) 658, 660 . W. U. Tel. Co. V. (84 Tex. 54) 540, 558, 625 , W. U. Tel. Co. V. (108 Ind. 538) 487 Browning, Lewis v. (130 Mass. 173) 683 Bruner, W. U. Tel. Co. v. (Tex. Sup.) (19 S. W. Rep.) 149 . . . 435 Brunner v. Am. Teleg. & Telep. Co. (160 Pa. St. 300) . . . 234, 237 Brush Elec. Co. of Cleveland, (Geneva i: (50 Hun (X. Y.) 531) 200, 201 Brush Elec. Light Co., Com. 1-. (145 Pa. St. 147) 8.54 , Com. V. (Pa St.) (22 Atl. Rep. 844) 856 . Kraatz r. (82 Mich. 4.57) 705, 707 , Weiden v. (73 Mich. 208) .......... 705, 709 TABLE OF CASES CITED. XXXIX 8ECTIOJI Bryan, Savannah T. & I. of II. Ry. v. (21 S. E. Rep. 57) ... 759 Bryant, In re, L. R. (4 Ch. Div. ii8) C98 V. Amer. Tel. Co. (1 Daly (N. Y.) 575) G15 y. W. U. Tel. Co. (17 Fed. Rep. 825) 293, 353 Buchanan, W. U. Tel. Co. c. (35 Ind. 429) .3SG, 387, 394, 399, 481, 482. 510, 514 Buck ('. Peoples' St. Rv., Elec. Light & Power Co. (4G iMo. App. 555) . . . . ' 72U, 723, 725, 737, 738, 764, 765 Buckner c. Hart (52 Fed. Rep. 83.5) 146, 157, 184 Buffalo, Ketchum v. (14 X. Y. 3.56) 190 Biilt'ali), R. & P. Rv. Co., DuBois Traction Pass. Ry. Co. v. (149 Pa. St. 1) '. 230 Buffalo, Talcott «. (125 N. Y. 2S0) 190 BuUard, W. U. Tel. Co. v. (65 Vt. 634) 116, 265 Burke, Nebraska National Bank v. (62 N. W. Rep. 452) .... 680 Burlington & Southwestern Ry. Co. W. U. Tel. Co. v. (3 McCr. 130; s. c. 11 Fed. Rep. 1) 41, 45, 170, 171 Burnell v. West Side R. R. Co. (87 Wise. 387) 768 Burnett v. W. U. Tel. Co. (39 Mo. App. 599) . 356, 360, 361, 366, 368, 479, 482, 488 Burrow, W. U. Tel. Co. v. (30 S. W. Rep. 378) 525 Butner v. W. U. Tel. Co. (37 Pac. Rep. 1087) . . 51, 456, 457, 645 Byron v. N. Y. State Printing Teleg. Co. (6 Barb. 39) . . . 234, 266 c. Cable Tramway Co., Omaha Hor.se Ry. Co. v. (30 Fed. Rep. 324) 153, 176 Cahn V. W. U.' Tel. Co. (1 C. C A. 107 ; 48 Fed. Rep. 810) . . 628 V. W. U. Tel. Co. (46 Fed. Rep. 40) 627 Cain V. W. U. Tel. Co. (18 Cin. Wklv. L. Bui. 267) 292 Calhoun r. Atchi.^on (4 W. P. D. Bush. (Ky.) 261) 692 Califurnia State Tel. Co. v. Alta Tek-g. Co. (22 Cal. 398) . 158, 169 Calkins, Bloomfield & Rochester Natural Gas Light Co. v. (62 N. Y. 386) 126 Call Publi.shing Co., W. U. Tel. Co. v. (62 N. W. Rep. 506) . . 291 Cambridge, Bourgetr. (150 Mass. ".91) 248,251 Camden & Atlantic R. R. Co., Delaware & Raritan Canal & Cam- den & Amboy R. R. & Trans. Co. v. (IG N. J. Eq. 321) 153, 176 Camden, G. & W. Ry. Co., West Jersey R. R. Co. v. (29 Atl. Rep. 423) 109, 227 Cameron v. Union Trunk Line (39 Pac. Rep. 12S) 743 Camp r. W. U. Tel. Co. (1 Mete. (Ky.) 104) . . 407, 513, 518, 519, 604 Campbell, People ex rel. Edison Elec. Light Co. v. (138 N. Y. 543) 353 Candee i\ W. U. Tel. Co. (31 Wise. 471) . . 386, 388, 394, 404, 408, 510, 535, 588, 590, 591, 601, G04 Canning v. Williamstown (1 Cush. 452) 633, 656 Cannon v. W. U. Tel. Co. (100 N. C. 300) 588, 625 Cape Mav, etc., R. R. Co. v. Johnson, (35 N. J. Eq. 422) ... 698 Xl TABLE OF CASES CITED. SECTION Carew, W. U. Tel. Co. v. (15 Mich. 525) . . 6, 7, 380, 382, 447, 497, 498, 512, 518, 523 Carnahan v. AV. U. Tel. Co. (89 Ind. 52G) 484 Can- r. West End St. Ky. Co. (163 Mass. 300) 741 Carroll v. W. U. Tel. Co. (160 Mass. 152) 267, 271 , W. U. Tel. Co. V. (84 Ga. 597) 628 Carson t'. Elec. Light & Power Co. (85 la. 44) 281 V. Federal St. & Pleasant Valley Ry. Co. (147 Pa. St. 219) . 23, 755, 756 Carter, W. U. Tel. Co. v. (85 Tex. 580) 657, 600, 663 , V. (2 Tex. Civ. App. 624; 20 S. W. Rep. 834; s. c. 22 S. W. Rep. 961) 660 Cartledge, Tonkinson v. (22 Alb. L. J. 123) 698 Cater I'. Xorthwestern Telep. Exch. Co. (Minn.) (63 N. W. Rep. Ill) 116 Central Dist. & Printing Tel. Co. v. Com. (114 Pa. St. 592) ... 314 , Smith V. (2 Oh. C. C. 259) 110 Central Dist. & Printing Telep. Co., Com. v. (145 Pa. St. 121) 851, 852 Central N. J. Telep. Co., State, Duke v. (53 N. J. L. 341) 13, 16, 17, 18 Central Pass. Ry. Co. v. Chatterson (29 S. W. Rep. 18) 740, 741, 742 Central Pass. Ry. Co., Louisville Bagging Mfg. Co. v. (23 S. W. Rep. 592) 107, 109 Central I'enn. Telep. & Supply Co. v. Wilkesbarre & W. S. St. Ry. Co. (Pa. Com. PI.) (11 Pa. Co. Ct. R. 417) 13, 15, 28, 213, 217, 222 , Martinsburg Bank v. (150 Pa. St. 36) 314 Central Traction Co., Rafferty v. (147 Pa. St. 579) 107 Central Union Tel. Co., New York City & Northern R. R. Co. v. (21 llun (N. Y.) 261) 119 Central Union Telep. Co. v. Bradbury (106 Ind. 1) 317 , Sheffield i-. (:!6 Fed. Rep. 164) 200 V. Sprague Elec. Ry. & Motor Co. (2 Am. El. Cas. 307) . . 213 V. State ex rel. Falley (118 Ind. 194) 317 r. State ear reZ. Hopper (123 Ind. 113) 318 Chaffee v. Telep. & Teleg. Const. Co. (77 J^Iich. 625) 204 Chambersberg Borough, Linn v. (160 Pa. St. 511) . . . .20, 21, 197 Chapman v. W. U. Tel. Co. (88 Ga. 763) 646 V. W. U. Tel. Co. (90 Ky. 265) 456, 643, 644 Charless, Northern Pacific R. R. Co. v. (51 Fed. Rep. 567) ... 444 Charleston, Postal Tel.-Cable Co. v. (153 U. S. 692; s. c. 56 Fed. Rep. 419) 41, 55, 826, 827 , W. U. Tel. Co. «. (56 Fed. Rep. 419) 41,55,826,827 Chase v. \Y. U. Tel. Co. (44 Fed. Rep. 554) 645 Chattanooga Elec. St. Ry. Co., East Tennessee Telephone Co. v. (2 Am. Cas. 323) 213 Chatterson, Central Pass. Ry. Co. v. (29 S. W. Rep. 18) . 740, 741, 742 Chesapeake & Potomac Telep. Co. v. Baltimore & Ohio Teleg. Co. (66 Md. 399) 13, 15, 28, 307-309 Chesapeake & Potomac Telep. Co. v. Mackenzie (74 Md. 36) 104, 110, 114, 117 TABLE OF CASES CITED. xU SECTION Chester Elec. Li^ht & Tower Co., Com. v. (145 Pa. St. 131) 29, 8.01, 854 Chester v. Philadelphia, Reading & P. Tel. Co. (118 Pa. St. 12()j 56, 833 l: State (5 S. \V. Kep. 125) 072 Chicago, Mutual Union Tel. Co. i-. (10 Fed. Rep. 3i)9) .... 203 Chicago & Atchison Bridge Co. v. Pacific Mut. Tel. Co. (30 Kan. 113) 41, 50 , V. (30 Kan. 118) 01 Chicago, Rock Island & Pacific. Ry. Co., Atl. & Pac. Tel. Co. v. (0 Biss. 158) 110 Chishohn v. Beaver Lake Lumber Co. (18 III. App. 131) . . COO, 070 Cincinnati St. Ry. Co. v. Whitcomb (00 Fed. Rep. 915) . . 741, 758. Cincinnati Inclined Plain Ry. Co. v. City & Suburban Tel. Ass'n (48 Oh. St. 390) 213, 218 Cincinnati, New Orleans & Texas P. R. Co. v. Clark (57 Fed. Rep. 132) 444 Citizens' Elec. Light & Power Co., Ramsdell v. (01 N. W. Rep. 275) 277 r. Sands (95\Micli. 551) 147, 149, 150 Citizens' Gas Co., Louisville Gas Co. r. (115 U. S. 083) .... 108 Citizens' Gas Light Co. r. Wakefield (101 Mass. 432) .... 194, 197 Citizens' St. Ry. Co., Belleville r. (152 111. 171) 100 Citizens' St. Ry. Co. v. City of Memphis (53 Fed. Rep. 715) . . . 159 V. City Ry. Co. (50 Fed. Rep. 746) 00, 159, 178 V. Lowe (39 N. E. Rep. 105) 746 , Western Paviug & Supply Co. I'. (128 Ind. 525) 159 City Council of Montgomery v. Montgomery, etc.. Plank Road Co. (31 Ala. 76) 37 City & County of San Francisco v. W. U. Tel. Co. See San Fkax- cisco. City & County of San Francisco, Elec. Imp. Co. r. (45 Fed. Rep. 593) 254 City & Suburban Ry. Co., Green v. (28 Atl. Rep. 626) . . . 107, 184 City & Suburban Tel. Ass'n, Cincinnati Inclined Plane Ry. Co. v. (48 Ohio St. 390) 213, 218 City Elec. St. Ry. Co., Williams v. (41 Fed. Rep. 556) . . . . 1(»7 Cityof AUentowni'. W. U. TehCo. (148Pa. St. 117) . . . .56,833 City of Crawfordsville v. Braden (130 lud. 149) 20, 21, 181, 188, 190, 191 City of Memphis, Citizens' St. Ry. Co. v. (53 Fed. Rep. 715) . . 159 City of Newport v. Newport Light Co. (89 Ky. 454; s. c. 84 Ky. 106) 179 City of Newton, Thompson- Houston Elec. Co. v. (42 Fed. Rep. 723) 20, 21, 191, 192 City of Philadelphia r. Postal Tel. -Cable Co. (67 Hun, 21) . . 56, 833 City of Richmond, The (43 Fed. Rep. 85) 273 City of St. Louis v. AV. U. Tel. Co. (148 U. S. 92 ; 149 U. S. 465 ; 39 Fed. Rep. 59) 41, 50, 830, 831, 832 City Ry. Co., Citizens' St. Ry. Co. i: (56 Fed. Rep. 746) . 60, 159, 178 Clairain r. W. U. Tel. Co. (40 La. An. 178) 230, 206, 268 Clara Killam, The (L. R. 3 Adm. &'Eccl. 101) 274 Clark, Cincinnati, X. O , & Texas P. R. Co. v. (-57 Fed. Rep. 132) . 444 Xlii TABLE OF CASES CITED. SECTION Clark, East River Elec. Light Co. v. (18 N. Y. S. 463) .... 37 Clarke, W. U. Tel. Co. v. (71 Miss. 157) 478 Clausen Brewing Co. r. Bait. kO. Tel. Co. (2 Am. El. Cas. 210) 44, 46, 114 Clay V. W. U. Tel. Co. (81 Ga. 285) 619 Clement r. W. U. Tel. Co. (137 IMass. 463) 386, 392, 408, 450, 496, 510, 512, 518, 604 Clements v. Louisiana Elec. Light Co. (44 La. An. 692) .... 256 Cleveland Telep. Co., Prentiss v. (32 Wkly. Law Bui. 13) ... . 110 Clifton. W. U. Tel. Co. v. (68 Miss. 307) . . . 462, 569, 574, 578, 619 Cobbs, W. U. Tel. Co. i-. (47 Ark. 344) 549 Cocke, W. U. Tel. Co. v. (Tex. Civ. App. ; 22 S. VV. Rep. 1005) . 409 Coffin, W. U. Tel. Co. v. (30 S. \V . Rep. 896) 660 Cohen r. West Chicago St. Ry. Co. (60 Fed. Rep. 698) . . 720, 723 Cohen, W. U. Tel. Co. c. (73'Ga. 522) 401, 404, 406, 515 Cole r. W. U. Tel. Co. (33 Minn. 227) . . 453, 497, 498, 540, 542, 545 Collier Lead Co., Minnesota Oil Co. v. (4 Dill. (U. S.) 431) . .681, 682 Collins, W. U. Tel. Co. v. (45 Kan. 88) 666, 667, 673, 675 Colorado Electric Co. v. Lubbers (11 Col. 505) 705, 706 Columbia, State <;. (Ill Mo. 365) 197 Colver. Griffin r. (10 X. Y. 489) 592, 630 Colwell Lead Co., Metropolitan Telep. & Teleg. Co. v. (50 X. Y. Supr. 488) 112 Commercial Union Teleg. Co. v. New England Telep. & Teleg. Co. ^61 Vt. 241) 307, 308, 310 Kugg V. (66 V^t. 208) 116 Comnierford v. Atlantic Avenue Ry. Co. (8 Misc. Rep. (X. Y.) 599) 723 Com. V. American Bell Telep. Co. (129 Pa. St. 217) . . . 848, 849 V. Boston (97 ]\Iass. 555) 154, 201, 202 v. Brush Elec. Light Co. (Pa. Stat.) (22 Atl. Rep. 844) . . 856 V. Brush Elec. Light Co. (145 Pa. St. 147) .... 29, 851, 854 V. Central D. & P. Telep. Co. fl45 Pa. St. 121) .... 851, 8,52 , Central District & Printing Teleg. Co. v. (114 Pa. St. 592) . 314 I'. Chester Elec. Light & Power Co. (145 Pa. St. 131) 29, 851, 854 V. Edison Elec. Light Co. (157 Pa. St. 529) 851 852, 854 . 29 672, 674 29, 854 13, 16 V. Edison Elec. Light Co. (145 Pa. St. 131) . . 29, 851, •V. Elevated Ry. Co. (161 Pa. St. 409) • 1-. Jeffries (7 Allen, 5 18) V. Northern Elec. Light & Power Co. (145 Pa. St. 105) f. Pennsylvania Telep. Co. (42 Leg. Int. 180) .... V. Smith (92 Ky. 38) . . . . " 41, 55, 836 60 374 V. Temple (14 Gray, 69) V. W. U. Tel. Co. (14 NMdy. Not. Cas. 535) V. Westinghouse El. & ISIfg. Co. (151 Pa. St. 265) . . 851, 855 , W. U. Tel. Co. V. (110 Pa. St. 405) 822 Common Council of City of Grand Rapids, Elec. Ry. Co. of Grand Rapids r. (84 :\Iich. 257) .' . . . 149,151 Coney Island & B. R. R. Co., Peyser v. (30 N. Y. Suppl. 610) . . 733 Coney Island & B. Ry. Co., Prospect Park & Coney Island Ry. Co. V. (39 N. E. Ptep. 17) 185 TABLE OF CASES CITED. xliil SECTION Connecticut Telep. Co., Am. Rapid Tel. Co. v. (49 Coun. 352) . . 312 Conaell v. W. U. Tel. Co. (108 Mo. 409) .... 475, 460, 484, 485 r. W. U. Tel. Co. (110 Mo. 35) 040 Connelly c. Trenton Tas-s. lly. Co. (29 Atl. Rep. 43S) 758 Consolidated Klec. Light Co. v. People's Elec. Light & Gas Co. (94 Ala. 372) 225 Consolidated St. Ry. Co., McGee r. (00 N. W. Rep. 293) . . 753,755 Couwav, ex/rar/e (48 Fed. Rep. 77) 204 Conyei-s /•. Postal Tel.-Cable Co. (19 S. E. Rep. 253; S. C. 92 Ga. 019) 408,440,462 Cook, W. U. Tel. Co. v. (61 Fed. . tep. 624) 390, 399, 406, 407, 512, 513, 514 Cooledge, W. U. Tel. Co. v. (86 Ga. 101) 549 Cooi.er V. St. Paul City Ry. Co. (54 Minn. 379) . . 723, 725, 737, 738 Cooper, W. U. Tel. Co. c. (Tex. Sup., 20 S. W. Rep. 47) . . . . 041 , W. U. Tel. Co. r. (71 Tex. 5U7) 038, 057 Corlin r. West End St. Ry. Co. (154 Mass. 197) 724, 725 Cornell r. Detroit Elec. Ry. Co. (62 Mich. 495) 710, 747 Cornwell, W. U. Tel. Co. v. (2 Colo. App. 491) 615 Cothran r. W. U. Tel. Co. (S3 Ga. 25) 583, 584 County Commissioners, Onset St. Ry. Co. *•. (154 Mass. 400) . 23, 105 Craig, Omaha St. Ry. Co. c (39 Keb. 601) 723 V. Rochester Citv & Brighton R. R. Co. (39 X. Y. 404) . . . 106 Craig St. Ry. Co., Lockhart r. (139 Pa. St. 419) . . 22, 23, 107, 117 Crall, W. U. Tel. Co. v. (39 Kan. 580) 562, 628 , r. (38 Kan. 079) 389, 394, 406, 407, 510, 604 Crank, Dillingham v. (27 S. W. Rep. 93) 233, 248 , Southwestern Teleg. and Teleg. Co. v. (27 S. W. Rep. 38) 233, 248 Crawfordsville v. Hraden (130 Ind. i49) . . 20, 21, 181, 188, 190, 191 Crawaon v. W. U. Tel. Co. (47 Fed. Rep. 544) 645 Creamer r. West End St. Ry. Co. (150 Mass. 320) 722, 724. 726, 738, 758 Cross Town St. Ry. Co., Whiter r. (8 Misc. Rep. (N. Y.) 302) . . 742 Culberson, W. U. Tel. Co. v. (79 Tex. 05) . . . 506, 540, 554, 555 Cullen, Austin Rapid Transit Co. r. (30 S. W. Rep. 578) .... 764 Culver V. Warren (36 Kan. 391) 671 Cumberland Teleg. & Telep. Co. v. United Elec. Ry. Co. (29 S. W. Rep. 104) 107, 213, 220 V. (42 Fed. Rep. 273) 13,15,10,28,213,219 Cunningham, Bank v. (75 Ga. 366) 584 , W. U. Tel. Co. V. (99 Ala. 314) 644, 646, 662, 664 Cutts r. W. U. Tel. Co. (71 Wise. 40) 514 Curvin v. Rochester Ry. Co. (78 Ilun, 535) 106, 128 D Dale, Southwestern Teleg. & Telep. Co. v. (27 S. W. Rep. 1059) 370, 701, 702, 703 Dallas Consolidated Traction Ry. Co. v. RaTidolph (27 S. W. Rep. 925) "35 Xliv TABLE OF CASES CITED. SECTION Dallas Rapid Transit Ry. Co. v. Duulap (26 S. W. Rep. 877) 720, 743 c. Elliott (26 S. W. Kep. 455) 744, 760 Dana v. X. Y. C. & H. R. R. R. Co. (92 N. Y. 639) 444 Daniel v. "W. U. Tel. Co. (61 Tex. 452) 588 Danville St. Car Co., Trowbridge v. (19 S. E. Rep. 780) .... 760 Dauffhtery v. American Union Tel. Co. (75 Ala. 168) 408, 457, 513, 585, ° 594, 595 , Amer. Union Teleg. Co. i-. (89 Ala. 191) . . 513, 530, 594-596, 666, 673 Davidson v. Denver Tramway Co. (35 Pac. Rep. 921) 761 Davis V. Elec. Reporting Co. (19 Wkly. Not. Cas. 567) .... 292 Davis, Little Rock & Ft. Smith Teleg. Co. v. (41 Ark. 79) 377, 380, 383, 408, 486 Davis V. W. U. Tel. Co. (11 Cinn. Sup. Ct. Rep. 100) 485 Dean y. Ann Arbor St. Ry. Co. (93 Mich. 330) 107 Deane v. Roaring Forks Elec. Light & Power Co. (39 Pac. Rep. 346) 269 DeArmond, East Tennessee, Virginia & Georgia R. R. Co. v. (86 Teun. 75) 444 DeJarles, W. U. Tel. Co. v. (27 S. W. Rep. 792) . . . 412, 422, 643 De La Grange v. Southwestern Teleg. Co. (25 La. An. 383) 446, 462, 464, 465, 499, 604 Delaware & Atlantic Teleg. & Telep. Co. v. State (2 C. C. A. 1 ; s. c. 50 Fed. Rep. 677) 7, 18, 307, 311 , State ex rel. Postal Tel.-Cable Co. v. (47 Fed. Rep. 633) 307, 308, 311 Delaware County & Phila. Elec. Ry. Co. v. Philadelphia (164 Pa. St. 457) 232 Delaware & Raritau Canal & Camden & Ambov R. R. & Trans. Co. v. Camden & Atlantic R. R. Co. (16 N. J. Eq. 321) . 153, 176 De Magathias, Doboy & Union Island Tel. Co. v. (25 Fed. Rep. 697) 27, 30, 274 Demond r. Brooklyn City Ry. Co. (8 Misc. Rep. (N. Y.) 610) . . 723 Denver Tramway Co., Davidson tJ. (35 Pac. Rep. 921) 761 De Rutte v. New York, Albany, and Buffalo El. Mag. Tel. Co. (1 Daly (N. Y.) 547) 0, 446, 495, 574 Deslottes v. Baltimore & Ohio Tel. Co. (40 La. An. 183) . . 430, 471 Des Moines Broad Gauge St. Ry. Co., Des Moines St. Ry. Co. v. (73 la. 513) 179 , Teachout v. (75 la. 722) 179 Des Moines City Ry. Co. v. Des Moines (58 N. W. Rep. 906) ... 208 Des Moines, Des Moines City Ry. Co. v. (58 N. W. Rep. 906) . . 208 Des Moines St. Ry. Co. v. Des Moines Broad Gauge St. Ry. Co. (73 la. 513) 179 Detroit?;. Detroit City Ry. Co. (56 Fed. Rep. 872) .37, 107, 146, 159, 161 Detroit City Ry. Co., Detroit v. (56 Fed. Rep. 872) 37, 107, 146, 159, 161 r. Mills (85 Mich. 634) 107, 109 Detroit Elec. Ry. Co., Cornell v. (82 Mich. 495) 740, 747 Detroit Suburban St. Ry. Co., Niemann v. (61 N. W. Rep. 519) (Mich.) 107, 114 TABLE OF CASES CITED. xlv 8ECTJOM Doverson v. Eastern 11. 11. Co. (58 X. II. 129) ....... UUo Dexheimer, New York & New Jersey Telep. Co. i. (11 N. J. Law Joura. 2-lG) -"'^ Dibbin, Hiiiton v. (2 Q. B. G4G) . ^^,5 Dickey v. Maine Tele-. Co. (4G Me. 488 ; s. c. 43 :Me. 492) . 248 Dickson V. neuter's Teleg. Co. (L. K. 2 C. P. Div. G2) 4, 42G, 40u, 4G1 V. (L. R. 3 C. P. Div. 1) 42G, 4G0,4G1 , Submarine Teleg. Co. v. (15 C. B. (n. s.) 758) 274 Dillingham v. Crank (27 S. W. Rep. 93) 233, 248 Direct U. S. Cable Co., Hart j;. (SGN. Y. 633) 431 Doboy & Union Island Tel. Co. v. De Magathias (25 Fed. Rep. 697) 27, 30, 274 Dolan, People ex rel. W. U. Tel. Co. v. (126 N. Y. IGG) . 57, 842, 843 Dolbear v. American Bell Telep. Co. (126 U. S. 1) 37 Dominion Teleg. Co., Baxter r. (37 Up. Can. Q. B. 470) ... 604 , Bell v. (3 Leg. News 405) 462, 504 , Gilchri-st v. (3 Rugs. & Barb. 553) 209 Donovan v. Boston & Maine R. R. Co. (158 Mass. 450) .... 665 Dorgan v. Teleg. Co. (1 Am. L. T. (n. s.) 406) 604 Dougherty, Little v. (11 Col. 103) 690, 691 , W. U. Tel. Co. V. (54 Ark. 221) 453, 540, 542 Douglas V. Sioux City St. Ry. Co. (58 N. W. Rep. 1070) .... 735 Dowd I'. Brooklyn Heights R. R. Co. (9 Misc. Rep. (N. Y.) 279 ; 29 N. Y. Supp. 745) 743, 704, 765 Downey v. Pittsburg, Alleghany & M. Traction Co. (101 Pa. St. 131) 759, 762 Doyle V. Mizner (42 Mich. 332) 3G V. West End St. Ry. Co. (161 Mass. 533) 743, 744 Dozier, W. U. Tel. Co. v. (67 Miss. 288) 369, 370 Drake, Fechet v. (12 Pac. Rep. 694) 277 Drew, Pierce y. (136 Mass. 75) 101,102,110 Dryburg, New York & Washington Printing Teleg. Co. i'. (35 Pa. St. 298) 6, 7, 377, 380, 384, 400, 462, 46.5. 466, 504-506, 541, 604 Dryden, St. Joseph & Denver City R. Co. v. (11 Kan. 147) . 123, 125 Dulioi.s, W. U. Tel. Co. v. (128 111. 248) 462, 464, 465 , V. (29 111. App. 219) 462, 464, 465 DuBois Traction Pass. Ry. Co. v. Buffalo, R. & P. Ry. Co. (149 Pa. St. 1) 230 Dudley V. W. U. Tel. Co. (54 Mo. App. 391) 480 Dnggan, Joliet St. Ry. Co. v. (45 111. App. 450) .... 723, 736, 738 Duluth St. Ry. Co., Jarmy v. (55 Minn. 271) 732 Dunfield, W. U. Tel. Co. v. (11 Col. 335) 540 Dunlap, Dallas Rapid Transit Ry. Co. v. (26 S. W. Rep. 877) 720, 743 Dunning v. Roberts (35 Barb. (N. Y.) 463) 690, 691 Dunseath v. Pittsburg, Alleghany & M. Traction Co. (161 Pa. St. 128) 765 Durkee v. Vermont Central R. R. Co. (29 Vt. 127) G6i5-670 Durstou, People exrel. Kemmler v. (119 N. Y. 569) .... 715, 716 Xlvi TABLE OP CASES CITED. SECTION Dusenbury v. Mutual Teleg. Co. (11 Abbott (N. C) 440) . 103, 1U4, 110, 111 Duvall, Omaha St. Ry. Co. k (58 N. W. Rep. 531; 743, 744, 748, 750, 753 Dwight, In re (15 Out. 148) . 437 , Jersey City Gas Co. v. (29 X. J. Eq. 242) 146 E. Eaehus v. Los Angeles Con. El. Ry. Co. (37 Pac. Rep. 751) . 109, 206 East Detroit & Grosse Pointe Ry. Co., Rascher v. (90 Mich. 413) 744, 753 Easteru Plank Road Co. v. Vaughan (14 N. Y. 546) 36 Eastern R. R. Co., Deverson v. (58 N. H. 129) 665 Easton, Smith v. (54 Md. 138) 666, 670, 672, 690 East Orauge, Newark Pass. Ry. Co. v. (31 Atl. Rep. 722) . . . 232 , New York & New Jersey Telep Co. v. (42 N. J. Eq. 490) . 203 East River El. Light Co. v. Clark (18 N. Y. S. 463) 37 East Teim. Telep. Co. v. Chattanooga El. St. Ry. Co. r. (2 Am. El. Cas. 323) 213 East Tenn. Va. & Ga. R. R. Co. v. DeArmond (8G Tenn. 75) . . 444 Eaton t'. Boston, Concord & Montreal R. R. Co. (51 N. H. 504) . . 103 , People y. (100 Mich. 208) 116 Ebangh, Fort Clark St. Ry. Co. v. (49 111. App. 582) 728 Edison Elec. Illuminating Co., Lancaster v. (8 Pa. Co. Ct. 178; 2 Am. El. Cas. 116 830 , Williams 1-. (16 N. Y. S. 857) 280 Edison Elec. Light Co., Com. v. (157 Pa. St. 529) 851 , Com. V. (145 Pa. St. 131) 29, 851, 852, 854 Edison Telep. Co., Atty. Gen. v. (6 Q. B. Div. 244) .... 4, 13-15 Edsall, W. U. Tel. Co. v. (03 Tex. 068) 377, 383, 407 Eels V. American Telep. & Teleg. Co. (143 N. Y. 133; 8. c. 38 N. E. Rep. 202) 110, 117 Eichels v. Evansville St. Ry. Co. (78 Ind. 261) 23, 105 Elec. Const. & Sup. Co., Au.sten v. (28 N. Y. Suppl. 81) .... 858 Elec. Imp. Co. v City & County of San Francisco (45 Fed. Rep. 593) 254 , Giraudi v (40 Pac. Rep. 108) 256 V. Scannell (45 Fed. Rep. .596) 254 Elec. Light, Heat & Power Co., Lee v. (140 Pa. St. 618) 234, 236, 268, 272 V. San Bernadino (100 Cal. 351) 712 , Carson y. (85 la. 44) 281 p]lec. Power Co. v. Metropolitan Telep. &. leleg. Co. (75 Ilun (NY.) 68) 258 Ele<;. Ry. Co. of Grand Rapids v. Com. Council of City of Grand Rapids (84 Mich. 257) 149, 151 Elec. Reporting Co., Davis v. (19 Wkly. Not. Cas. 567) .... 292 Elec. Supply Co., Industrial & Mining Guaranty Co. v. (58 Fed. Rep. 739) 279 Elec. Tel. Co., MacAndrew v. (17 C. B. 3) . . 377, 453, 511, 517, 604 Elec. Traction & Mfg. Co. v. New Orleans (14 So. Rep. 281) . . . 8.55 Elevated Ry. Co., Cora. v. (161 Pa. St. 409) 29 TABLE OP CASES CITED. xlvii HECTION Elliott, Dallas Rapid Transit Ry. Co. v. (20 S. W. Rep. 455) 711, 7(J0 V. ^'e\vport 8t. Ry. Co. (28 Atl. Rep. 338) 720, 727, 720, 730, 737, 738 i>. (31 Atl. Rep. GUI) 730 , W. U. Tel. Co. y. (27 S. W. Rep. 219) 518 Ellis V. American Teleg. Co. (13 Allen, 22(5) G, 7, 377, 380, 383, 386, 406, 403-400, 405, 408, 504-506, 510, 512, 518, 522, 004 V. Lynn & Boston R. R. Co. (100 Mass. 341) . . . 743, 745, 740 Elsey V. Tostal Teleg. Co. (15 Daly, 58) 402 Elwood V. W. U. Tel. Co. (45 N. Y. 549) 380, 427 Empire State Teleg. & Telep. Co., Blashfield v. (Super.) (18 N. Y. Siipp. 250) , 110, 112 English c. Progress El. Light & Motor Co. (95 Ala. 259) . . . 713 Erie City Passenger Ry. Co., Fritz r. (15.j Pa. St. 472) .... 180 Erie Teleg. & Telep. Co. v. Grimes (82 Tex. 89) .... 611, 041 , Willis V. (37 Minn. 347) 110, 232 , Wolfe V. (33 Fed. Rep. 320) 200 Eskridge, W. U. Tel. Co. v. (7 Ind. App. 208) 409 Essex County Elec. Co. v. Kelly (29 All. Rep. 427) 234, 266-270, 272 European, etc. Tel. Co., Southeastern R. Co. v. (9 Exch. 363) . . 233 Evans, W. U. Tel. Co. v. (1 Tex. Civ. App. 297; s. c. affirmed, 5 Tex. Civ. App. 56) 600, 663 EvansvilleSt. Ry. Co., Eichelsy. (78lnd. 261) 23,105 Ex parte Brown, See Brown, Ex parte. Ex parte Conwav, See Conwav. Ex parte. Eyser, W. U. Tel. Co. v. (2 Col. 141 ; s. c. 91 U. S. 495; 234, 247, 243 F. Fairbanks, W. U. Tel Co. v. (15 111. App. 600) . . 453, 540, 545, 546 Fanning v. Osborne (102 N. Y. 441) 00 Fatman, \\. U. Tel. Co. v. (73 Ga. 285) .... 409, 594, 599, 069 Feaver v. Montreal Teleg Co. (23 Up. Can. C. P. 150; 24 Up. Can. C. P. 258) 455, 460 Fechet v. Drake, (12 Pac. Rep. 694) 277 Federal St. & Pleasant Valley Ry. Co., Carson v. (147 Pa. St. 219) 23, 755, 756 , Gilmore v. (158 Pa. St. 31) 739, 740, 755, 702, 766 , Greeley v. (153 Pa. St. 218) 746 , Winter v. (153 Pa. St. 26) 766 Feegles, W. U. Tel. Co v. (75 Tex. 537) 657, 059 Fellner, W. U. Tel. Co. v. (58 Ark. 29) 027 Fenton, W. U. Tel. Co. v. (52 Ind. 1) 408, 409, 462, 464, 482, 504, 500, 513, 525 Ferguson, W. U. Tel. Co. v. (57 Ind. 495) 352 , W. U. Tel. Co. V. (27 S. W. Rep. 1048) 560 Ferris, W. U. Tel. Co. v. (103 Ind. 91) 484, 485 Fidelity Trust & Safety Vault Co. v. ]\Iobile St. Ry. Co. (53 Fed. Rep. 687) . ." 159 Findlay i-. W. U. Tel. Co. (04 Fed. Rep. 459) . . . 504, 506, 555, 501 xlviii TABLE OF CASES CITED, SECTION First Nat'l Bank of Barnesville v. AV. U. Tel. Co. (-30 Oh. St. 5.0.-3) 408, 577 Flad, State ex rel., Bell Telep. Co. v. (23 Mo. App. 18o) .... 149 Flagg V. Millbury, (4 Cush. 243) 360 Fleischner v. Pacific Postal Tel.-Cable Co. (55 Fed. Rep. 738) 402, 525 527, 528, 574, 615 , V. (66 Fed. Rep. 899) 61o Fletcher v. Rylands, L. R, (3 H. L. 330) 220, 221, 234 Flint V. Kennedy, (33 Fed. Rep. 820) 670, 671 Flood V. W. U. Tel. Co. (131 N. Y. 603) . . . 234, 236, 266-269, 272 Foley V. Jersey Citv El. Light Co. (54 N. J. L. 411) 234, 236, 266, 272 Fontaine, W. U. Tel. Co. v. (58 Ga. 433) 8, 377, 380, 386, 388, 394, 408, 510, 513, 535 Fore, W. U. Tel. Co. v. (26 S. W. Rep. 783) 660 Forke, Teleg. Telep. Co. v. (2 Tex. App. 367) 101 Fort Clark St. Ry. Co. v. Ebaugh, (49 111. App. 582) 728 Fort Wayne Elec. Co., Keokuk v. (57 N. W. Rep. 689) .... 195 Fort Wayne & E. Ry. Co., People ex rel. Kunze v. (92 Mich. 522) . 107 Fortysecond St , etc. R. R. Co., Kellinger v. (50 N. Y. 206) ... 106 Fowier v. W. U. Tel. Co. (80 Me. 381) 377, 380, 382, 384, 397, 399-401, 403, 404, 4U9, 515 Fox V. Brooklyn City Ry. Co, (7 Misc. Rep. (N. Y.) 285) . 727, 734 Franci-s, Godwin v. (5 C. P. 295) 692 Francisco v. Troy & L. Ry. Co. (78 Hun, 13) 729 Franklin v. Northwestern Telep. Co. (69 la. 97) 13, 16 Frauenthal v. W. U. Tel. Co. (50 Ark. 78) 479, 486 Frazer v. W. U. Tel. Co. (84 Ala. 487) 571, 574, 578 Freedman, Ilennisler v. (2 Pars. Sel. Cas. 274) 437 Freeman v. W. U. Tel. Co. (93 Ga. 230) 585 Fremont, W. U. Tel. Co. v. (58 N. W. Rep. 415) 826 Fritz V. Erie City Passenger Ry. (155 Pa. St. 472) 186 Fulton y. Short Route Ry. Transfer Co., (85 Ky. 640) 108 G. Gaffney v. Brooklyn City Ry. Co. (25 N. Y. Suppl. 996) .... 731 Gahan v. W. U'. Tel. Co. (59 Fed. Rep. 433) 645 Garrett r. W. U. Tel. Co. (83 Iowa 257) 525, 527, 611 Gay V. Mutual Union Teleg. Co. (12 Mo. App. 485) 116, 154, 199, 204, 205 Geneva v. Brush Elec. Co. of Cleveland (50 Hun (N. Y.), 581) 200, 201 Georgia Cotton Co., W. U. Tel. Co. v. (21 S. E. Rep. 83.5) ... 422 Gibbous V. Wilkesbarre, etc., St. Ry. Co. (155 Pa. St. 279) 739, 740, 746 Gidcumb, W. U. Tel. Co. v. (28 S. W. Rep. 699) 645 Gilchrist v. Dominion Teleg. Co. (3 Rugs. & Barb. 553) .... 209 Gildersleve, U. S. Tel. Co. v. (29 Md. 232) 380, 510, 512, 518, 568, 569, 574, 578, 604 Gillis V. W. U. Tel. Co. (61 Yt. 461) . 377, 380, 383, 386, 510, 513, 530, 533 TABLE OF CASES CITED. xlix 6ECTIOK Gilmore i'. Federal St. & Pleasant Valley Pass. Ry. Co. (15.3 Pa. St. 31) '739, 740, 705, 7(JG, 702 Giraudi v. Elec. Improvement Co. (40 Pac. Rep. 108) 256 Given D. W.- U. Tel. Co. (24 Fed. Rep. 119) 411, 4_'J Gladwell v. Steggall (5 Bing. (N. C.) 7:33) 459 Glazebrook v. West End St. Ry. Co. (100 Mass. 239) 711 Globe Printing Co. v. Stahl (23 Mo. App. 451) 677, 676 Glover, Augusta Railway Co. r. (92 Ga. 132) 723, 726 Godsev, W. U. Tel. Co. r. (Tex.) (10 S. W. Rep. 789) .... 664 Godwin r. Francis (5 C. P. 295) 692 Gold & Stock Teleg. Co., People v. (98 N. Y. 67) ... 57, 842, 846 , Shepard v. (38 Hun (N. Y.) 33S) 291, 292, 374 , Smith i;. (42 Hun (N. Y.) 454) 7,291,292 Goodman, Harrisburg Elec. Light Co. v. (129 Pa. St. 206) ... 277 Gougar, W. U. Tel. Co. v. (84 Ind. 176) . 409, 477, 479, 480, 488, 489 Graliam, W. U. Tel. Co. v. (1 Col. 230) . . . 397, 399, 513, 525, 530 Grand Avenue Ky. Co., Jackson f. (118 Mo. 199) 723 Grand Rapids, Com. Council of City of, Elec. Ry. Co. of Grand liapids V. (84 ]\lich. 257) 149, 151 Grand Kapids E. E. L. & F. G. Co., Grand Rapids E. L. & P. Co. c. (33 Fed. Rep. 659) 173, 177 Grand Rapids E. L. & P. Co. v. Grand Rapids E. E. L. & F. G. Co. (33 Fed. Rep. 659) 173, 177 Grant, United Lines Tel. Co. v. (137 N. Y. 7) .... , U. S. Illuminating Co. v. (27 N. Y. St. Rep. 767) . Gray i: Boston Gas Light Co. (114 Mass. 149) .... r. W.-U. Tel. Co. (87 Ga. 350) . 1G7 . 107 . 254 352, 353 101, 204 Great Soutliern Telep. Co., Irwin v. (37 La. An. 63) . . Great Southern Telep. & Teleg. Co., New Orleans v. (40 La. An. 41) 50, 159, 833 , Ti.ssot I'. (39 La. An. 996) 209 Great Western Railway Co., Austin?'. (L. R. 2 Q. B. 442) ... 459 Greeley v. Federal St. & Pleasant Valley Pass. Ry. Co. (153 Pa. St. 218) 746 Green v. City & Suburban Ry. Co. (28 Atl. Rep. 626) . . 107, 184 , Saveland i\ (40 Wise. 431) 666 Greenberg r. W. U. Tel. Co. (89 Ga. 754) 488 Greenville, IMauldin v. (33 S. C 1) 21, 188, 190, 191 Griffin v. Colver (10 N. Y. 489) 592, 630 , Newport News & M. V. R. Co. v. (92 Tenn. 694) .... 6.52 , W. U. Tel. Co. V. (1 Ind. App. 10) . . . 357, 359, 362, 367, 488 Grigg.sby, W. U. Tel. Co. v. (29 S. W. Hep. 406) 643 Grimes, Erio Teleg. & Telep. Co. v. (82 Tex. 89) .... 611, 641 Grinuell r. W. U. Tel. Co. (113 Mass. 299) 7, 377,380, 383,3^6. 400, 4.->3, 510, 512, 518, 604 Griswold, Telegraph Co. v. (37 Oh. St. 301) 7, 374, 376, 377, 3^0, 384, 401, 400. 407, 513, 515. 530, 604, 606 Guernsev & Scudder Elec. Light Co., W. U. Tel. Co. v. (40 Mo. App. 120) 41,48,146,223 d 1 TABLE OF CASES CITED. SECTION Guggerty, Riordan i-. (7-1 la. 6SS) CGO, GG7, 669 Gulf, Col., & S. F. Ry. Co. v. Levy (59 Tex. 542) .... 361, 656 V. Loouie (82 Tex. 323) 435 c. Todd. (4 Tex. App. 555 ; s. c. 19 S. W. Rep. 761) ... 554 . V. Wilson (69 Tex. 739; s. c. sub nom. Gulf, Col, & S. F. Ry. Co. r. Miller, 69 Tex. 739) 409, 413, 525 J Col., & S. F. Teleg. Co. v. Richardson, 79 Tex. 649 .... 641 H. Haas V. Myers (111 111. 421) 681, 683 Hadley r. Buxendale (9 Exch. 341) . 566-568, 578, 579, 592, 595, 596 V. W. U. Tel. Co. (115 Ind. 191) 473, 486 Hall, W. U. Tel. Co. v. (124 U. S. 444) . 570, 582, 620, 622, 629, 630 Halsey v. Newark (54 N. J. L. 102) 148, 183 V. Rapid Transit St. Ry. Co. (47 N. J. Eq. 380) 107, 148, 153, 176, 183, 187 Haraau, W. U. Tel. Co. v. (2 Tex. Civ. App. 100) 610 Hamilton Gas Light & Coke Co. v. Hamilton (37 Fed. Rep. 832 ; s. c. 146 U. S. 258) 190 Hamilton, Hamilton Gas Light & Coke Co. v. (37 Fed. Rep. 832; s. c. 146 U. S. 258) 190 , State V. (47 Oh. St. 52) 21, 190 , W. U. Tel. Co. V. (50 Ind. 181) 477 Haney v. Pittsburg, Alleghany & M. Tr. Co. (159 Pa. St. 395) . . 761 Hannibal v. Mo. & Kan. Telep. Co. (31 Mo. App. 23) 159 Henson r. Hunter (48 N. W. Rep. 1005; s. c. 53 N. W. Rep. 84 ) . 195 Harding, W. U. Tel. Co. v. (103 Ind. 505) 408, 421 Harkness y. W. U. Tel. Co. (73 la. 190) 409,454,455 Harriman v. Woburn Elec. Light Co. (163 Mass. 85) 277 Han-is V. W. U. Tel. Co. (9 Phila. 88) 431, 504, 604 . , j;. (19 111. App. 347) 380, 383, 406, 407, 513, 53.5, 606, 669, 673 Harr'isburg Elec. Light Co. v. Goodman (129 Pa. St. 206) .... 277 Ilarri-son, Amor. Union Teleg. Co. v. (31 N. J. Eq, 027) .... 156 Hart, Buckner v. (.52 Fed. Rep. 835) 146, 157, 184 t,. Direct U. S. Cable Co. (86 N. Y. 633) 431 , Haverford Elec. Light Co. i-. (13 Pa. Co. Ct. Rep. 369) . . 126 , New Orleans Gas Light Co. v. (40 La. An. 474) 226 V. West Side St. Ry. Co. (86 Wise. 489) 738, 771 V W. U. Tel. Co. (66 Cal. .579) 379, 382, 512, 518 Hartstein r. W. U. Tel. Co. (62 N. W. Rep. 412) 615 Haverford Elec. Light Co. v. Hart (13 Pa. Co. Ct. Rep. 369) ... 126 Hawkeye Teh Co., Turner r. (41 la. 4.58) 406,407,624 Ilavnes v. Raleigh Gas Co. (19 S. E. Rep. 344) . . 234, 24.S, 249, 251 Hazelton & No. Side Elec. Ry. Co., Union St. Ry. Co. v. (lo4 Pa. St. 422) -^- Hearne, W. U. Tel. Co. v. (77 Tex. 83) .... 403, 407, 512, 518 Ilpctori;. Boston Elec. Light Co. (1 01 Ma.<^s. 5.58) 2.o6 Ueimann v. W. U. Tel. Co. (57 Wise. 562) 540, 542, .543, 545, 548, 5-53 TABLE OF CASES CITED. H SECTION Henderson, W. U. Tel. Co. v. (89 Ala. ulU) 410, 453, 540, 560, G;J7, Uia Henkel >: Pape (G Exch. 7) ^''l llenuint,^ v. W. U. Tel. Co. (11 Fed. Rep. Wl) 234, 'J4« Ilenuisler v. Freedmau ('J Pars. 8el. Cas. 274) 437 Herman, Magie v. (50 Minn. 424) fj'j9 Ilerron r. W. U. Tel. Co. (57 N. W. Rep. GOG) . . 50G, 543, 555, 557 Heishtield v. Rocky Mt. Bell Telep. Co. (12 Mont. 102) .... 110 Hess, Amer. Rapid Tel. Co. v. (125 N. Y. 641; 58 Hun, 610) 41, 42, 40, 161, IGO , U. S. Illuminating Co. v. (10 N. Y. St. Rep. 883) .... 107 Ilewett, Rigley v. (5 Exch. 240) 572 V. W. U. Tel. Co. (4 Mackay, 424) 47, 114 Hewlett c. W. U. Tel. Co. (28 Fed. Rep. 181) 373. 374 Hiawatha, State v. (53 Kan. 477) 1««. 1^'^ Hibbard v. W. U. Tel. Co. (33 Wise. 558) . 380, 408, 513, 535, 582, 604, 622, 628, 629 Hickey r. St. Paul City Ry. Co. (01 N. W. Rep. 893) 755 Hickman v. Union Depot R. R. Co. (47 Mo. App. 65) 23, 739, 740, 741, 744, 755 Hill V. Ry. Co. (39 Fed. Rep. IS) ■ 444 V. W. U. Tel. Co. (85 Ga. 42.5) 453, 540, 545, 559, 502 ,.. (20 S. E. Rep. 135) 588, 593 , V. (26 S. W. Rep.) 252) 003 Hinkle, W. U. Tel. Co. v. (3 Tex. Civ. App. 518) . 371, 500, 507, 555 Iliuton V. Dibbin (2 Q. B. 040) 385 Hiss r. Baltimore & Hampden Pass. Ry. Co. (52 Md. 242) . . 23, 105 Hobnken, Bridge Co. v. (13 N. J. Eq. 81) 153, 176 Hobson, Washington & 2sew Orleans Teleg. Co. v. (15 Gratt. 122) . 383 Hockett V. State (105 Ind. 250) 310 Hoffman, W. U. Tel. Co. v. (80 Tex. 420) 041 Hollisr. W. U. Tel. Co. (91 Ga. 8U1) 624 Holmes V. Union Teleg. & Telep. Co. (Sup.) (16 N. Y. S. 563) . . 255 Holt, Baker v. (56 Wise. 100) 081 Holvoke St. Ry. Co., Benjamin v. (160 Mass. 3) . . . . 742, 745, 740 Hope, W. U. Tel. Co. r. (1 1 111. App. 289) 400, 401, 408, 456, 457, 462, 404, 465 Hopkins, W. U. Tel. Co. v. (49 Ind. 223) 673 Horn r. AV. U. Tel. Co. (88 Ga. 538) 416,476,489 Hoskins, State (;. (59 N. W. Rep. 515) 773 Houghton, W. U. Tel. Co. v. (82 Tex. 561) .... 412, 414, 6.57, 602 Housewright, W. U. Tel. Co. v. (5 Tex. Civ. App. 1) 057 Houston City Rv. Co. r. Woodlock (29 S. W. Rep. 817) . 740, 741, 750 Howell, W. U. Tel. Co. v. (38 Kan. 085) . . . 390, 394, 400, 407, 604 Howley v. Whipple (48 N. H. 487) 672 Hudson Elec. Light Co. v. Hudson (40 N. E. Rep. 100) .... 194 Hudson, Hudson Elec. Light Co. v. (40 N. E. Rep. 100) .... 194 Hudson River Telep. Co., Austen r. (73 Hun (N. Y.), 96) ... 857 , People ex rel. Postal Tel.-Cable Co. v. (19 Abb. (N. C.) 466) . 307 Hudson River Telep. Co. v. Watervliet Turnpike & Ry. Co. (121 N. Y. 403; 135N. Y. 303) 22,213-210 lii TABLE OF CASES CITED. SECTION Huff, W. U. Tel. Co. V. (102 Ind. 535) 488 Hughes c. W. U. Tel. Co. (Hi N. C. 70) 624 HuLt, Memphis Bell Telep. Co. i'. (16 Lea (Tenn.) 456) .... 209 Hunter, Hanson v. (48 X. W. Rep. 1005; s. c. 53 N. W. Rep. 84) . 195 , U. S. V. (15 Fed. Rep. 712) 437 Hutcheson, W. U. Tel. Co. v. (91 Ga. 252) 356, 357, 364 liutmacher, Auheuser Busch Brewing Ass'n v. (29 111. App. 316) 666, 669 Hyer, W. U. Tel. Co. v. (22 Fla. 637) 594, 597, 598 I. Bvard v. W. U. Tel. Co. (Tex. Civ. App.) (22 S. W. Rep. 534) . 657 Illingsworth r. Boston Elec. Light Co. (161 Mass. 583) . . . 256, 705 Illinois, Munn v. (94 U. S. 113) 308 Illinois & Miss. Teleg. Co., Sweatland v. (27 la. 433) 6, 380, 397-399,401, 403, 407, 514, 515, 530 Independent Line of Teleg., Rittenhouse v. (44 N. Y. 263) 380, 384, 406, 407 Industrial & Alining Guaranty Co. v. Eleo. Supply Co. (58 Fed. Rep. 739) 279 Inman & L S. S. Co., W. U. Tel. Co. v. (59 Fed. Rep. 365) ... 273 Intercounty St. Ry. Co., Lehigh Coal & Nav. Co. v. (31 Atl. Rep. 471) 148 , Tamaqua & L St. Ry. Co. v. (31 Atl. Rep. 473) 148 , Tliomas i: (31 Atl. Rep. 476) 109 International Ocean Teleg. Co. v. Saunders (32 Fla 434) .... 646 International Teleg. Co., True v. (60 Me. 9) 7, 498, 515, 525, 535, 580, 582, 604, 622, 625, 628, 630 Irvine, Pacific Postal Tel. -Cable Co. v. (49 Fed. Rep. 113) .... 110 Irwin ('. Great Southern Telep. Co. (37 La. An. 63) ... . 101, 204 J. Jack, :Murphy, v. (142 X. Y. 215) 680 Jackson y. Grand Avenue Ry. Co. (118 Mo. 109) 723 t>. Wisconsin Telep. Co. (88 Wise. 243) 257 James, W. U. Tel. Co. v. (90 Ga. 254) . 51, 462, 464, 465, 485, 499, 549 555, 625, 629 Janesville St. Ry. Co., State ex rel. Wise. Telep. Co. v. (87 Wise. 72) 222 Jarmy v. Duluth St. Ry. Co. (55 Minn. 271) 782 Jaynes, ex parte (70 Cal. 638) 437, 438 Jeanes, W. U. Tel. Co. v. (29 S. W. Rep. 1130) 660 Jeffries, Com. v. (7 Allen, 548) 672, 674 Jefts V. York (10 Cush. 392) 426 Jenkins, Atwell v. (Mass. Sup. Ct.) (40 N. E. Rep. 178) .... 687 Jenney Elec. Light & Power Co. v. Murphy, (115 Ind. 566) . 705, 710 Jersey City, State, Iludsoa Telep. Co. v. (49 N. J. L. 303) ... 159 Jersey City & Bergen R. R. Co. v. Jersey City & Hoboken Horse R. R. Co. (20 N.J. Eq. 61) 22,23,101,102,105 Jersey City Elec. Light Co , Foley v. (54 N. J. L. 411) 234. 236, 266, 272 Jersey City & Hoboken Horse R. R. Co., Jersey City & Bergen R. R. Co. V. (20 N. J. Eq. 61) 22, 23, 101, 102, 105 TABLE OF CASES CITED. liil SECTION Jersey City Gas Co. r. Dwight (29 N. J. Eq. 242) 14(5 Jobe, W. U. Tel. Co. v. (G Tex. Civ. App. 407) . . 400, 410, 50:3, 0.57 Johnson, Cape May, etc. 11. K. v. (35 N. J. Eq. 422 G98 V. Nortiiwestern Tcleph. Exchange Co. (Minn.) (51 N. W. Rep. 225) 248 r. State (113 Ind. 143) 317 Johnston c. W. U. Tel. Co. (33 Fed. Rep. 302) .... 542, 550, 5.57 Joliet St. Ry. Co. v. Duggan (45 111. App. 450) .... 723, 736, 738 Jones V. Brooklyn Heights Ry. Co. (31 N. Y. Supp. 445) .... 743 , U. S. V. (109 U. S. 513) 99 V. W. U. Tel. Co. (18 Fed. Rep. 717) (Ark.) . 386, 403, 407, 510, 512, 536 , f. (95 Ind. 228) 453, 540, 543, 548, 550 , V. (110 liid. 301) 480 , V. (09 Miss. 658) 371 , r. (81 Tex. 274) 447, 657, 060 Joseph, McCoi-mick v. (83 Ala. 401) 066 Julia iJuildiiig Ass'n v. Bell Teleph. Co. (88 Mo. 25S ; s. c. 13 Mo. App. 477) 116 Julian V. W. U. Tel. Co. (98 Ind. 327) 409, 411 Juuior V. Missouri Elec. Light & Power Co. (29 S. W. Rep. 988) 200, 267 K. Kankakee Elec. Ry. Co. v. Whittemore (45 111. App. 484) ... 751 Kansas, Mugler v. (123 U. S. 623) 46 Kansas Citv& I. R. Tr. Co., Moore v. (29 S. W. Rep. 9) .... 741 Karr, W. U. Tel. Co. v. (5 Tex. Civ. App. 01) 500, 657 Keating Implement & Mch. Co. i'. Marshall Elec. Light & Power Co. (74 Tex. 605) 2S0 Keenan v. Brooklyn Citv R. R. Co. (8 Misc. Rep. (N. Y. COl) 764, 705 Kelley, Essex County Elec. Co. v. (29 Atl. Rep. 427) 234, 266-270, 272 Kellinger v. Forty-second St., etc. R. R. Co. (50 N. Y. 206) . . . 106 Kemmler, in re (136 U. S. 436) 717 , People r. (119 N. Y. 580) 716 Kemp r. W. U. Tel. Co. (28 Neb. 661) 512, 518 , V. (02 N. W. Rep. 541) 548 Kendzora, W. U. Tel. Co. v. (77 Tex. 257) 640 Kennedy, Flint i'. (33 Fed. Rep. 820) 670, 071 V. Lansing (99 Mich. 518) 730 Kennon r. W. U. Tel. Co (92 Ala. 399) 454, 457 Kenvon v. W. U. Tel. Co. (100 Cal. 454) 582, 019 Keokuk v. Ft. Wavne Elec. Co. (57 N. W. Rep. 689) 195 Kershaw, Moulton" I'. (59 Wise. 316) 682 Kester v. W. U. Tel. Co. (55 Fed. Rep 603) 645 Ketchumr. Buffalo (14 X. Y. 356) 190 Kiley v. W. U. Tel. Co. (109 N. Y. 231 ; s. c. 39 Hun, 158) 377. 495, 498, 512, 518, .526, 004. 028 Kilpatiick, W C. Tel. Co. v. (97 Ind. 42) 4bS, 076 liv TABLE OP CASES CITED. Kinghorne v. Moutreal Tel. Co. (18 Up. Can. Q. B. 60) Kimiey, W. U. Tel. Co. v. (lOG Ind. 468) .... Kinsley, W. U. Tel. Co. v. (28 S. W. Rep. 831) . . Kirby V. W. U. Tel. Co. (S. D.) (55 X. W. Rep. 759) V. (57 N. W. Rep. 202; 60 N. W. Rep. 152) Kirkpatrick, W. U. Tel. Co. v. (76 Tex. 217) . . . Knight, Lynch v. (9 H. L. C. 577) Koch I'. North Avenue Ry. Co. (75 Md. 222) . . . Koons V. W. U. Tel. Co. (102 Pa. St. 164) . . . . Ivraatz v. Brush Elec. Light Co. (82 Mich. 457) . . Kuykendal, Sullivan v. (82 Ky. 483) 446, 23 SECTION 452, 626 . 473 559, 643 . 517 . 488 640, 660 . 656 105, 107 . 409 705, 707 677, 679 L. Lake Erie Teleg. Co., Bowen v. (1 Amer. L. Reg. 685) 377 Lake Roland El. Ry. Co. o. McKewen (31 Atl. Rep. 797) .... 741 Lancaster v. Edison Elec. Illuminating Co. (8 Pa. Co. Ct. 178; 2 Am. El. Cas. 116) 830 Landis, W. U. Tel. Co. v. (21 Wkly. Not. Cas. 38) 462 Landsberger v. Magnetic Tel. Co, (32 Barb. (N. Y.) 530) . . 580, 581 Lane v. :\lontreal Teleg. Co. (7 Up. Can. C. P. 23) . 459, 574, 575, 578 Lane Co. v. Oregon (7 Wall. 77) 818 Langley v. W. U. Tel. Co. (88 Ga. 777; s. c. 15 S. E. Rep 291j 475, 481 Lansing, Kennedy v. (99 Mich. 518) 730 Lansing City Ry. Co.,^Montgomery v. (61 N. W. Rep. 543) . 740, 741 Lassiter v. W. U. Tel. Co. (89 X. C. 334) 510, 512, 518 Lathrop. Postal Tel.-Cable Co. v. (33 111. App. 400; s. c. 131 lU. 575) 606,608 Lawrence v. New Bedford (160 Mass. 227) 201 , Slee V. (162 Mass. 40.5) 237 Lebanon & A. St. Ry. Co., Yingst r. (31 Atl. Rep. 687) .... 746 Lee V. Elec. Light, Heat & Power Co. (140 Pa. St. 618) . 234, 236, 268, 272 V. W. U. Tel. Co. (51 Jklo. App. -375) 462, 464, 465 Lehigh Coal & Nav. Co. v. Intercounty St. Ry. Co. (31 Atl. Rep. 471) 148 Leiter, U. S. Electric Lighting Co. v. (19 D. C. 575) 37 Leloup V. Port of Mobile (127 U. S. 640) . . .12, 41, 53, 55, 822, 829 , Port of Mobiles. (76 Ala. 401) 41,829 Leonard v. New York, Albany, & Buffalo Elec. Magnetic Tel. Co. (41 N. Y. 544) . 377, 434, 446, 452, 454, 455, 569, 574, 578, 582, 628, 630 Lester v. W. U. Tel. Co. (84 Tex. 313) 540 Levi, W. U. Tel. Co. r. (47 Ind. 552) 236 Levy, Gulf, Col. & S. F. Ry. Co. v. (59 Tex. 542) 361, 656 V. W. U. Tel. Co. (35 Mo. App. 170) 620, 627 Lewis V. Browning (130 Mass. 173) 683 Lewiston & Auburn Horse Ry. Co., Briggs v. (79 Me. 363) 22, 23, 105, 107, 108 TABLE OP CASES CITED. Iv SECTION Li(L]ell, W. U. Tel. Co. v. (GS Miss. 1) 571 Lieb, W. U. Tel. Co. v. (70 III. 17-2) 841 Lightcap, Philadelphia Traction Co. v .(61 Fed. Rep. 702) . . . 745 Lilly c. Smales (L. 11. 1892. 1 q. 15. 450) C88 Limburger v. Sau Antonio Rapid Transit St. Ry. Co. (27 S. W. Rep. 198) 205, 206 V. (30 S. W. Rep. 533) 2(i6 Lincoln St. Ry. Co. v. Adams (GO N. W. Rep. 83) 205, 207 Lindley, W. U. Tel. Co. v. (02 Ind. 371) 412, 417 , r. (89 Ga. 484; s. c. 15 S. E. Rep. 636) G75 Linn r. Chambersburg Borough (160 Pa. St. 511) . . . .20,21,197 , W. U. Tel. Co. V. (20 S. W. Rep. 491) GOO Litchfield, State v. (58 Me. 267) 437, 438 Little t'. Dougherty (11 Col. 103) 090,091 Little Rock & Ft. Smith Teleg. Co. v. Davis (41 Ark. 79) 377, 380, 383, 408, 480, 486 Lockie v. Mutual Union Teleg. Co. (103 111. 401) 129 Lockhart r. Craig St. Ry. Co. (139 Pa. St. 419) ... 22, 23, 107, 117 Logan i: W. U. Tel. Co. (84 111. 408) 635 Longwill, W. U. Tel. Co. v. (21 Pac. Rep. 339) . . 462, 504, 540, 557 Loonie, Gulf, Col. cSi S. F. Ry. Co. i-. (82 Tex. 323) 435 Lord V. Midland Ry. Co. (L. R. 3 C. P. 344) 385 Lorimer v. St. Paul City Ry. Co. (48 Minn. 391) 234,268 Los Angeles Con. El. Ry. Co., Eachus v. (37 Pac. Rep. 751) . . 109,206 Louisiana, Morgan l: (118 U. S. 462) 46 Louisiana Elec. Light Co., Clements v. (44 La. An. 692) .... 256 , New Orleans Gas Co. v. (115 U. S. 650) 168 Louisville Bagging Mfg. Co. v. Central Pass. Ry. Co. (23 S. W. Rep. 592) 107, 109 Louisville Gas Co. v. Citizens' Gas Co. (115 U. S. 683) 168 Louisville, New Orleans, & Texas Ry. Co., Adams v. (13 So. Rep. 932) 817 V. Postal Tel.-Cable Co. (68 Miss. 806) 128 Louisville Transportation Co. v. Am. Dist. Telep. Co. (24 Alb. L. J. 283) 314 Lovejoy, Baltimore & Ohio Teleg. Co. v. (48 Ark. 301) .... 490 Lowe, Citizens' St. Ry. Co. v. (39 N. E. Rep. 165) 746 Lowell & Dracut St. Ry. Co., Beal v. (157 Mass. 444) 727 Lowery v. W. U. Tel. Co. (00 N. Y. 198) .... 406, 571, 572, 632 Lowrey, W. U. Tel. Co. v. (32 Xeb. 732) . . 512, 514, 518, 525, 005 Lubbers, Colorado Elec. Co. v. (11 Col. 505) 705, 706 Lurabard v. Stearns (4 Cush. 60) 6 Lydon, W. U. Tel. Co. v. (82 Tex. 364) 432, 641 Lyman, W. U. Tel. Co. v. (3 Tex. Civ. App. 460) . 446, 448, 525, 526 Lynch r. Knight (9 H. L. C. 577) 656 , Southern Bell Telep. & Tel. Co. (20 S. E. Rep. 500) . . . 248 Lynn & Boston R. R. Co., Ellis v. (160 Mass. 341) . . 743, 745, 746 Lynn Gas & Elec. Co. v. Meriden Fire Ins. Co. (158 Mass. 570) . . 714 Ivi TABLE OF CASES CITED. M. SECTION MacAndrew v. Elec. Tel. Co. (17 C. B. 3) . . . 377, 453, 511, 517, 60-i Mackay v. W. U. Tel. Co. (16 Nev. 222) 588, 610 Mackenzie, Chesapeake & Potomac Telep. Co. v. (74 Md. 30) 104, 110, 114, 117 I^Iackie v. Brooklyn City R. R. Co. (30 N. Y. Supp. 539) ... 759 Madison, Rockebrandt v. (36 N. E. Rep. 444) 190 Magie v. Herman (50 INlinn. 424) 669 Magnetic Tel. Co., Laudsberger v. (32 Barb. (N. Y.) 530) . 580, 581 , Western Teleg. Co. v. 21 How. (U. S.) 456) 172 Maine Teleg. Co., Dickey v. (40 Me. 488 ; s. c. 43 Me. 492) ... 248 Manier r. W. U. Tel. Co. (94 Tenn. 442) 555, 615 Mansfield, W. U. Tel. Co. i-. (93 Ga. 349) 412 Manville t;. W. U. Tel. Co. (37 la. 214) . . 380, 383, 397-399, 401, 408, 513, 515, 530, 621 Marble City Elec. Light Co., Rutland Elec. Light Co. v. (65 Vt. 337) 159, 225 Marine Grain & Stock Exchange v. W. U. Tel. Co. (22 Fed. Rep. 23) 294 Marion & L S. Ry. Co., Powell?'. (92 Ga. 209) 107 Marion St. Ry. Co. v. Schaffer (36 N. E. Rep. 861) 727 , Sirk V. (39 X. E. Rep. 421) 724 Marion Water Supply, Elec. Light & Power Co., Badger Lumber Co. v., (48 Kan. 182) 275, 277 , V. (48 Kan. 187) 20, 24 Markel v. W. U. Tel. Co. (19 Mo. App. 80) 456, 457 Marr v. W. U. Tel. Co. (85 Tenn. 529) 377, 379, 382, 513, 535, 620, 621 Marshall Elec. Light & Power Co., Keating Implement & Mch. Co. V. (74 Tex. 605) 280 Martin v. W. U. Tel. Co. (1 Tex. Civ. App. 143) 446, 448, 456, 457, 615 , V. (9 111. App. 587) 588, 592 Martinsburg Bank v. Central Pa. Telep. & Supply Co. (150 Pa. St. 36) 314 Mason v. Minneapolis St. Ry. Co. (54 Minn. 216) 764 Mas.sachusetts, W. U. Tel. Co. v. (125 U. S. 530) . 12, 41, 54, 57, 789, 820, 834, 835, 840, 842 Massengale v. W. U. Tel. Co. (17 Mo. App. 257) 499, 540, 542, 553, 555, 559, 562 Masters v. Warren (27 Conn. 293) 633 lilattison v. Noyes (25 111. 481) 665, 072 Mauldin v. Greenville (33 S. C. 1) 21, 188, 190, 191 May V. W. U. Tel. Co. (112 Mass. 90) 426, 469, 470 , V. (27 S. W. Rep. 760) 422, 559 Maver, W. U. Tel. Co. v. (28 Oh. St. 521) 824 Mayor. W. U. Tel. Co. (112 N. C. 343) 289 McCormick v. Joseph (83 Ala. 401) 666 McCruden v. Rochester Ry. Co. (25 N. Y. Supp. 114; s. c. 28 lb. 113.5) if^e McDaniel, W. U. Tel. Co. o. (103 Ind. 294) 407, 409, 430 TABLE OF CASES CITED. Ivii SECTIOK McGee v. Consolidated St. Ry. Co. (GO N. W. Rep. 203) . . 70;i, loo McGuire, W. U. Tel. Co. r. (104 Ind. 130) 373, 371 McKaig V. Northern Pac. R. R. Co. (42 Fed. Rep. 288) .... 444 McKewen, Lake Roland Elec. Ry. Co. v. (31 Atl. Rep. 797) . . 7J1 McKibben, W. U. Tel. Co. r. (114 Ind. 511) 471 McKinney, Telegraph Co. v. (2 A\'ill. Ct. App. Cas. 047) . . . oW McLaurin, W. U. Tel. Co. v. (70 Miss. 20) . . • 357, 360, 363, 368 McLean, Stevenson v. (5 Q. B. Div. 346) 681, 682 McLeo.l, W. U. Tel. Co, r. (Tex. Civ. App.) (22 S. W. Rep. 988) 657, 663 McMillan, W. U. Tel. Co. v. (25 S. W. Rep. 821) 607 . , V. (30 S. W. Rep. 298) 660 M'Cordi;. W. U. Tel. Co. (39 Minn. 181) 424 Mechler, San Antonio St. Ry. Co. c (29 S. W. Rep. 202) . . 739, 750 , V. (30 S. W. Rep. 899) 740 Meek, W. U. Tel. Co. v. (49 Ind. 53) 380, 406, 407, 514 I^Ieggett V. W. U. Tel. Co. (69 Miss. 198) 626 Meischf;. Rochester Elec. Ry. Co. (25 N. Y. Supp. 244) .... 752 Melcliertu. Ainer. UnionTel. Co. (11 Fed. Rep. 193) 583 Memphis Bell Telep. Co. v. Hunt (Hi Lea (Tenn.) 4.jf]) .... 209 Memphis, Citv of. Citizens' St. Ry. Co. v. (53 Fed. Rep. 715) . . 159 MentzuL-r v. Vv. U. Tel. Co. (62 N. W. Rep. 1) . . . . 462, 464, 643 Mercantile Trust Co. v. Atl. & Pac. R. R. Co. (63 Fed. Rep. 513) 45, 170 Meredith, W. U. Tel. Co. v. (95 Ind. 93) 482, 484, 485, 488, 513, 514, 530, 540 Meriden Fire Ins. Co., Lynn Gas & Elec. Co. v. (158 Mass. 570) . 714 Merrill r. W. U. Tel. Co. (78 Me. 97) 5S2 , ,;.- (Tex. Civ. App.) (22 S. W. Rep. 826) . . . 398, 641 Metropolitan Grain & Stock Exchange v. Board of Trade (15 Fed. Rep. 850) 291, 294 Metropolitan Railroad Co., Atty.-Gen. r. (125 Mass. 515) 22, 23, 60, 105 Metropolitan St. Ry. Co., Shankenbery v. (46 Fed. Rep. 177) 720, 735, 736 , Slaughter r. (116 Mo. 269 1 725,788 Metropolitan Telep. & Teleg. Co. r. Colwell Lead Co. (50 N. Y. Supr. 488) , 112 , Elec. PowerCo. r. (75 Ilun (N. Y.) 68) 2."v3 ]\Ieyer, W. U. Tel. Co. v. (61 Ala. 158) 427 Michelson, W. U. Tel. Co. v. (21 S. E. Rep. 160) .... 485, 527 .Michigan Central R. R. Co., Saginaw Union St. Ry. v. (91 INIich. 657) 220 aiiddleton, Amer. Union Teleg. Co. v. (80 N. Y. 408) 277 :\ndl:ind Ry. Co., Lord r. (L. R. 3 C. P. 344) 385 IMillbury, Flagg i-. (4 Cnsh. 243) 360 Miller, Gulf, Col. & S. F. Rv- Co. v., s. c. sub nom. Gulf, Colorado & S. F. Ry. Co. r. Wilson, (69 Tex. 739) .... 409, 413, .525 , Woods V. (55 la. 168) 437 Milliken r. W. U. Tel. Co. (110 N. Y. 40.3) 454, 4.55 Alills, Detroit City Ry. v. (85 Mich. 634) 107, 100 :Millville, etc., St. Rv. Co., Allechanv City r. (150 Pa. St. 411) . . l-'l Milwaukee St. Ry. Co., Block L'. (6i N. W. Rep. 1101) .... 222 Iviii TABLE OF CASES CITED. SECTION :Minneapo]is, Xichols v. (33 ]\Iinn. 430) 253 ^linueapolis St. Ry. Co., Beardsley v. (54 Mnn. 504) . . . 769, 770 . .Masou V. (54 :Mimi. 21 G) 764 :Miim. & X. W. R. R. Co., Wilson v. (31 Minn. 481) . . 665, 669, 677 Minnesota Oil Co. r. Collier Lead Co. (4 Dill. (U. S.) 431) . 681, 682 Mirzan, ex;j«r/e (119 U. S. 584) 717 Missouri V. Bell Telep. Co. (23 Fed. Rep. 539) ... .18, 307, 311 Missouri Elec. Light & Power Co., Junior v. (29 S. W. Rep. 988) 266, 267 Missouri & Kan. Telep. Co., Hannibal v. (31 Mo. App. 23) , . . 159 Missouri Pacific Ry. Co., Wolfe v. (97 Mo. 473) 677, 678 Mizner, Doyle v. (42 Mich. 332) 36 Mobile, Port of, v. Leioup (76 Ala. 401) 41, 829 Mobile St. Ry. Co., Fidelity Trust & Safety Vault Co. v. (53 Fed. Rep. 6S7) 159 Mokelumne Hill Mining Co. v. Woodbury, (14 Cal. 424) .... 36 Monongahela City v. Mon. Elec. Light Co. (3 Pa. Dist Rep. 63) . 160 Monougahela Elec. Light Co., Monongahela City v. (3 Pa. Dist. Rep. 63) 160 Montgomery County Pass. Ry. Co., Pennsylvania R. R. Co. v. (31 Atl. Rep. 468) 109 jNlontgomery v. Lansing City Ry. Co. (61 N. W. Rep. 543) . 740, 741 Montgomery, etc.. Plank Road Co., City Council of Montgomery v. (31 Ala. 76) 87 ]\Iontgomery v. W. U. Tel. Co. (50 Mo. App. 591) 540, 542, 548, 550 Montreal Teleg. Co., Feaver v. (23 Up. Can. C. P. 150 ; 24 Up. Can. C. P. 258) 455, 460 , Kinghorne i;. (18 Up. Can. Q. B. 60) 446, 452, 626 , Lane v. (7 Up. Can. C. P. 23) 459, 574, 575, 578 , Stevenson v. (16 Up. Can. Q. B. 530) 446, 452, 459 , Watson r. (5 Leg. News, 87) 462, 504 ^loore V. Kansas City & I. R. Tr. Ry.(29 S. W. Rep. 9) .... 741 V. S. C. Forsaith Mcli. Co. (39 S. Car. 484) 689 r. W. U. Tel. Co. (87 Ga. 613) 417, 480 . V. (39 X. E. Rep. 874) 416 . V. (76 Tex. 66) 657, 660 Morgan v. Louisiana (118 U. S. 462) 46 V. People (59 Til. 58) 666, 669, 698 IMorris & Essnx R. R. Co. v. Newark (10 N. J. Eq. 352) .... 146 Morris, W. U Tel. Co. v. (77 Tex. 173) 664 :Moss, W. U. Tel. Co. v. (21 S. E. Rep. 63) 481 Mossier, W. U. Tel. Co. v. (05 Tnd. 20) 475, 481 Moulton V. Ker-shaw (59 Wise. 316) 682 Mowry v. W. U. Tel. Co. (51 Hnn (N. Y.) 126) .... 300, 409 iVrt. Adams & Eden Park Liclined Ry. Co. v. Winslow (3 Oh. Cir. Ct. Rep. 42.5) 107 Mt. Hope Iron Co., Perry v. (5 Atl. Rep. 632) 681. 689 ]\Tncrler v. Kansas (123 U. S. 623) 64 Mulhollaiid v. Thomson-Houston Elec. Co. (66 Miss. 339) .... 278 TABLE OF CASES CITED. llX 8ECTIOH Munford, Teleg. Co. v. (87 Tenn. 190) 447, -119 Mumiy. Illinois (94 U. S. 113) 308 Murphy v. Jack (142 N. Y. -215) <380 , Jenny Elec. Lights Power Co. r. (115 Ind. 5G6) . . 705,710 Mutual Teleg. Co,Dusenbury v. (11 Abbott (X. C.) 440) 102, 104, 110, 111 Mutual Union Tel. Co. v. City of Chicago (10 Fed. Kep. 309) . . -'0;i , Gay c. (12 Mo. App. 485) 110, 154, 199, 204, 205 , Lockie v. (103 111. 401) 1-"J Myers, Haas y. (HI 111. 421) G81, Gs3 V. Union Nat'l. Bank (27 111. App. 254) 695 N. ' National Bank v. National Bank (7 W. Va. 544) 437 National Telep. Co. v. Baker, L. R. 1893 (2 Ch. Div. 186) 213, 220, 221, 234 Nations, VV. U. Tel. Co. v. (82 Tex. 539) 641 Nebraska Nat'l Bank v. Burke (62 N. W. Rep. 452) 680 Nebraska Telep. Co., State ex rel. Webster v. (17 Neb. 126) . . IS, 318 V. York Gas & Elec. Light Co. (27 Neb. 284) 224 Neel, W. U. Tel. Co. v. (86 Tex. 368) 422 Neill W. U. Tel. Co. t;. (57 Tex. 283) 377, 380, 383, 386, 403, 407, 510, 512, 518, 536 Nelson, State v. (Ohio) (39 N. E. Rep. 22) 773 , V. (31 Wkly. Law Bui. 220) 773 Neuert v. Boston (128 Mass. 330) 254 Newark, Llateey v. (54 N. J. L. 102) 148, 183 , .Morris & Essex R. R. Co. v. (10 N. J. Eq. 352) 146 Newark Pass. Ry. Co. v. Block (27 Atl. Rep. 1067) 758 V. East Orange (31 Atl. Rep. 722) 232 Newark, State, Domestic Teleg. & Telep. Co. v. (49 N. J. L. 344) 27, 28. 146 Halsey v. (54 N. J. L. 102) 148, 183 New Bedford, Lawrence v. (160 Mass. 227) 201 New Eno-land Telep. & Teleg. Co., Commercial Union Teleg. Co. v. (G^ Vt 241) . 307, 308, 310 Newhouse, W. U. Tel. Co. v. (6 Tnd. App. 422) 412, 634 Newman v. Village of Avondale (31 Wkly. L. Bui. 123) . . . . lo8 r. W. U. Tel. Co. (54 Mo. App. 431) 633 New Orleans & C. R. R., Schneider v. (54 Fed. Rep. 466) . . . r._i) New Orleans. Elec. Traction & IMfir- Co. v. (14 So. Rep. 281) . . >oo New Orleans Gas Co. r. Louisiana Elec. Light Co. (115 U. S. 6o0) V>b New Orleans Gas Light Co. v. Hart (iO La. An. 474) . . • • • '--» V. Great Southern Telep. & Teleg. Co. (40 La. An. 41) 56, lo9, si-i New Orleans, Mobile & Texas R. R. Co. r. Southern & Atlantic Teleg Co (.53 Ala. 211) 6.41,101,1/0 Newport Light Co.. Citv of Newport V. (89 Ky. 454; S.C.S4 Ky. 166) 1<9 r. Newport (151 U. S. 527) Jl^ , V. (S9Ky. 454; SlKy. 166) 1'9 Ix TABLE OF CASES CITED. SECTION Newport v. Newport Light Co. (89 Ky. 454; 84 Ky. 186) .... 17!) . V. (151 U. S. 527) 179 Newport News & M. V. R. Co. r. Griffin (92 Teun. 691) .... 652 Newport St. Ry. Co., Elliott v. (28 Atl. Rep. 338) 720, 727, 730, 737, 738 , V. (31 Atl. Rep. 694) 730 , Taggart r. (16 R. I. 668) 22, 23, 107, 108, 183, 184 New York, Albany & Buffalo El. Mag. Tel. Co., DeRutte v. (I Daly (N. Y.) 547) 6, 446, 495, 574 New York, Albany & Buffalo Elec. Magnetic Teleg. Co., Leonard v. (41 N. Y. 544) 377, 434, 446, 452, 454, 455, 569, 574, 578, 582, 628, 630 N. Y. C. & H. R. R. R. Co., Dana v. (92 N. Y. 639) 444 New York Central & H. R. R. Co., Sheehan v. (91 N. Y. 334) . . 444 New I'ork & Chicago Grain & Stock Exchange v. Board of Trade (19 N. E. Rep. 855) 294 New York City & Northern R. R. Co. v. Central Union Teleg. Co. (21 Hun(N. Y.) 2G1) 119 New York & New Jersey Telep. Co., Broome v. (42 N. J. Eq. 141) 104, 110 , V, (49 N. J. L. 624) 131, 203 jj. Dexheiraer (11 N. J. Law Journ. 246) 259 v. East Orange (42 N. J. Eq. 490) 203 i;. State, Broome (50 N. J. L. 432) 131,203 , State, Winter v. (51 N. J. L. 8.3) 130, 131, 1.55 New York State Printing Teleg. Co., Byron v. (26 Barb. 39) 234, 266 New York & Washington Printing Teleg. Co., Birney v. (18 Md. 341) 7, 8, 379, 380, 404, 495, 520, 527, 604 V. Dryburg (35 Pa. St. 298) 6, 7, 377, 380, 384, 406, 462, 465, 466, 504-506, .541, 604 New I'ork, W. U. Tel. Co. v. (38 Fed. Rep. 552) . . . 41, 42, 46, 47 Nichols r. Minneapolis (33 Minn. 430) 253 Niemann i'. Detroit Suburban St. Ry. Co. (61 N. W. Rep. 519) (Mich.) 107, 114 Norfolk & Western R. R. Co., Postal Tel.-Cable Co. v. (88 Va. 920) 119, 120, 121 North Avenue Ry. Co., Koch v. (75 Md. 222) .... 23, 105, 107 , North Baltimore Pass. Ry. Co. v. (75 Md. 23.3) . . 102, 15.3, 176 North Baltimore Pass. Ry. Co. v. North Avenue Ry. Co. (75 Md. 233) 102, 153, 176 Northern Elec. Light & Power Co., Com. v. (145 Pa. St. 105) 29, 854 Northern Pacific R. R. Co. v. Charless (51 Fed. Rep. 567) ... 444 , McKaig I'. (42 Fed. Rep. 288) , . 444 Northwestern Telep. Co., Franklin v. (69 la. 97) 13, 16 Northwestern Telep. Exchange Co., Cater v. (Minn.) (63 N. W. Rep. Ill) 116 , Johnson v. (Minn.) (51 N. W. Rep. 22-5) 248 Northwest North Carolina R. R. Co., White i^. (113 N. C. 610) 23. 206 Noves, .ALattison v. (25 111. 481) 665. 672 Nunnallv, W U. Tel. Co. v. (86 Ga. 503) 564 Nussbaum v. W. U. Tel. Co (42 Leg. Int. 16) 431 TABLE OF CASES CITED. 1x1 O. SECTION O'Connor u. Pittsburg (IS Pa. St. 187) CO Oliio, etc., U. K. Co. c. Ridge (5 Blackf. (In.l.) 78) 37 O'Keefe, W. U. Tel. Co. v. (2U S. \V. Kep. 11;J7) 41s5 , Findhiy o. (04 Fed. Kep. 459) 504, 50G, 555, .561 , First Nat'l Bank of Barnesville v. (30 Oh. St. 555) . . 408, 577 . , Flood V. (i31 N. Y. 603) 234, 236, 266-209, 272 c. Fontaine (58 Ga. 433) 8, 377, 380, 386, 388, 394, 408, 510, 513, 535 V. Fore (26 S. W. Rep. 783) 600 , Fowler v. (80 :Me. 381) .377, 380, 382, 384, 397, 399-401, 403, 404, 409, 515 , Frauenthal v. (50 Ark. 78) 479, 486 , Frazer v. (84 Ala. 487) 571, 574, .578 , Freeman v. (93 Ga. 230) 585 V. Fremont (58 N. W. Rep. 415) 826 , Gahan i;. (59 Fed. Rep. 433) 045 , Garrett ?'. (S3 Iowa, 257) 525,527,011 V. Georgia Cotton Co. (21 S. E. Rep. 835) 422 V. Gidcumb (28 S. W. Rep. 699) 645 , Gillis V. (61 Vt. 461) . . . 377, 380, 383, 386, 510, 513, 530, 533 , Given v. (24 Fed Rep. 119) 411, 422 c. Godsey (Tex.) (16 S. W. Rep. 789) 664 i: Gougar (84 Ind. 176) 409, 477, 479, 480, 488, 489 I'. Graham (1 Col. 230) 397, 399, 513, 525, 530 , Gray w.(S7 Ga. 350) 352,353 , Green berg v. (89 Ga. 754) 488 V. Grilhn (1 Ind. App. 46) 357, 359, 362. 367, 488 V. Grigsby (29 S. W, Rep. 406) 643 -, GrinneU v. (113 Mass. 299) 7, 377, 380, 383, 380, 406, 453, 510, 512, 518, 004 V. Guernsey & Scudder Elec. Light Co. (46 Mo. App. 120) 41, 48, 140, 223 , Hadley r. ((115 Ind. 191) . 473, 486 V. Hall (124 U. S. 444) 570, 582, 620, 622, 629, 630 V. Unman (2 Tex. Civ. App. 100) 610 r. Hamilton (50 Ind. 181) -177 V. Harding (103 Ind. 505) 408, 421 , Harkness v. (73 la. 190) 409, 454, 455 r. Harris (19 111. App. 347) 380, 383, 406, 407, 513, 535, 606, 609, 073 , t?. (9 Phila. 88) 431, 504, 604 , Hart r. (66 Cal. 570) 379,382,512,518 , Hartstein v. (02 N. W. Rep. 412) 615 y. Hearne (77 Tex. 83) 403,407,512,518 , Heimann v. (57 Wise. 562) . . . 540, 542, 543, 545, 548, 553 i: Henderson (89 Ala. 510) .... 416, 453, 540, 560, 637, 643 , Henning v. (41 Fed. Rep. 864) 234. 24S , Herrou i-. (57 N. W. Rep. 696) 506, 543, 555, 557 Ixxviii TABLE OF CASES CITED. SECTION Western Union Telegraph Co., Hewett v. (4 Mackay, 424) . . 47, 114 , Hewlett V. (28 Fed. Rep. 181) 373, 374 , Ilibbard v. (33 Wise. 558) 380, 408, 513, 535, 582, 604, 622, 628, 629 , Hill V. (85 Ga. 425) 453, 540, 545, 559, 562 , V. (20 S. E. Rep. 135) 588, 593 V. (26 S. W. Rep. 252) 663 V. Ilinlde (3 Tex. Civ. App. 518) 371, 506, 507, 555 V. Hoffman (80 Tex. 420) . • 641 , Hollis V. (91 Ga. 801) 624 V. Hope (11 111. App. 289) . 400, 401, 408, 456, 457, 462, 464, 465 V. Hopkins (49 Ind. 223) 673 , Horn r. (88 Ga. 538) 416, 476, 489 V. Houghton (82 Tex. 561) 412, 414, 657, 662 V. Housewright (5 Tex. Civ. App. 1) 657 V. Howell (38 Kan. 685) 390, 394, 406, 407, 604 V. Huff (102 Ind. 535) 488 , Hughes r. (114 N. C. 70) 624 V. Ilutcheson (91 Ga. 252) 356, 357, 364 V. Hyer (22 Fla. 637) 594, 597, 598 , Ikard i-. (Tex. Civ. App.) (22 S. W. Rep. 534) 657 V. Inman & I. S. S. Co (59 Fed. Rep. 365) 273 V. James (90 Ga. 254) 51, 462, 464, 465, 485, 499, 549, 555, 625. 629 r. Jeanes(29 S. W. Rep. 1130) 660 V. Jobe (6 Tex. Civ. App. 407) 409, 410, 563, 657 , Johnston v. (33 Fed. Rep. 362) 542, 556, 557 , Jones c. (18 Fed. Rep. 717) (Ark.) . 386, 403, 407, 510, 512, 536 V. (95 Ind. 228) 453, 540, 543, 548, 550 V. (116 Ind. 361) 486 V. Jones (69 Miss. 658) 371 r- (81 Tex. 274) 447, 657, 660 — —, Julian r. (98 Ind. 327) 409,411 V. Karr (5 Tex. Civ. App. 61) 560, 657 V. Kemp (62 X. W. Rep. 541) 548 , V. (28 Neb. 661) 512, 518 V. Kendzora (77 Tex. 2.57) 640 , Kennon i'. (92 Ala. 399) 454, 457 , Kenyon v. (100 Cal. 454) 583, 619 , Kester t'. (55 Fed. Rep. 603) 645 — -, Kiley v. (109 N. Y. 231; s. c. 39 Hun, 158) 377, 495, 498, 512, 518, 526, 604, 628 V. Kilpatrick (97 Ind. 42) 488, 676 V. Kinney (106 Ind. 468) 473 V. Kinsley (28 S. W. Rep. 831) 559, 643 , Kirby v. (S. D.) (55 N. W. Rep. 7.59) 547 , V. (.57 N. W. Rep. 202; 60 N. W. Rep. 152) .... 488 u. Kirkpatrick (76 Tex. 217) 640,660 , Koons 1-. (102 Pa. St. 164) 409 V. Landis (21 Wkly. Not. Cas. 38) 462 , Langley v. (88 Ga. 777; s. c. 15 S. E. Rep. 291) . . 475, 481 TABLE OF CASES CITED. Ixxix SECTION Western Union Telegraph Co., Lassiter v. (89 N. C. 334) 510, 512, 518 , Lee V. (51 ^lo. App. 375) 402, 464, 405 , Lester v. (84 Tex. 313) 54U V. Levi (47 Ind. 552) 230 , Levy V. (35 Mo. App. 170) 620, 027 V. Liddell (08 Miss. 1) 571 c. Lieb (70 111. 172) 841 V. Lindley (02 Ind. 371) 412, 417 V. (89 Ga. 484 ; s. c. 15 S. E. Rep. 636) 075 V. Linn (20 S. W. Rep. 491) 600 , Logan r. (84 111. 408) 635 I'. Longwill (21 Pac. Rep. 339) 462, 504, 540, 557 , Lowery v. (00 N. Y. 198) 400, 571, 572, 032 V. Lowrey (32 Neb. 732) 512, 514, 518, 525, 605 V. Lydon (82 Tex. 364) 432 , v. (82 Tex. 361) 641 V. Lyman (3 Tex. Civ. App. 460) 446, 448, 525, 526 , Mackay v. (16 Nev. 222) 588, 010 V. Magnetic Teleg. Co. (21 How. (U. S.) 456) 172 , Manier v. (94 Tenn. 442) 5.55, 615 V. Mansfield (93 Ga. 349) 412 , Mauville v. (37 la. 214) 380, 383, 397-399, 401, 408, 513, 515, 530, 621 , Marine Grain & Stock Exchange i-. (22 Fed. Rep. 23) . . . 294 , Markel v. (19 Mo. App. 80) 456, 457 , Marr i'. (85 Tenn. 529) . . . 377, 379, 382, 513, 535, 620, 621 , Martin v: (1 Tex. Civ. App. 143) . . . 446, 448, 456, 457, 615 V. (9 111. App. 587) 588, 592 V. Mass. (125 U. S. 530) 12, 41, 54, 57, 789, 820, 834, 835, 840, 842 , Massengale v. (17 :Mo. App. 257) 499, 540, 542, 553, 555, 559, 562 , May D. (112 Mass. 90) 426,469,470 V (27 S. W. Rep. 760) 422, 559 V. Mayer (28 Oh. St. 521) 824 , Mayor. (112 X. C. 343) 289 V. IMayor of New York (38 Fed. Rep. 552) .... 41, 42, 46, 47 , M'cJrd V. (39 Minn. I8l) 424 V. McDaniel (103 Ind. 294) 407, 409, 430 V. ISIcGuire (104 Ind. 1-30) 373, 374 ». Mc-Kibben (114 Ind. 511) 471 V. McLaurin (70 Miss. 26) 357, 300, 363, 368 r. McLeod (Tex. Civ. App.) (22 S. W. Rep. 988) .... 657, 663 V. McMillan (25 S. W. Rep. 821) 667 V. (30 S. \\. Rep. 298) 660 r. Meek (49 Ind. 53) 380, 406, 407, 514 , Meggett r. (00 :\Iiss. 198) 020 , Mentzner v. (fl2 N. W. Rep. 1) 462, 464, 643 r. IMeredith (95 Ind. 93) . . 482, 484, 485, 488, 513, 514, 530, 540 r. Merrill. (Tex. Civ. App.) (22 S. W. Rep. 820) .... 398, 641 , V. (7S Me. 97) 582 JXXX TABLE OF CASES CITED. SECTION Western Union Telegrapli Co. v. Meyer (Gl Ala. 158) 4-27 I'. Michelson (21 S. E. Rep. 160; ' . . . 485, 527 . Milliken r. (110 N. Y. 403) 454,455 , Montgomery v. (50 Mo. App. 591) .... 540, 542, 548, 550 ' Moore v. (87 Ga. 613) 417, 489 v. (.39 N. E. Rep. 874) 416 V. (76 Tex. 66) 657, 660 V. Morris (77 Tex. 173) 664 t'. ]\Ioss (21 S. E. Rep. 63) 481 V. Mossier (95 Ind. 29) 475, 481 V. Muuford (87 Tenn. 190) 447, 449 , Mowry v. (51 Hun (N. Y.) 126) 390, 409 1-. Nations (82 Tex. 539) 641 V. Xeel (86 Tex. 368) 422 i: Neill (57 Tex. 283) . 377, BSD, 383, 386, 403,407, 510, 512, 518, 536 V. Newhouse (6 Ind. App. 422) 412, 634 , Newman v. (54 Mo. App. 434) 633 V. Nunnally (86 Ga. 50.3) 564 , Nussbaum V. (42 Leg. Int. 16) 431 V. O'Keefe (29 S. W. Rep. 1137) 416 , Pacific Postal Tel.-Cable Co. v. (50 Fed. Rep. 493) ... 41, 170 , Passmore v. (78 Pa. St. 238) . 6, 376, 380, 383, 386, 406, 4.58, 512, 518, 524, 604 V. Patrick (18 S. E. Rep. 980) 430 , Pearsall v. (124 N. Y. 256 ; 44 Hun, 532) . . 377, 380, 383, 406, 407, 452, 495, 496, 512, 518, 622 , Pegram?;. (97 N. C. 57; s. c. lOON. C. 28) 510,518 V. Pendleton (122 U. S. 347) 41, 51, 417, 484, 485 1-. (95 Ind. 12) 485 Penniman (21 How. (U. S.) 460) 172 , Pennington v. (67 la. 631) 455, 582 V. Pennsylvania (128 U. S. 39) 12, 41, 53, 819, 822 , PensacolaTel. Co. v. (96 U. S. 1) . 11, 41-45, 47, 51, 168, 169, 173 , Pepper v. (78 Tenn. 554) 608 . Peterson v. (-37 N. E. Rep. 810) 4bO , Philadelphia M. (40 Fed. Rep. 615) 56,833 i: Philadelphia (12 Atl. Rep. 144) 56, 833 ^ V. Phillips (2 Tex. Civ. App. 613) 540, 543, 544, 555 , Pinckney v. (19 S. C. 71) 7, 9, 377, 406, 407 V. Piner (1 Tex. Civ. App. 301; 29 S. W. Rep. 66) . 535, 560, 663 V. Toe (01 Fed. Rep. 449) 845 , Pope V. (9 111. App. 283; s. c. 14 HI. App. 531) . . 408, 409, 411, 412, 415 , Potts V. (82 Tex. 54.5) 641 V. Power (21 S. E. Rep. 51) 481 , Prather u. (80 Ind. 519) 99 , Primrose v. (154 U. S. 1) . 6-10, 350, 369, 391, 394, 395, 588, 59.3, 602-604 TABLE OF CASES CITED. Ixxxi BECTION Western Union Telegraph Co. v. Procter (6 Tex. Civ. App. 303) . OlJ , Public Grain & Stock Exchange r. (17 Fed. Rep. 830) . . . 294 , Railway Commissioners v. (113 N. C. 213) 51 t;. Riiins (03 Tex. 27) 540 , Rattennan v. (127 U. S. 411) 12, 41, 53, 819, 82l , Redpath i;. (112 Mass. 71) . . 3S0, 386, 453, 497, 498, 510, 512, 518, 004 I'. Reed (96 Ind. 195) 473, 484 , Reese v. (123 Ind. 294) 634, 643 V. Reeves (27 S. W. Rep. 318) 529 V. Reid (S3 Ga. 401) 023 , Reliance Lumber Co, v. (58 Tex. 394) 675 V. Reynolds (77 Va. 173) . 6, 7, 374, 377, 462, 464, 465, 513, 594, 000 V. Rich (19 Kan. 517) 108,123-125 , Ricli (;rain Distilling Co. r. (13 Ky. Law R. 256) . . . 582, 628 r. Ricliman (19 Wkly. Not. Cas. 509) 462, 504 V. Richmond (26 Gratt. (Va.) 1) 828 , Riley v. (26 N. Y. Suppl. 532; 28 N. Y. Suppl. 581) ... 518 V. Roberts (87 Ind. 377) 488 V. Robinson (29 S. W. Rep. 71) 621 V. Rogers (6S Miss. 748) 646, 664 , V. (78 Ind. 169) 357-359, 364, 307, 475, 483 ' V. (122 Ind. 305) 484 V. Rosentreter (80 Tex. 406) 410, 657, 600 r. Rountree (92 Ga. 611) 478 , Russell V. (3 Dak. 315) 646 V. Ryals (21 S. E. Rep. 573) 372 , San Francisco i-. (90 Cal. 140) 41, 54, 779, 834 V. Sattei-field (34 111. App. 386) 209 V. Scircle (103 Ind. 227) 409, 473, 489 V. Sheffield (71 Tex. 570) 613 , Sheldon i'. (51 Hun, 591) 236 , Sherrill v. (109 N. C. 527) .... 456, 457, 540, 548, 556, 635 V. Short (53 Ark. 434; 8. c. 14 S. W. Rep. 619) . . 383, 397-399, 406, 407, 512, 513, 530, 616, 617 V. Shotter (71 Ga. 760) 388, 394, 513, 530, 535, 086 V. Shumate (2 Tex. Civ. App. 429) .... 371, 416, 616, 617 V. Simpson (73 Tex. 422) 639 r. Smith (30 S. W. Rep. 549, 937) 6."0, 600 V. (26 S. W. Rep. 216) 446, 452 f. (76 Tex. 253) 582 V. (21 S. E. Rep. 106) 409, 430 -, I'. (150 Pa. St. 561) 631 ., „ (11 Fed. Rep. 1) 171 -, V. (83 Ky. 104) . . . 377, 380, 383, 384, 462, 464, 465, 513, 532, 535 ., V. (84 Kv. 604) 293, 353 -, i'. (84 Tex. 359) 448 -, Smith-Frazer Boot & Shoe Co. v. (49 Mo. App. 99j . . . 540, 543 / Ixxxii TABLE OF CASES CITED. SECTION Western Union Telegraph Co., Smithson v. (29 Md. 162) .... 452 . So Relle v. (55 Tex. 308) 643, 653-655 , Sprague v. (6 Daly (N. Y.) 200; s. c. 67 N. Y. 590) . 404, 527, 616, 618 , Squire v. (98 Mass. 232) . . 446-448, 452, 459, 570, 574, 576, 578, 622, 625, 628, 630 , Stameyr. (18 S. E. Rep. 1008) 350,374 V. State (64 N. H. 265) 860 V. State Board of Assessment (80 Ala. 273) 776, 823 , State ex rel. Railway Commissioners u. (113 N. C. 213). . . 51 , State V. (73 Me. 518) 818, 835, 836, 844 V. Steele (108 Ind. 163) 486, 487 1-. Stephens (2 Tex. Civ. App. 129) . 389, 394, 404, 429, 432, 641, 663 , Stephens & Condit Transportation Co. v. (8 Ben. 502) . . 273, 274 V. Stevens (16 S. W. Rep. 1095) 623 V. Stevenson (128 Pa. St. 442) 370, 604 , Stiles V. (15 Pac. Rep. 712) 424, 425 , St. Louis V. (148 U. S. 92; s. c. 149 U. S. 465; s. c. 39 Fed. Rep. 59) 41, 56, 830, 831, 832 , St. Louis V. (63 Fed. Rep. 68) 159, 832 , St. Louis V. (148 U. S. 92; 149 U. S. 465 ; 39 Fed. Rep. 59) . 41, 56, 830-832 '•. Stratemeier (39 N. E. Rep. 527) 643 V. (6 Ind. App. 125) 634 , Strause v. (8 Biss. U. S. 104) 428 , Stuart V. (66 Tex. 580) 643, 657, 662 , Siimmerfield v. (87 Wise. 10) 646 V. Swain (109 Ind. 405) 486 '•. Taylor (3 Tex. Civ. App. 810) 448, 449 V. Taylor (84 Ga. 408) 490 v. Teague (27 S. AV. Rep. 958) 416 f. Terrell 30 S. W. Rep. 70) 414, 559 V. Texas (105 U. S. 460) 12, 41, 51, 53, 818, 820 , Thomas v. (100 Mass. 150) 234, 248, 249 , Thompson v. (64 Wise. 531) . . . 383, 403, 407, 408, 530, 621 , f. (32 Mo. App. 191) •. . . . .356,364 , V. (30 S. W. Rep. 250) 414 , V. (106 X. C. 549; s. c. 107 N. C. 449) . 510, 513, 525, 530, 574, 578, 643, 649 , Thorp V. (84 la. 100) 411-413, 418 , Thurston v. (33 Fed. Rep. 362) 506, 507 V. Timmons (93 Ga. 315) 412 , Tobin V. (146 Pa. St. 375) 434 V. Trissall (98 Ind. 560) 415 V. Trumbell (Ind. 27 X. E. Rep. 313) 540, 552, 560 >:. Tyler (74 111. 168) 377, 380, 383, 515 ,,. (90 Va. 297) 51, 417 . V. (.54 Fed. Rep. 634) 644, 645 TABLE OP CASES CITED. Ixxxiil SECTION Western Union Telegraph Co., Tyler v. (GO 111. 421) 7, 377, 380, 3S2, 386, 397-30!J, 401, 403, 404, 40G, 407, 510, 513, 515, 530, 540, G04 V. Union Pacific Ry. Co. (3 Fed. Rep. 1) 158 , U. S. V. (50 Fed. Rep. 28) 158 , U. S. Tel. Co. V. (5G Barb. N. Y. 4G) 287, 288, 587 V. Valentine (18 111. Apj). 57) 408, 400, 610, 619 V. Virginia Paper Co. (87 Va. 418) 429, 433 , Wadsworth c (80 Tenn. 695) 0, 643, 650, 651 , Wahn I'. (37 Mo. 472) 386, 495, 512, 518, 521 , Walser f. (114 N. C. 440) 619 V. Ward (23 Ind. 377) 405, 479 V. Way (83 Ala. 542) 527, 551, 594, 59G , Wertzv. (Utah,27Pac. Rep. 172) 513,530 , West V. (39 Kan. 93) 454, 455, 636, 664 , Wilkins t-. (68 Miss. G) 475, 480 y. Williams (86 Va. GOG) 110,113 V Williford (2 Tex. Civ. App. 574; 22 S. W. Rep. 244) 574, 578, 605, 623 , Willingham v. (91 Ga. 449) 356, 357, 364 V. Wilson (93 Ala. 32) . . . 361, 367, 454, 455, 457, 637, 646 V. (32 Fla. 527) 588 V. (lOS Ind. 308) 350,475,540 V. Wingate (0 Tex. Civ. App. 394) 409, 422 j;. Wisdom (85 Tex. 261) 657 , W^olf i;. (G2 Pa. St. 83) 453, 495, 540, 541, 543, 560 , V. (19 S. E. Rep. 717) ^78 , Wolfskehl V. (40 Hun, 542) 462 , Womack v. (58 Tex. 17G) . 386, 403, 407, 497, 498, 512, 518, 642 l: (29 S. W. Rep. 932) 416,6.57,659 V. Wood (57 Fed. Rep. 471 ; 6 C. C A. 432) . . . 472, G45, 660 (;. Wright (18 111. App. 337) 431 V. Yopst (118 Ind. 248) 355, 357, 360, 304, 367, 453, 540, 551, 552, 502 V. Young (77 Tex. 245) 414 „. (93 i„d. 118) . . . . . . . 408, 409, 482, 513, 514 , V. (65 N. Y. 103) 510, 559. 561 , V. (107 N. C. 370) G, 409, 456, 457, 643 V. Zane (6 Tex. Civ. App. 586) 657 Whipple, Ilowley v. (48 N. II. 487) 672 Whitcomb, Cincinnati St. Ry. Co. v. (66 Fed. Rep. 915) . . 741, 758 White V. Northwest North Carolina R. R. Co. (113 N. C. 610) 23, 206 Whittemore, Kankakee Elec. Ry. Co. v. (45 111. App. 481) ... 751 Wilcox V. R. R. Co. (52 Fed. Rep. 264) 633 AVilkesbarre & West Side St. Ry. Co., Central Pa. Telep. Supply Co. V. (Pa. Com. PI.) (11 Pa. Co. Ct. Rep. 417) 13, 15, 28, 213, 217, 222 Wilkesbarre, etc. St. Ry. Co., Gibbons v. (155 Pa. St. 279) 739, 740, 746 Wilkins I'. W. U. Tel. Co. (68 Miss. 6) 475, 480 Williams v. Brickell (37 Miss. 082) 6^6 Ixxxiv TABLE OP CASES CITED. SECTIOW Williams v. City Elec. St. Ily. Co. (11 Fed. Eep. 556) .... 107 V. Edison Elec. llhimiiiating Co. (IG N. Y. S. 857) .... 280 V. Reyuolds (18 Eug. Com. L. 493) 629 , W. U. Tel. Co. V. (SO Va. G9G) 110, 113 Williamstown, Canning i-. (1 Cush. 452) G33, 656 Williford, W. U. Tel. Co. v. (2 Tex. Civ. App. 574; 22 S. W. Rep. 244) 574, 578, 6U5, 623 Willingham v. W. U. Tel. Co. (91 Ga. 449) 356, 357, 364 AVillis V. Erie Teleg. & Telep. Co. (37 Minn. 347) .... 110, 232 Wilson V. Brett (11 M. & W. 113) 385 , Gulf, Col. & Santa Fe. Ry. Co. v. (69 Tex. 739) ; s. c. sub nom. Gulf, Col. & S. F. Ry. Co. r. Miller (69 Tex. 739) 407, 413 525 Wilson V. Minn. & N. W. R. R. Co. (31 Minn. 481) . . 66.1, G69, 677 , W. U. Tel. Co. V. (93 Ala. 32) 361, 367, 454, 455, 457, 637, 646 , V. (32 Fla. 527) 588 , V. (108 Ind. 308) 350, 475, 540 Wilt, Telegraph Co. v. (11 Am. Law Journ. 374) 259 Wingate, W. U. Tel. Co. v. (6 Tex. Civ. App. 394) . . . 409, 422 Winslow, Mt. Adams & Eden Park Inclined Ry. Co. v. (3 Oh. Cir. Ct. Rep. 425) 107 Winter v. Cross Town St. Ry. Co. (8 Misc. Rep. (N. Y.) 362). . . 742 V. Federal Street & Pleasant Valley Pass. Ry. Co. (153 Pa. St. 26) 766 Wisconsin Telep. Co., Jackson v. (88 Wise. 243) 257 V. Oshkosh (62 Wise. 32) 13, 15, 28, 41, 829 , Roberts v. (77 Wise. 589) 13, 16 Wisdom, W. U. Tel. Co. v. (85 Tex. 261) 657 Woburn Elee. Light Co., Harriman v. (163 Mass. 85) 277 Wolf V. W. U. Tel. Co. (62 Pa. St. 83) . . 453, 495, 540, 541, 543, 560 V. (19 S. E. Rep. 717) 478 Wolfe V. Erie Teleg. & Telep. Co. (33 Fed Rep. 320) 200 V. Missouri Pacific Ry. Co. (97 Mo. 473) 677, 678 Wolfskehl V. W. U. Tel. Co. (46 Hun, 542) 462 Womack v. W. U. Tel. Co. (58 Tex. 176) 386, 403, 407, 497, 498, 512, 518, 642 , V. (29 S. W. Rep. 932) 416, 657, 659 Wood, Trevor v. (36 N. Y. 307) 681 , W. U. Tel. Co. V. (57 Fed. Rep. 471 ; 6 C. C. A. 432) 472, 645, 660 Woodbury, Mokelurane Hill Mining Co. v. (14 Cal. 424) .... .36 Woodlock, Houston City Ry. Co. v. (29 S. W. Rep. 817) 740, 741, 750 Woods V. Miller (55 la. 168) 437 Woughter, Southwestern Teleg. & Telep. Co. v. (56 Ark. 206) 234, 236, 266, 267, 269, 271 Wright, W. U. Tel. Co. v. (18 111. App. 337) 431 Y. Yarmouth, Young v. (9 Gray, 386) 154, 201 Yates, V. Southwestern Brush Elec. Light & Power Co. (40 La. An. 467) 705 TABLE OF CASES CITED. IxXXV BECTIOS Yingst V. Lebanon & A. «t. Ry. Co. (31 Atl. Rep. 087) .... 740 Yopst, W. U. Tel. Co. t-. (lib Ind. 248) 355, 357, 3(J0, 304, 307, 453, 540, 551, 552, 562 York Gas & Elec. Light Co., Nebraska Telep. Co. v. (27 Neb. 284) 224 York, Jefts r. (10 Ciish. 302) 420 Young r. Atlantic Avenue Ry. Co. (31 N. Y. Suppl. 441) . . . 704 V. W. U. Tel. Co. (05 N. Y. 103) 540, 559, 501 V. (107 N. C. 370) C, 409, 450, 457, 043 f. (77 Tex. 245) 414 r. (93 Ind. 118) 408,409,482,513,514 V. Yarmouth (9 Gray, 380) 154, 201 Z. Zane, W. U. Tel. Co. v. (6 Tex. Civ. App. 586) 657 Zopfi, Postal Tel.-Cable Co. v. (00 Fed. Rep. 987) 237 THE LAW OF ELECTRICITY. BOOK I. INCORPORATION AND FRANCHISES. CHAPTER I. INTRODUCTORY. § 1. Introduction. 2. General Characteristics. 3. The Telegraph. 4. Public Character of the Telegraph. England. 5. Public Character in the United States. 6. Test of Public Character. 7 A Telegraph Company not a Com- mon Carrier. 8. Telegraph Company not a Bailee for Hire. 9. Bailee lucatio operis faciendi. 10. True position of the Telegraph Company. 11. Federal Franchise. 12. Opinion iu Pensacola Tel. Co. v. W. U. Tel. Co. § 13 14 Telephone is a Telegraph. Enirlish case. Attv.-Gen. v. Edi- son Telegraph Company. Wisconsin case. Wisconsin Tele- grajih Company v. Oshkosh. Telephone a Telegraph, continued. 17. Telephone a Telegraph, continued. 18. Telephone is a Public Use. Electric Light. General View. Electric Light a Public Use. Municipal Ownership of Electric Lighting Plants. Electric Eailway a Public Use. 23. Electric Railway different from Steam or Horse Railway. 24. Public Distinguished from Muni- cipal Corporation. 25. Summary. 15. 16. 19. 20. 21. 22. § 1. Introduction. — The application of electricity to various commercial purposes and to practical uses began in the early years of this century, and has rapidly grown until at the present time, in its various forms, it has become a necessary part of most important transactions of the busi- ness and social world. In the order of priority of time of these applications, it may be said that the telegraph comes first, the electric light next, the telephone third, the electric 1 2 THE LAW OF ELECTRICITY. railway fourth, while the applications of electricity to pro- duce power and heat have been developed at various times during the whole period. All these new commercial uses of electricity have from time to time come before the courts in numerous litigations, and the decisions in these cases have produced a large body of new rules of law, or more strictly, new applications of old rules to changed circumstances, which form a substantial addition to the sum total of the common law. Moreover, the important and novel character of these electrical uses has rendered necessary the passage of numerous statutes regulating their introduction and opera- tion, and these statutes have formed a substantial addition to the statutory law. It is the purpose of this work to collect in an orderly arrangement this law relating to elec- tricity both as settled by the decisions of the courts and as enacted in the statutes, so as to present a substantially complete statement of this branch of the law as it stands at the present day, excepting, however, the Patent Law Cases, which are so essentially different as to require a separate treatise. § 2. General Characteristics. — Before going into the de- tailed statement of the law relating to electrical uses and appliances, it will be advantageous to take a summary view of certain main characteristics of these new appliances and their relations to the business and social world, as fixed by the various decisions of the courts and by the statutes, to see how far they have been assimilated to previously existing modes of doing business, and how far they have rendered necessary the introduction of new principles and stand by themselves differing essentially from anything previously known to the law. In taking this summary view, the four leading branches of applied electricity will be considered separately, i e., the Telegraph, the Telephone, the Electric Light, and the Electric Railway; but in the remainder of this work it will be possible in many cases to combine all INTRODUCTORY. 3 these together, or one or more, owing to the similarity of the subject-matter. § 3. The Telegraph. — The telegraph, being the first of the electric a])i)liances in point of time to ^\•hich the courts and legislatures gave their attention, naturally comes first in the consideration of the general characteristics of the various electrical uses. § 4. Public Character of the Telegraph. England, — A dis- tinguishing characteristic of telegraphy in its most import- ant development, is that it is a public employment, and those corporations which engage in it possess all the powers and rights, and are subject to all the duties, which appertain to such an employment. This was not the case in England when the telegra})!! was first introduced there; but it had not been long in operation in that country before its great importance to the jjublic was appreciated, and statutory authority was given the Postmaster-General to acquire such telegraph lines a^ he might deem for tjie public interest, and constitute them one of the departments of his office.^ Even now, however, it may be questioned whether the English courts would adopt in its fullest extent, as established in the United States, the doctrine of the public character of the telegraph business. ^ § 5, Public Character of Telegraphy in the United States. — - In the United States, however, the public character of the business of telegraphy has been recognized from its earliest introduction, and Itoth the courts and the legislatures have combined by decision and statute to impress u])on the busi- ness of telegraphy all the characteristics of public employ- ments. The characteristic features thus given to a corporation carrying on the business of telegraphy are its power to con- demn a right of way for the construction of its line by right 1 See Atty.-Gen. r Edison Telephone Co., 6 Q. R. Div. L>44. ^ See Playford v. United Kingdom Electric Telegraph Co.. L. R. 4 Q. B. 706; Dickson v. Reuter's Telegraph Co., L. R. 2 C. P. Div. 02. 4 THE LAW OF ELECTRICITY. of eminent domain; its right to prescribe reasonable rules and regulations for the conduct of its business ; its obliga- tions to serve the public without discrimination, to charge equal rates to all, and to transmit messages with promptness and care. The decisions and statutes which affix these rights and obligations to the telegraph companies, and stamp the business with its public character, are principally those in which the acquirement of rights of way by the telegraph companies and the transmission of despatches are concerned, and are considered fully in subsequent chapters.^ § 6. Test of Public Character. — The test of the public char- acter of the business which has been applied to telegraphy, and by Avhich it is decided that the employment is a public one, is the principle that if a business is a benefit and advan- tage to the public, and the person or corporation engaged in it is under a legal duty to serve the public at large, or such portion of it as may choose to avail itself of the privilege, then the business is a public one.^ Tested by this principle, the business of telegraphy is obviously a public business.^ The advantage and l:)cnefit to the public is obvious. The duty to serve the public is in most States expressly enacted by statute ;* but where it is not expressed, the courts infer it from other statutory provisions relating to the busi- ness, such as the obligation to establish and keep open offices, to transmit messages with diligence and without dis- crimination, to charge only limited prices for transmission, and the power to take private property for telegra.phic uses;^ ^ Post, cc. iv., v., vi., vii., xiv., et i^erj. 2 State, Trenton & New Brunswick Turnpike Co. v. American & Euro- pean Commercial News Co., 43 N. J. L. 381; Lumbard v. Stearns, 4 Cush. GO. 3 New Orleans, i\Iobile & Texas Ry. Co. v. Southern & Atlantic Tele- graph Co., 53 Ala. 211. * See statutes, in/?-a, cc. xiv., xv. * State, Trenton & New Brunswick Turnpike Co. v. American & Euro- pean Commercial News Co., 43 N. J. L. 381. INTRODUCTORY. 5 and it has been held that even if this duty to serve the public is neither expressly imposed by statute nor implied in other statutory provisions, yet since the telegraph has become so essential to the transaction of the business of the country, the implication is very strong that the legislature, in grant- ing a telegraph company its corporate franchise, intends to charge the company with a duty to the iniblic.^ These special powers and duties remove the business of telegraphy at once out of the class of ordinary private employments, and make it a public employment to be carried on with a view to the general benefit and for the accommodation of the community, and not merely for private emolument and advantage, and the person or corporation owning or mana- ging a line of telegraph becomes to a certain extent a public servant or agent,^ and analogous in legal position to those carrying on other public employments, viz., common carriers, and light, gas and water companies, and other similar public conveniences.^ The various rights and obligations arising out of this pul)lic character of the telegraph business, to wit, tlie power of acquiring the right of way for the telegraph line by the right of eminent domain, the obligation to serve the public without discrimination and with care and at fair and regular prices, will be discussed separately later. ^ ^ State, Trenton & New Brunswick Turnpike Co. r. American & Euro- pean Commercial News Co., 43 N. J. L. 381. 2 Ellis V. American Telegraph Co., 13 Allen, Mass. 22G, 231. 3 Primrose v. Western Union Telegraph Co., 154 U. S. 1, M ; Western Union Telegraph Co. v. Reynolds, 77 Va. 173, 183 ; Wadsworth i'. Western Union Telegraph Co., 86 Tenn. 69."), 706 ; Young r. Western Union Tele- graph Co., 107 N. C. 370, 372; New York & Washington Printing Tele- graph Co. V. Dryburg, 35 Pa. St. 298, 302 ; Passmore i-. Western Union Telegraph Co., 78 Pa. St. 242 ; DeRutte v. New York, All)any & Buffalo Magnetic Telegraph Co., 1 Daly, 547, 558; Bartlett v. Western Union Telegraph Co , 62 Me. 209. 217 ; Western Union Telegraph Co. v. Cavpw, 15 Mich. 525, 532; Sweatland v. Illinois & ^lississippi Telegraph Co., 27 Iowa, 433, 452; Parks t*. Alta California Telegraph Co., 13 Cai. 423, 424. * ^QG post, cc. iv., v., vi., vii., siv. , el seq. THE LAW OP ELECTRICITY. S T. A Telegraph Company not a Common Carrier. — The public character of the employment of telegraphy being settled, the courts endeavored in the earlier decisions to rano-e telegraph companies in one of several existing classes of public employments. The most obvious analogy, and the one which has been urged upon the courts with great per- sistency in many telegraph cases, especially in the earlier ones, was that of a common carrier. There are many points of resemblance between telegraph companies and common carriers. The obligation of giving the public efficient ser- vice, and fixing regular and fair rates of tariff, as well as the rio-ht of eminent domain, assimilated them very closely to the largest and most important branch of common carriers, I e., railroad companies. Moreover, the telegraph grew up with railroading, and is a necessary part of and constructed along the railway line. Most important of all, however, in bringing the telegraph companies close to railroad companies or other common carriers was the introduction by telegraph companies of a printed blank form upon which the telegram was to be written, and which contained certain stipulations intended to limit the liability of the telegraph company in cases of error or delay in the transmission or delivery of the message. These stipulations were very similar to stipula- tions adopted by common carriers to limit their liability in similar instances, and being brought before the courts in many early cases, while the position of the telegraph com- pany was still uncertain, had great effect in supporting the arguments of those who contended that the telegraph com- pany was, in the eye of the law, a common carrier. The courts, however, have rejected this theory of the status of the telegraph company in the very important class of cases where the liability of telegraph companies for negligence in the transaction of their business is concerned. This liability " will be discussed at length later,i and it is sufficient here to 1 See post, cc. xxv. , xxvi. INTRODUCTORY. 7 say that, with the exception of a few early cases, of which one in California is the strongest,^ and some dicta^ the courts have unanimously declared that the telegraph company is not a common carrier, although it occupies a position in many respects analogous to it in the law.^ The difference between the employment of the common carrier and of the telegraph company is very wide. A common carrier has the exclusive possession and control of the goods to be carried, with peculiar opportunities for embezzlement or collusion with thieves, as well as with peculiar facilities for the pro- tection and safeguard of the goods intrusted to him. The identity of the goods received by the carrier with those delivered to the consignee is capable of easy identification, and cannot be mistaken. Their value may be readily esti- mated with a view to ascertaining the amount of care which should be exercised by the carrier while the goods are in transit, and may be ascertained by inquiry of the consignor and the carrier's compensation fixed accordingly, and his liability in damages is measured by the value of the goods. On the contrary, the telegraph company is intrusted with nothing but certain words or characters, and these words or characters are to be transmitted by symbols over the wires through the aid of electricity. This transmission is done by delicate instruments peculiarly subject to atmospheric dis- turbances or other injury, and over long stretches of wire which, in the nature of things, cannot be at all times under the care and supervision of the telegraph company. The 1 Parks I'. Alta California Telegraph Co., 13 Cal. 422. 2 Primrose v. Western Union Teleo;raph Co., 154, U. S. 1 ; Birney v. New York & Washington Printing Telegraph Co., 18:Md. 341, 357; West- ern Union Telegraph Co. v. Carew, 15 Mich. 525, 532 ; Grinnell i'. West- ern Union Telegraph Co., 113 Mass. 299, 301 ; Ellis v. American Telegraph Co., 13 Allen, 226, 232 ; True r. International Telegraph Co., 60 Me. 9 ; Bartlett v. Western Union Telegraph Co., 62 Me. 209; Breese v. United States Telegraph Co., 4S N. Y. 132, 140 ; Telegraph Co. v. Criswold, 37 Oh. St. 301, 310 ; New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298; Tyler v. Western Union Telegraph Co., 60 111. 421, 427. 8 THE LAW OF ELECTRICITY. symbols transmitted cannot be the subject of embezzlement, and are of no intrinsic value, and the importance of the message itself cannot be estimated by the sender nor ordi- narily disclosed by him without danger of defeating his own purposes. The information contained in the message may become wholly valueless if not forwarded immediately, and the measure of damages has no relation to any value which can be put on the message itself.^ These reasons have influ- enced the courts in deciding that a telegraph company is not a common carrier. It must be admitted, however, that there is a great and close analogy between the two which displays itself in other points than that of liability for the transmission of goods, such, for instance, as the obligation to serve the public alike without discrimination, ^ and the power to acquire private property by the right of eminent domain.^ § 8. Telegraph Company not a Bailee for Hire. — In a few cases the courts, led by the fact that they could not assimi- late the liability of telegraph companies for negligence in transmitting a message to the liability of a common carrier for negligence in the transportation of goods, have endeavored to assimilate the employment of a telegraph company to that of an ordinary bailee for hire; that is, that while not an 1 Grinnell v. Western Union Telegraph Co., 113 Mass. 301 ; Primrose V. We.stern Union Telegraph Co., 154 U. S. 1. 2 Delaware & Atlantic Telegraph & Telephone Co. v. State, 50 Fed. Rep. 677; Smith v. Gold & Stock Telegraph Co., 42 Huti (N. Y.) 454 ; Telegraph Co. v. Griswold, 37 Oh. St. 301 ; Baldwin v. United States Telegraph Co., 1 Lansing, 125; Western Union Telegraph Co. v. Reynolds, 77 Va. 173; see post, cc. xiv., xv. 8 Telegraph Co. v. Griswold, 37 Oh. St. 301; Pinckney r. Western Union Telegraph Co., 19 S. C. 71; see post, cc. v. vi. It may be noted here that a district messenger company which has its call boxes placed round in various places and supplies messengers is a public carrier, and the call boys who carry packages or notes at the call of customers are the agents of the company, and if they lose packages entrusted to them, the company is responsible. Sanford v. American District Telegraph Co., 27 N. Y. Suppl. 142. INTRODUCTORY. 9 insurer like the common carrier, it is liable for negligence in the transaction of its business.* This view is based upon the assumption that the sender of a telegraph message bails or entrusts it to the telegraph company for a certain purpose, and the telegraph comi)any accomj)lishes this purpose by doing certain work and bestowing certain care upon the thing bailed for a stipulated reward. This analogy has the advantage that the liability of the telegraph company and of the bailee for hire for the conduct of their business is the same; that is, a liability simi)ly for negligence and not as an insurer; but on the other hand, in addition to the differ- ences set forth above as to the nature of the occupation, in considering the analogy of the common carrier, ^ there is a further radical difference in the fact that the ordinary bailee for hire is not engaged in a public employment, he may accept or refuse such employment as is offered to him, and is under none of the obligations, and has none of the powers that appertain to the telegraph company by virtue of its public employment It has been definitely asserted by the Supreme Court of the United States, in a somewhat recent case, that a telegraph company is not a bailee. ^ § 9. Bailee locatio operis faciendi. — In view of the abovc difliculties, the court, in at least one case, has held that a telegraph company, as to the work which it engages to do, belongs to the class of bailment which is styled locatio operis faciendi;^ but, as before said, the Supreme Court of the United States has explicitly decided that this is not the situation of the telegra}»h company.^ § 10. True Position of the Telegraph Company. — The result of the decisions is clearly that the telegraph company occupies 1 Western Union Teleefraph Co. v. Fontaine, 58 Ga. 433 ; Birney i^. New York & Washington Printing Telegraph Co., 18 Md. 341. " Supra, § 7. * Prinirose r. Western Union Telesjraph Co., 154 U; S. 1. * Pinckuej- r. Western Union Telegrapli Co., 10 S. C. 71. ^ Primrose v. Western Union Telegraph Co., 154 U. S. 1. 10 THE LAW OF ELECTRICITY. a position of its own in the eye of the law; that it is not a common carrier, nor is it a bailee, and that the courts will appiv (as they have in fact done) from time to time such appropriate rules of law from analogous departments as seem to them best calculated to carry out in detail the general public character of the telegraph company. No better sum- mary of this branch of the subject could be made than is contained in the opinion of the Supreme Court of the United States in the case of Primrose v. Western Union Telegraph Company,! where the court says, "Telegraph companies resemble railroads and other common carriers in that they are instruments of commerce, and in that they exercise a public employment, and are bound to serve all customers alike without discrimination. They have doubtless a duty to the public to receive to the extent of their capacity all messages clearly and intelligibly written, and to transmit them upon reasonable terms. But they are not common carriers. Their duties are different, and are performed in different ways, and they are not subject to the same liabili- ties. . . . Telegraph companies are not bailees in any sense. They are entrusted with nothing but an order or message which is not to be carried in the form in which it is received, but is to be translated and transmitted through different symbols by means of electricity, and is peculiarly liable to mistakes. The message cannot be the subject of embezzle- ment; it is of no intrinsic value. Its importance cannot be estimated except by the sender, and often cannot be dis- closed by him without danger of defeating his purpose. It may be wholly valueless if not forwarded immediately, and the measure of damages for a failure to deliver it has no relation to the value of the message itself except as such value may be disclosed by the message or be agreed between the sender and the company." § 11. Federal Franchise. — A very peculiar feature of the ^ 154 U. S. 1. INTRODUCTORY. 11 position of telegraph companies, and one which will be found to exercise a great effect upon the development of the law as apjilicd to them, is their possession of what may be called a federal franchise, whereby telegrajih companies are differentiated even from the ordinary public occupations to which they have been likened heretofore.^ This franchise is contained in an act of the United States Congress passed in the year 1866,2 ^nd now contained in the United States Revised Statutes.^ By this act in substance all telegraph companies which accept its provisions by a writing filed with the postmaster-general are given the right to set their poles and string their wires over all the post roads of the United States, and are obliged in return to transmit messages for the federal government. The detailed effects of this act will be discussed later;* but the general effect has been to add two novel features to the telegraph business, and to make it both an accredited agent of the federal government and a means of interstate commerce, thus putting the tele- graph at once under the special protection of the federal government, and in many ways bringing telegraphic com- munications within the scope of that section of the federal constitution which vests in Congress alone the right to reg- ulate commerce among the several States.^ The conse- quences of this act are far reaching in various matters relat- ing to telegraph companies, such as the prohibition of exclusive franchises to any one telegraph company, the pro- hibition of State taxes upon interstate telegraphic business, and the prohibition of extra-territorial effect to State statutes regarding the business of telegraphy. These various effects will be discussed later.^ The case in wliieh this act was first construed and telegraph companies first taken under the special protection of the federal courts is Pensacola 1 Supra, §§ 7-10. ^ Act of July 24, 1866. « U. S. R. S. §§ 5203 e( seq. ^ See ;5a<;^ c. iii. * Constitution of the United States, Art. 1, § 8. * See post, c. iii. 12 THE LAW OP ELECTRICITY. Telegraph Company v. Western Union Telegraph Company,^ a case in the Supreme Court of the United States, and a quotation from the opinion of Mr. Chief Justice Waite gives the clearest possible statement of this position. § 12. Opinion in Pensacola Telegraph Company v. Western Union Telegraph Company. — '' The electric telegraph marks an epoch in the progress of time. In a little more than a quarter of a century it has changed the methods of business, and become one of the necessities of commerce. It is indis- pensable as a means of intercommunication, but especially is it so in commercial transactions. ... It is important, not only to the people, but to the government. By means of it the heads of the departments at Washington are kept in close communication with all their various agencies at home and abroad, and can learn at almost any time by inquiry what is transpiring anywhere that affects the interests they have in charge. Under such circumstances it cannot be for a moment doubted that this useful agency of commerce and intercommunication comes within the controlling power of Congress fairly as against hostile State legislation. . . . The statute of July 24, 1866, in effect amounts to prohibition of all monopolies in this particular. It substantially declares, in the interest of commerce and the convenient transmission of intelligence from place to place by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as such interference is concerned, be free to all who will submit to the condition imposed by Congress, and that corporations organized under the laws of one State for constructing and operating telegraph lines shall not be excluded by another from prosecuting their business within its jurisdiction if they accept the terms proffered by the national government for this privilege. To this extent cer- tainly the statute is a legislative regulation of commercial intercourse among the States, and is appropriate legislation 1 96 U. S. 1. INTRODUCTORY. 13 to carry into execution the powers of Congress over inter- state commerce. It gives no foreign corporation the right to enter upnn private projjerty without the consent of the owners, and erect the necessary fixtures for its business; but it docs i)rovide that when the consent of the owner is obtained, no State legislature shall prevent the occupation of post roads for telegraph purposes by such companies as are willing to avail themselves of its privileges." ^ § 13. Telephone is a Telegraph. — Taking up now the Con- sideration of the general characteristics of the telephone, we find that the introduction of the telephone gave rise to a series of decisions in regard to the legal position of the tele- l)hone in relation to other electrical appliances. Its obvious similarity to the telegraph in .main features of construction and operation led the courts at once to consider this analogy, the only difference in the two systems being in the terminal instruments. These instruments are wholly different in construction and principle, but are in fact operated by the same agency, — electricity. The striking similarity between the two systems induced the courts to decide from the earliest cases that the telephone is, in effect, a species of telegraph, and comes under the same general rules of law as the earlier instrument. 2 The decisions have not been numerous enough ^ See also, Western Union Telegraph Co. v. Texas, 105 U. S. 460; Western Union Telegraph Co. v. Atty.-Gen., 125 U. S. 530; Ratterman v. Western Union Telegraph Co., 127 U.S. 411; Leloup v. Mobile, 127 U. S. 610; Western Union Telegraph Co. r. Pennsylvania, 128 U. S. 39; West- ern Union Telegraph Co. v. Alabama, 132 U'. S. 472. 2 Atty.-Gen. v. Edison Telephone Co., 6 Q. B. Div. 244 ; Wi.sconsin Telephone Co. v. Oshkosh, 62 Wis. 32; Central Pennsylvania Telephoned: Supply Co. V. Wilkesbarre & West Side Street Railway Co., 11 Pa. C. C. 417; Chesapeake & Potomac Telephone Co. v. Bait. & Oh. Telegraph Co., 66 Md. 399; Telephone Co. v. Board of Equalization, 67 la. 250; Roberts v. Wis- consin Telephone Co., 77 Wise. 589; Franklin v. North^\estern Telephone Co., 69 la. 97 ; Com r. Pennsylvania Telephone Co., 42 Lea. Int. l^'O; Cum- berland Telephone & Telegraph Co. v. United Electric Railway Co., 42 Fed. Rep. 273; State, Duke v. Central New Jersey Teleplione Co., 53 X. J. L. 341 ; Roako V. American Telegraph & Telephone Co., 41 N. J.Eq. 35. 1-4 THE LAW OF ELECTRICITY. as yet to follow out this analogy in all points, but they have covered so many main features that the analogy is now well fixed, and it may safely be asserted that in ap})lying the principles of the common law or in construing the statutes, unless express statutory provision governs the case other- wise, the telephone is to be considered a telegraph, and what has been said previously of the legal position of the telegraph applies to telephones as well.^ § 14. English Case. Attorney-General v. Edison Telephone Company. — An important case in which this question was brought up in England is Attorney-General v. Edison Tele- phone Company.^ In England the telegraph system is now, as has been said,^ made subject to governmental ownership and control, the postmaster-general being the official who has the government business of telegraphy in his department. The attorney-general, at the instance of the postmaster- general, brought an information against a telephone company for a penalty, the ground for this information being alleged to be that the telephone was in reality a telegraph, and therefore should be under the control of the postmaster- general's department. The court discussed the question at great length of whether a telephone line is a telegraph line or not, and decided that it was; that the main features of construction and operation were identical, and that the mere fact that the instruments at either end operated in a differ- ent manner was not sufficient to differentiate the two lines. How far questions of public policy may have entered into this decision it is impossible to say. § 15. Wisconsin Case. Wisconsin Telephone Company v. Oshkosh. — In an early case in this country,* the same ques- tion arose in another form, the particular point in this case 1 Cases, supra, §§ 4-12; also infra, § 18. 2 Q. B. Div. 244. 8 Supra, § 4. * Wisconsin Telephone Co. v. Oshkosh, 62 Wis. 32. INTRODUCTORY. 15 being whether a telephone company could legally be incor- porated under a general statute providing for the incorpora- tion of telegraph companies. It is to be observed that there was no statute in AVisconsin expressly providing for the incorporation of telephone companies as such, and that tlie conii)any in question was already incorporated and doing business, and that great loss would have been occasioned to its stockholders, had it been held that the company was illegally organized. The court considered the English case,i and accepted its reasoning, and decided that the telephone is a telegraph, that a company incorporated under the general telegra[)h act may build and operate a telephone line, and may call itself a telephone company. This decision was followed in later cases on the same point in other States.^ § 16. Telephone a Telegraph {continued). — The same prin- ciple that a telephone line is a species of telegraph line was brought up in another case,^ in which the question was whether a telephone company was a telegraph company in such a sense as to come under the statute providing for the taxation of telegraph companies. The court held that it was. In this case it is also to be noted that there was no statute expressly taxing telephone companies as such, and that the effect of holding that the telephone com])any was not a telegra])h company would have been to deprive the city of the revenue which it might have raised from the taxation of the telephone company as a telegraph company. In still another case it was held that a telephone is a telegraph in so far as that a power in a city government to "license, tax, and regulate" telegra})h companies will apply also to tele- 1 Atty.-Gen. v. Edison Telephone Co., 6 Q. B. Div. 244; supra, § 14. 2 Central Pennsylvania Telephone & Supply Co. v. Wilkesbarre & West Side St. Rv. Co., 11 Pa. C. C. 417; Cumberland Telephone & Telegraph Co. r. United Elec. Ry. Co., 42 Fed. Rep. 273; Chesapeake & Potomac Telephone Co. r. Baltimore & OliioTelecfraph Co., 60 jNId. 399. 8 Telephone Co. v. Board of Equalization, 67 la. 250. 16 THE LAW OF ELECTRICITY. phone companies.^ Still further, in a case in New Jersey,^ the court held that a telephone company is a telegraph com- pany in such a sense that it may exercise the right of eminent domain and condemn a right of way under a statute giving this right to telegraph companies. This is perhaps the strongest case decided, as the statute giving the right of eminent domain is always construed strictly as being in derogation of the common law, and to hold that the words " telegraph company " in such a statute include telephone companies is practically the same as declaring that such companies are radically identical. Here it is again to be noted that the company was organized, and had expended large sums of money in construction, and depended upon the right of eminent domain for a portion of its right of way.^ § 17. Telephone a Telegraph {cotitinued). — Duke V. Central New Jersey Telephone Company. In this case the court set forth very clearly the identity of the two forms of business as follows : — "The discovery of this method of communication [tele- phony] and its application to the purposes of the speedy transmission of intelligence was but a change in detail but not in substance of the business for which the companies were clothed with corporate privileges. They are both ser- vices of a public nature which would permit the legislature to confer the power to condemn for each use. They are both designed to convey intelligence between distant places. So far as the owner over whose land their wires or cables lie is concerned they are operated with the same appliances. Poles and wires placed alike impose exactly the same servitude 1 St. Louis V. Bell Telephone Co., 96 Mo. 62.3. 2 State, Duke v. Central Xew Jersey Telephone Co., .53 N. J. L. 341. 8 Several other cases follow the above principle that a telephone is a species of telegraph. Cumberland Telephone & Telegraph Co. v. United Elec. Ry. Co., 42 Fed. Rep. 273; Roberts v. Wisconsin Telegraph Co., 77 Wise. 589; Franklin v. Northwestern Telephone Co., 69 la. 97; Com. V. Pennsylvania Telephone Co., 42 Leg. Int. 180. INTRODUCTORY. 17 upon the land. With a change in the apparatus at the termini telegraphy becomes telephony. The former makes the distant message intelligible by words, marks, and sounds, the latter by sounds alone. The same electric fluid is the medium of transmission, and all the interterminal structure is the same in both. A corporation employing either means of communication is exercising substantially the same public function in substantially the same way.''^ § 18. Telephone is a Public use. — As would 1»e expected from the foregoing decisions confirming the identity between the telegraph and the telephone, the court has held that a telephone company is engaged in a " public business " in the same manner as a telegraph company is. This similarity was announced in the case just considered which involved the exercise of the right of eminent domain Ijy a telephone company under a statute giving this right to a telegraph company. The court considers the question of the various uses of the telephone, and after deciding that the telephone is, in effect, a telegraph in all essential particulars, and as such is entitled to all the privileges which the telegraph company from its public character possesses, further holds that a telephone company has, so far as its occupation is concerned, the same public duty of serving the community, and confers the same public benefit and advantage upon the community, which vests it with the character of a public corporation with all the implied rights and duties appertain- ing to such corporations. 2 And in cases in which the point involved was the obligation of the telephone companies to furnish equal facilities to all the public, the courts have asserted the public nature of the business. ^ » State, Duke v. Central New Jersey Telephone Co., 53 N. J. L. 341. 2 Ibid. 8 Delaware & Atlantic Telecfraph & Telephone Co. v. State, 50 Fed. T^ep. 677; s. c. 47 Fed. Kep. G33; State of Missouri v. Bell Telephone Co., 23 Fed. Rep. 539; State v. Nebraska Telephone Co., 17 Neb. 126, and see c. xiv. 2 18 THE LAW OF ELECTRICITY. S 19. Electric Light. — General Characteristics. — In Consid- ering the important characteristics of electric lighting, the third of the great electrical industries, there are few strik- ing features. An electric lighting plant is confined to a small local territory, and does not spread over large tracts of country as telegraph and telephone lines do. It is merely a development of the gas-lighting business, and although it is of great practical value and convenience, it does not have the features of national interest which the telegraph, and to a lesser degree the telephone, have. However, there are two important features which electric lighting has; first, that in common with the telegraph and telephone it is a " public business," and has all the rights and is subject to all the obligations of such a business, as has been said in regard to the telegraph company ; and second, that it is in many cases at the present day becoming a part of the municipal improvements which city and town governments take into their ownership and under their authority and control, thus giving it a status as a portion of the complicated aggregation of powers, rights, and duties which are called municipal corporations. § 20. Electric Light a Public Use. — The public character of the electric lighting business arises from the great public conveniehce and advantage of this form of lighting both in public places and for individuals. While the section of the community which avails itself of this advantage is perhaps more limited than of the telegraj)h, yet the public nature of the advantages offered by these companies, and their obli- gation to extend these advantages to any portion of the public which may desire to avail itself of the same within the limits in which the company does its business, give it a public character similar to the telegraph and telephone.^ 1 Opinion of the Justices, l."0 ^fass. .592; Spaulding r. Peabody, 153 Mass. 129 ; Linn v. Chambersburg Borough, 160 Pa. St. .511 ; Thompson- Houston Electric Co. v. Xewton, 42 Fed. Rep. 723 ; Crawfordsville v. Braden, 130 Ind. 149; and see post, c. vii. INTRODUCTORY. 19 While the electric lighting business is a public business, yet an electric light company is not a public corporation in the sense in which such term is ajjplicd to municipal corpora- tions. Thus it has been held that an electric lighting com- pany cannot without express statutory authority claim an exemption of its property from the ordinary mechanic's lien on the ground that it is a public corporation like a municipal corporation. ^ § 21. Municipal Ownership of Electric Lighting Plants. — The second characteristic feature of the electric lighting business is the fact that it has been in many instances undertaken by the municipal authorities as a part of the system of improve- ments of their municipalities. This action of the municipal authorities has raised the question of whether the furnishing of electric light for public street lighting and for lighting residences and stores is within the scope of the powers of municipal governments. The question has generally been raised on some point involving the taxation of citizens for the purpose of paying for electric lighting plants, and in this regard, as well as in other cases raising similar points, the courts have generally, though not uniformly, held that the furnishing of light in some form for street lighting is plainly within the scope of municipal powers at common law, and that it is merely a question of whether the electric light is reasonably adapted for the lighting of the municipality in question both as to efficiency of light and expense of installa- tion; and this without any express statutory authority being given to the municipal government; and that when, as has been the case recently in many States, statutes are passed directly authorizing municipal governments to acquire and operate electric lighting plants, the stotute merely limits and defines the common-law right above stated. ^ The ex- ^ Badp;er Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 48 Kan. 187. - Opinion of the Justices, 150 ^lass. 502: Spanlding v. Peabody. 153 ^lass. 129; Linn v. Chambersburg Borough, IGO Pa. St. 511; Mauldin 20 THE LAW OP ELECTRICITY. tended discussion of this subject of the acquisition of electric lighting plants by municipal governments is deferred to a later chapter. ^ § 22. Electric Railway a Public Use. — That the operation of an electric railway on and over the streets and highways of a town or city or over the lands of individuals is a public use of the streets and highways and other lands is so evident as hardly to need citations. In all the cases where this point has come up the courts have held that the street rail- way is a form of public use of the streets which is included in the purposes and uses lor which the street was originally dedicated, and the street railway, therefore, takes its posi- tion along with the telegraph and telephone and electric light as a public occupation, and the company operating it has the rights, duties, and obligations of companies carrying on such public businesses. ^ This subject is discussed at some length in the chapter on Eminent Domain,^ in which connection the question most frequently arises. § 23. Electric Railway different from Steam or Horse Rail- way. — The most prominent characteristic of the electric railway in its legal relations is its intermediate position between the horse railway and the steam railway. The introduction of the horse railway as a means of public trans- portation over the streets and highways was not a great innovation upon the methods of travel by stoge coach and V. Greenville, 33 S. Carolina, 1 ; Kushville Gas. Co. v. Rushville, 121 Ind. 212; Crawfordsville v. Bra.len, 130 Tnd. 149; State v. Hamil- ton. 47 Oh. St. 52; Thompson-Houston Electric Co. v. Newton, 42 Fed. Rep. 723. 1 See post, c. vii. 'i Atty.-Gen. v. Metropolitan R. R. Co., 125 Mas.s. 51.5; Hudson River Telephone Co. v. Watervliet Turnpike & Ry. Co., 135 N. Y. 393; Lock- liart V. Craig St. Ry. Co., 139 Pa. St. 419; Briggs v. Lewiston & Auburn H. Ry. Co., 79 Me. 363; Jersey City & Bergen R. R. Co., v. Jer,seyCity& Hoboken Horse R. R. Co., 20 X. J. Eq. 61 ; Taggart v. Newport St. Ry. Co. , 16 R. I. 668. 8 Post, c. v., §§ 107 el seq. INTRODUCTORY. 21 other horse vehicles wliich had long been in use, and conse- quently it was almost universally held, on the introduction of horse railways, that the use of the street by the horse railway for public travel was a legal use of the streets for public travel.^ On the other hand, the steam nulway, when it runs upon public highways, introduces theieuu a vehicle wholly different in construction and mode of oj»cration from any others used upon the highways, and one of a ponderous nature, dillicult to control, and attended with noise and danger in passing, in addition to the permanent obstruction to the highway caused by the sleepers and raised tracks, and therefore has almost invariably been considered foreign to the legitimate uses of the highway.^ The electric railway, however, occupies an intermediate position between these methods of transi)ortation. There is a material difference between it and a street railway operated by horses. The electric railway not only occupies a portion of the street with its tracks like the horse railroad, but as a necessary part of its machinery, as ordinarily constructed in the over- head trolley system, has iron posts of considerable height per- manently fixed in the ground along or near the curb of the pavement or sidewalk, between which are affixed permanent lines of wires crossing the street, which in turn support a longitudinal line of wire over each track of the railway.^ Moreover, the cars of the electric road arc larger in size than the ordinary horse car, are heavier, and, owing to the great speed at which they are run, arc more difficult of 1 Brifjgs V. Lewiston i*5c Auburn TI. Ry. Co., 79 Me. oGZ\ Hiss v. Balti- more, etc., Ky. Co., '^2 Md. 2}_': Koch v North Avenue Ry. Co., 75 Md. 222; Atty.-Gen. v. Metropolitan R. R. Co., 125 Mass. 51. "^ : Onset St. Ry. Co. V. County Commis.sioners, 154 Mass. 400; Jersey City & Berfjen R. R. Co. V. Jersey City & Ilohoken Horse R. R Co., 20 X. J. Eq. 61 ; Eichels v. Evansville St. Ry. Co., 78 Ind. 201. 2 Taggart v. Newport St. Ry. Co., 16 R. I. 068; White v. Nor. W. N. C. R. R. Co., 113 N. C. 610; Pierce on Railroads, § 234. ' Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419, 423. 22 THE LAW OF ELECTRICITY. control. 1 On the other hand the electric road differs from the steam road in many obvious particulars, such as the cars runnino- either singly or in trains of two, the absence of smoke, and the less degree of noise attending the operation of the machinery, the kind of traffic it is intended to provide for being local rather than through or distant travel, and other particulars, although resembling the steam road some- what in the rate of speed and difficulty of controlling the cars.2 The electric street railway, therefore, occupies an intermediate position between the horse railway and the steam railway, and it will be seen that the courts have recognized this intermediate position by ai)plying to it a portion of the rules applicable to horse railways, i. e., allowing the electric railway to be laid in the street without additional compensation to the owners of land abutting on the street as being one of the legitimate uses of public high- ways, ^ and by applying also a portion of the rules applicable to steam railroads in respect to the care which people travel- ling along the street must use with regard to the approach and passage of the electric cars.^ § 24. Public distinguished from Municipal Corporation. — In discussing the legal status of the above electrical businesses it has been shown that in each case the electrical business is a public occupation. It should not, however, be understood that the fact that the business is a public occupation makes 1 Hickman v. Union Depot R. R. Co., 47 Mo. App. 65; Carson v. Fed- eral St. & Pleasant Valley Ry. Co., 147 Pa. St. 219. 2 Ibid. 8 Briggs V. Lewiston & Auburn H. Ry. Co., 79 Me. 363; Hiss v. Balti- more, etc., Ry. Co., 52 Md. 242; Koch v. North Avenue Ry. Co., 75 Md. 222; Atty.-Gen. v. Metropolitan R. R. Co., 125 Mass. 515; Onset St. Ry. Co. y. County Commissioners, 154 Mass, 400; Jersey City & Bergen R. R. Co. V. Jersey City & Hoboken Horse R. R. Co., 20 JST. J. Eq. 61 ; Eichels v. Evansville St. Ry. Co., 78 Ind. 261; see poxt, §§ 107 et seq. * Hickman v. Union Depot R. R. Co., 47 Mo. App. 65; Carson v. Federal St. & Pleasant Valley Passenger Ry. Co., 147 Pa. St. 219; and see post, §§ 755-766. INTRODUCTORY. 23 the corporation carrying on such business a public corpora- tion in the sense which is applied to municipal corporations. Neither the telegraph company, the telephone company, the electric light company nor the electric railway company is a public corporation in the sense in which municipal corpora- tions are so termed.^ It is believed that the term "public," although applied commonly only to municipal corporations, is broad enough to embrace all corporations which carry on a public business, and when meant to apply only to municipal corporations, should have that word athxed in addition. § 25. Summary. — The foregoing sections show the general characteristics of the four great divisions of electrical in- dustries, the telegraph, telephone, electric light, and elec- tric railway. It has been thought best to bring out these characteristics prominently at the outset of the suljjects to be discussed in this work, since from them flow many important rights and obligations of these companies which will be considered in detail in the progress of the work. 1 Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 48 Kan. 187 ; Cf. post, § 275. 24 THE LAW OP ELECTRICITY. CHAPTER II. INCORPORATION. §26. Incorporation. §33. Articles of Association, Telegraph 27. Under General or Special Laws. Companies. 28. Telephone Company under Tele- 34. Incorporation of Telephone Com- graph Act. panies. 29. Electric Railways. Electric Light 35. Incorporation of Electric Light Companies. Companies. 30. Void Charters. 36. Compliance with Statutes Neces- 31. Special Statutes, Telegraph Com- sary. panies. 37. Proof of Incorporation. 32. Telegraph Companies, Number of Subscribers. § 26. Incorporation. — The application of electricity to the various purposes of modern life is principally carried on through the operations of incorporated companies, which, by reason of their large capital, are able to acquire and operate the expensive plants necessary for these purposes. The investigation of the law relating to electricity is, there- fore, in a large measure the consideration of the law relating to electric corporations, and the main divisions of this book are planned with reference to this fact. The first step in the corporate existence is the incorporation of the company, and this matter will now be discussed, in so far as it has any peculiar features arising out of the distinctive character of electrical companies. The main rules relating to this sub- ject are the same as those which apply to the incorporation of other companies, and do not require treatment in this book, as they are already covered by numerous .excellent works on the general subject of corporations. § 27. Under General or Special Laws. — The first question is whether the company should be incorporated under the general corporation laws of the State, or under a special statute, or by direct grant of a charter from the legislature. INCORPORATION. 25 This question depends largely upon the statutes of the State in which incorporation is sought. If there is a special stat- ute providing for the organization of telegraph companies, then incorporation must be had under and in accordance with the provisions of this special statute, and cannot be had under the general corporation laws, and the same is true of telephone and electric light and railway companies.^ If there is no special statute applicable to the kind of corpora- tion which it is desired to form, then the ({uestion arises whether the corporation can be formed under the general corporation laws of the State, or whether a special charter must be procured from the legislature. This question is determined by the language of the general corporation law. If this language is broad enough to include the business which the corporation is intended to carry on, whether it be telegraphy or telephony, or other electrical purposes, then the corporation can be formed under such general corpora- tion laws without going to the legislature for a special charter, otherwise application must ha made to the legisla- ture. ^ This matter must be determined in each instance by reference to the general corporation laws of the State in question. § 28. Telephone Company under Telegraph Act, — If in any State there is a statute authorizing the formation of tele- graph companies, and no statute authorizing the organization of telephone companies, a company of the latter description may be organized under the telegraph statute, for a telephone line, as has been previously seen, is held by the courts to be a telegraph line, and a company organized under a telegraph act may do a telephone business.^ But if a special telephone 1 State, Domestic Telegraph & Telephone Co. v. Newark, 49 X. J. L. 311. - Doboy & Union Island Telegraph Co. v. De jMagathias, 25 Fed. Rep. 697. 3 Supra, § 13; Wisconsin Telephone Co. v. Oshkosh, 62 Wise. 32; Central Pennsylvania Telephone & Supply Co. v. Wilkesbarre & ^^■e.st 26 THE LAW OF ELECTRICITY. act exists, corporations for carrying on that business must be formed under the special act upon the principle stated in the preceding section. ^ § 29. Electric Railways. Electric Light Companies. — Elec- tric railways, being usually a form of street railways, are generally incorporated in the same manner as other street railways unless special statutes prescribe a different method of incorporation. Street railways cannot be organized under steam railroad acts if there is a street railway act in exist- ence in the State. ^ In Iowa a special statute authorizing the formation of street railways inserts the words " or elec- tric." ^ Whether an electric light or power company can be organized under a manufacturing corporations act or not has not been directly decided. In Pennsylvania it has been held that such a company is not a manufacturing company in such a sense as to be within the exemption of manufacturing companies from taxation,* but this decision was based on the fact that the manufacturing corporations act in that State enumerated the kinds of corporations which could be organ- ized under its provisions, and electric light companies were not included.^ In New York, on the other hand, the court of appeals, in a well-reasoned opinion, holds that an electric light company is in fact a manufacturing company.^ This case was a tax exemption case, and the court said that electric light companies, by the application of skill and Side St. Ry. Co., 11 Pa. C. C. 417; Chesapeake & Potomac Telephone Co. V. Baltimore & Ohio Telegraph Co., 66 Md. 399; Cumberland Telephone & Telegraph Co. v. United Electric Ry. Co., 42 Fed. Rep. 273. ^ State, Domestic Telograph & Telephone Co. v. Xewark, 49 N. J. L. 344. 2 Commonwealth v. Nor. East. El. Ry. Co., 161 Pa. St. 409. « la. Acts 1892, c. 22. * Infra, § 8.54, 8.55. 6 Commonwealth v. Northern Electric Light & Power Co., 145 Pa. St. 105; Commonwealth V. Edison Electric Light Co., lb. 131; Commonwealth V. Chester Electric Light & Power Co., lb.; Commonwealth v. Brush Electric Light Co., lb. 147. 6 People, exrel. Brush Electric Manuf. Co., v. Wemple, 129 N. Y. 543. INCORPORATION. 27 labor to materials that exist in a natural state, gave them a new quality or characteristic, and adapted them to a new use, and this is manufacturing. § 30. Void Charters. — Charters of incorporation proceed originally from the legislature as embodying the sovereign power of the State, and if the constitution of the State pro- vides that a certain kind of company, e. ^., telegraph com- pany, shall be organized only by the legislature, that body cannot delegate the power of granting such charter to a county court, and a charter granted by the latter body will have no validity. ^ § 31. Special Statutes, Telegraph Companies. — In Cali- fornia, Colorado, Florida, Indiana, Kansas, Maryland, Michigan, Missouri, Nebraska, Nevada, New Jersey, New York, Pennsylvania, and Tennessee special statutes exist prescribing certain formalities for the formation of tele- graph companies.2 In Kansas, Maryland, and Pennsylvania it is expressly provided that telegraph companies may be incorporated under the general corporation law.^ § 32. Telegraph Companies, Number of Subscribers, — One important condition imposed by statute upon the manner of incorporating a telegra{)h company is a minimum number of subscribers. In Maryland there must be at least five, all citizens cf the United States, or intending to become so without delay, and a majority citizens of Maryland.^ In 1 Doboy & Union Island Telegraph Co. v. De Magathias, 25 Fed. Rep. 697. 2 Cal. Civ. Code, § L>91 ; Col. Ann. Stat. § 5^7; Fla. Rev. Stat. § 2253; Tnd. Ann. Stat. § 5497; Kan. Gen. Stat. § 13^^9 ; Md. Pub. Gen. Laws, Art. 23, §§ M, 21, (cl. 11,) 222; .Mich. How. Ann. Stat. § 3G93; Mo. Rev. Stat §2716; Nebr. Comp. Stat. c. 89 a, § 2; Nevada Gen. Stat. § 916; X.J. Rev. J). 1174, §1; N. Y. Rev. Stat. (Rirdseye ed.) p. 3031, § 1; Laws, isno, c. 500, Art. 8, § 100; Pa. Bright. Purd. Dig. (12th ed.) p. 2000, § 1 ; Tenn. Code, § 1927. See post, §§ 32, 33, et seq. 3 Kan. Gen. Stat. § 1389; Md. Pub. Gen. Laws, Art. 23, § 14; Pa. Bright. Pnrd. Dig. p. 2000, § 1. * Pub. Gen. Laws, Art. 23, § 14. 28 THE LAW OP ELECTRICITY. Missouri also there must l)c not less than five.^ In New Jersey two are enough ;2 in New York seven,^ in Tennessee five.^ In Colorado/ Indiana,*^ and Michigan,' it is expressly provided in the statute that any number of corporators is enough. In other States no special number is named. No special statute prescribes any number of subscribers for tele- phone companies, electric light or electric railway companies ; but the matter is governed by the general rules applicable to the formation of corporations. § 33. Articles of Association, Telegraph Companies. — When companies are formed under general acts, the incor- poration is usually effected by making out and subscribing articles of association, which are filed with the Secretary of State or other recording officer. Certain special state- ments are required in some States by statute in the articles of association of telegraph and telephone companies. These special statements refer to the route and termini of the lines and the manner of capitalization. In California,^ Colorado,^ Florida,^^ Indiana, ^i Michigan, ^2 Nevada, ^^ New Jersey,^* New York,i° Pennsylvania,^^ and Tennessee,^" the statutes require a description of the route of the line and its termini, and in Colorado and Pennsylvania, the counties through which it runs. In California and Florida an esti- mate of length is necessary, and in the latter State also an affidavit of lona fide intention to construct. ^^ The insertion of a corporate name in the articles of association is required by statutes in Indiana, Michigan, Missouri, New Jersey, 1 Rev. Stat. § 2716. lo Rev. Stat. § 2253. 2 Rev. p. 1174, § 1. 11 Ann. Stat. § 5498. 3 Laws 18!)0, c. 506, Art. 8, § 100. ^2 Ann. Stat. § .3694. 4 Code, § 1927. 13 Gen. Stat. § 916. 6 Ann. Stat. § 587. » Rev. p. 1174, § 1. 6 Ann. Stat. § 5497. is j^aws 1890, c. 566, Art. S, § 100. ' Ann. Stat. § 3693. i'' Bright. Purd. Dig. p. 2000, § 3. 8 Civ. Code, § 291. i^ Code, § 1027. » Ann Stat. §§ 587, 632. " Sts. «<;?ra, & Fla. Rev. St. § 2254. INCORPORATION. 29 New York, and Tennessee,^ but would naturally be inserted without such enactments. In Indiana, ^ Michigaii,^ Missouri,* I^ew Jersey,^ and New York,^ the telegraph statutes provide that the amount of the capital stock and the shares into which it is divided, and in Indiana, Michigan, and New York the names and residences of the subscribers, must also be stated. In California, stock must have been subscribed for at the rate oi 8100 per mile, and ten per cent of the sub- scription actually paid in before the telegraph company can be incorporated,' and in New Jersey one-third of the stock necessary for construction must have been subscribed.^ In Florida the shares must be 8100 each in par value. ^ In Missouri the total stock must be not less than 820,000 in par value. ^"^ And in Tennessee, ^^ the subscribers must be over twenty-one years of age. In New York the certificate must state the term of corporate existence and the names of not less than seven directors. ^'-^ In Michigan the limit of the charter is thirty years. ^^ In Indiana,^* Michigan, ^^ Missouri, ^^ Nevada,!*" and New York,!^ the articles of association must be acknowledged before proper officers before filing with the Secretary of State. § 34. Incorporation of Telephone Companies. — Few special statutes relate to the incorporation of telephone companies. In Florida!^ the telegraph acts are applied to telej)hone com- panies. In Indiana a special telephone act exists,^ which provides that the articles of association shall set forth the name, the counties or places within which the company 1 Statutes, supra. " Code, § 1927. 2 Rev. Stat. § 4163. 12 Laws 1890, c. 566, Art. 8, § 100. 8 Ann. Stat. § 3694. is Ann. Stat. § 3694. * Rev. Stat. § 2716. " Rev. § 4103. 6 Rev. p. 1171. § 1. 16 Ann. Stat. § 3691. « Law.s 1S90. c. 566, Art. 8, § 100. i« Rev. Stat. § 2716. ' Civ. Code, §§ 291, 293, 294. i" Gen. Stat. § 916. 8 Rev. p. 1174. § 1. 18 Laws 1890, c. 566. Art. 8, § 100- 9 Rev. Stat. § 2255. i9 Rev. Stat. §§ 22.o2-22.->o. 10 Rev. Stat. § 2716. 2« Rev. Stat. §§5517-5529. 30 THE LAW OP ELECTRICITY. proposes to establish, maintain, and operate telephones and telephone exchanges, the amount of capital stock, and the number of shares into which it is divided. The incorpora- tors sign these articles, and five of them acknowledge the execution before a proper officer, and record the articles in the office of the Secretary of State. In Kansas a special statute enacts that telephone companies may bo formed under the general laws for the creation of private corpora- tions.^ In Maryland, Missouri, and New York telephone companies are expressly included in the telegraph acts.^ In Michigan a special telephone act exists, whereby three or more persons may organize a telephone company by signing and acknowledo-ing articles of association which contain the name of the company, the principal place of business in the State, and the term of existence, not exceeding thirty years, the amount of its capital stock, number of shares, and amount subscribed and paid; number of directors not to be less than three, and the names of the first board. ^ In Tennessee telephone companies are chartered under the electric company act given in the next section.* § 35. Incorporation, Electric Light Companies. — There are few special statutes relating to the formation of electric light corporations, such companies being generally included in the general corporation laws. In Maryland ^ the tele- graph statute is applied to companies "for the transaction of any business in which electricity, over or through wires, may be applied to any useful purpose," and a special section^ includes the formation of electric light companies. In Michigan a special electric light act exists, providing that 1 Gen. Stats. §§ 11.51), 1160. a Md. Pub. Gen. Laws, Art. 23, § 24; Mo. Rev. Stat. § 2716; N. Y. Laws 1890. c 566, Art. 8, § 100. 8 Ann. Stat. §§ 3718 a, 3718 b. * Code, § 1787. 6 Pub. Gen. Laws, Art. 23, § 24. 6 Ibid. § 30. INCORPORATION. 31 not less than five persons may associate to form an electric light corporation on signing, aclvnowledging, and recording with the Secretary of State articles of association, stating the name of the company, the term of its existence, not exceeding thirty years, the object of the company, the amount of the capital stock, not less than §10,000 nor more than 82,500,000, the number of shares, the names of the towns, cities, villages, and counties in which the operations are to be carried on, the names of the stockholders and resi- dences, number of shares held by each, number of directors, and the names of the first board.' In New York three or more persons may organize for manufacturing and using electricity for producing light, heat, or power, by signing, acknowlcdgino:, and filing a certificate with the Secretarv of State, stating the name of the corporation, its objects, the amount of its capital stock, the term of its existence not exceeding fifty years, the number of shares, the board of directors not less than three nor more than thirteen, the names and places of residence of the first board, and the name of the town and county in which the operations of the company are to be carried on.^ In Tennessee the statute provides that the charter of an electric company shall con- tain five subscribers over twenty-one years of age, and shall give the name of the company, the purpose, ?'. e., manufac- turing electric light, or manufacturing electric motive power, electrotyping, etc., stating fully the objects of the company and the general powers of the corporation. ^ § 36. Compliance with Statutes necessary. — It is essential to the formation of a valid corporation, that the statutory prerequisites should be substantially complied with, espe- cially the proper filing of the articles of association,'^ but 1 Ann. Stat. §§ 41S2, 4183, 4181, 4185. •■2 Laws 1800, c. 56G, Art. 6, § 60. 8 Code, § 1787. ■* Mokelunine Hill Mining Co. v. Woodbury, 14 Cal. 424; Doyle v. ^lizner, 42 Mich. 332 ; Utley v. Union Tool Co., 11 Gray, 139. 32 THE LAW OF ELECTRICITY. mere informalities or immaterial variations will not render the incorporation void.i § 37. Proof of Incorporation. — In many States by statute, in suits by or against corporations, the fact of incorporation need not be proved unless it is specially denied by the other party. In such case an allegation by the other party that he has no knowledge or information sufficient to form a belief as to the incorporation is not enough to require proof of the incorporation. 2 In States where no such statutory provision exists, if the company was incorporated by a special act of the legislature, the act must be proved, for private acts are not judicially noticed, ^ and proof of the act of incorporation, and a certificate of the incorporation by the Secretary of State is sufficient evidence of the incorpora- tion.* If the company is incorporated under a general incorporation act, this is a public law, and will be judicially noticed ; ^ but the fact of incorporation must be proved, and this may be done by a certified copy of the articles of asso- ciation from the Secretary of State's office, and the record books of the company showing the organization meetings, together with a certificate as to the subscription of stock, if this is a prerequisite to the incorporation of the company.^ And after the incorporation is proved it throws the burden of proof of dissolution on the other party,''' unless the charter 1 People V. Stockton & Visalia R. R. Co., 45 Cal. 306; Walworth v. Brackett. 98 Mass. 98; Eastern Plank Road Co. v. Vaughan, 14 N. Y. 546, 551. 2 East River Electnc Light Co. v. Clark, 18 N. Y. S. 463. 8 1 Greenleaf Evid. § 5; City Council of ^lontgomery ;;. Montgomery, etc. Plank Road Co., 31 Ala. 76 ; Ohio, etc. R. R. Co. v. Ridge, 5 Blackf . (Ind.) 78. 4 Dolbear v. American Bell Telephone Co., 126 U S. 1. 6 1 Greenleaf Evid. § 5; Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 872. ^ Toledo Electric Street Railway Co. v. Toledo Consolidated Street Railway Co. (Ohio), 26 \Vk]y. Law Bui. 172. ' United States El. Light Co. v. Leiter, 19 D. C. 575. INCORPORATION. S3 as proved, or the general law provides a limitation of time which has expired. If a company was incorporated nnder the laws of another State, whether general or special, the laws must be proved, since the courts will not judicially notice even the public laws of another State. ^ 1 1 Greenleaf Evid. § 5; United States Bank v. Stearns, 15 Wend. 314. S4 THE LAW OP ELECTRICITY. CHAPTER HI. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. § 38. Franchises or Riglits of Way. § 47. Act grants an Easement. 39. Federal Franchise of Telegraph 48. Act does not allow Telegraph to Companies. displace Electric Light Wires. 40. Telegraph Act of July 24, 1866. 49. State Statute requiring Local 41. Effect of this Act. Agent of Foreign Companies. 42. Act of Congress renders void Hos- 50. Acceptance of Franchise. tile State Legislation. 51. State Statutes as to Delivery of 43. Act prevents exclusion from State Messages. or any Portion. 52. State Tax Statutes. 44. Act does not give Right of Way 53. Tax on Receipts from Messages. without Owner's Consent. 54. Tax on Franchise. 45. Act renders Exclusive Contracts 55. Tax on Business. with Railway Companies in- 56. Tax on Poles, valid. 57. Tax on Property. 46. Does not prevent putting Wires 58. Summary. Underground. § 38. Franchises or Rights of Way. — Telegraph, telephone, elecxric light, and electric railway companies generally depend upon the use of highways and railways for the prose- cution of their business, for although there are instances of telegraph lines, telephone lines, electric light plants, and electric railways which are located wholly upon private property, and are not intended for public use, especially in the case of electric light plants, yet the large majority of such companies do a public business, and for this purpose necessarily use the highways and railways for the location of their lines. Tt is therefore necessary for them to acquire in some way the right so to use highways and railways for these purposes. § 39. Federal Franchise of Telegraph Companies. — Before proceeding to discuss the general methods of acquiring the right to locate poles and string wires over highways and railways, the peculiar franchise granted to telegraph com- FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 35 panics by Congress, ^ which has been alluded to previously, ^ will be discussed. § 40. Telegraph Act of July 24, 1866. — By the tcrmS of this act any telegraph company then organized, or which might thereafter be organized under the laws of any State, has the right to construct, maintain, and operate lines of telegraph through and over any portion of the public domain of the United States, over and along any of the military oi- post roads of the United States which had been or might thereafter be declared such by law, and over, under, and across the navigable waters and streams of the United States ; but such lines of telegraph shall be so constructed and main- tained as not to obstruct the navigation of such streams and waters, or interfere with the ordinary travel on such military or post roads ; ^ and any telegraph company organized under the laws of any State has the right to take and use from the public lands through which its lines of telegraph may pass, the necessary stone, timber, and other material for its posts, piers, stations, and other needful uses in the construction, maintenance, and operation of its lines of telegraph, and may pre-empt and use such portion of the unoccupied lands subject to pre-emption through which their lines of tele- graph are located as may be necessary for their stations, not exceeding forty acres for each station ; but such stations shall not be within fifteen miles of each other.* The rights and privileges granted under the provisions of this act may not be transferred by any company acting thereunder to any other corporation, association, or person.^ Telegrams between the several departments of the govern- ment and their officers and agents, in the transmission over the lines of any telegraph company to which has been given the right of way, timber, and station lands from the public 1 Act of July 24, 1SG6; U. S. R. S. §§ 5263-52G9. 2 Supra, §§11, 12. ' U. S. R. S. § 5263. * Ibid. § 52G4. 6 ii)id. § 5205. 36 THE LAW OP ELECTRICITY. domain, shall have priority over all other business at such rates as the postmaster-general shall annually fix. And no part of any appropriation for the several departments of the government shall be paid to any company which neglects or refuses to transmit such telegrams in accordance with the provisions of this section. ^ Before any telegraph company shall exercise any of the powers or privileges conferred by this law, such company shall file their written acceptance with the postmaster-gene- ral of all the restrictions and obligations required by law.^ § 41. Effect of this Act. — The effect of this act has been discussed in a number of cases in the federal courts and in several cases in the State courts. Its effect upon the general status of the telegraph companies which accept its provisions in writing is twofold, as construed by the federal courts, as has been stated above. ^ First. It makes them agents of the federal government for the transaction of its business. Second. It is legislation as to the regulation of interstate commerce under the power given to Congress by the Consti- tution,'* and protects the telegraph lines as means of inter- state commerce as to messages sent from one State into another, for such messages are elements of interstate com- merce.^ And this construction has been acquiesced in by most of the State courts when the question has been raised, 1 U. S. R. S. § 5266. 2 Ibid. § 5268. 8 Supra, § 11. •* Art. 1, § 8. ^ Pensacola Teleo^raph Co. v. Western Union Telegraph Co., 96 U. S. 1 ; Western Union Telegraj)h Co. v. Texas, 105 U. S. 466; Ratterman v. Western Union Telegraph Co., 127 U. S. 411; Western Union Telegraph Co. V. Pennsylvania, 128 U. S. 39 ; Leloup v. Port of Mobile, 127 U. S. 640; Western Union Telegraph Co. v. State Board of Assessment of Alabama, 132 U. S. 472; St. Louis v. Western Union Telegraph Co., 148 U. S. 92; s. c. 149 U. S. 465; Western Union Telegraph Co. v. Pendleton, 122 U. S. 358; Western Union Telegraph Co. v. Massachusetts, 125 U. S. 530; Western Union Telegraph Co. v. Mayor of New York, 38 Fed. Rep. 552, 404; Western Union Telegraph Co. v. American Union Telegraph Co., 9 FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 37 although conflicting inferences have been drawn therefrom, as will be seen later. ^ S 42. Act of Congress renders void Hostile State Legislation. — The true effect of this act has been much discussed, and the leading principle, as affirmed by the Supreme Court of the United States, and by the courts of last resort in several States, is that the act in question provides that no State legislation shall prevent the occupation of post roads for telegraph purposes by such telegraph companies as will avail themselves of the privileges of this nct.^ § 43. Act prevents Exclusion from any State or any Portion of it. — Any State legislation, therefore, which excludes any telegraph company from acquiring its right of way by proper legal proceedings in any portion of the State is repugnant to the Act of Congress and void.^ Thus where a telegraph Biss. 72, 390; Western Union Telegraph Co. v. Burlington & S. W. By. Co., 3 Mc Cr. 130; s. c. 11 Fed. Rep. 1; Western Union Telegraph Co. i-, Baltimore & Ohio Telegraph Co., 19 Fed. Rep. GGO; Western Union Tele- graph Co. r. Baltimore & Ohio Telegraph Co., 22 Fed. Rep. 133 ; Western Union Telegraph-Co. v. Baltimore & Ohio Telegraph Co., 23 Fed. Rep. 12; Baltimore & Ohio Telegraph Co. v. Western Union Telegraph Co., 21 Fed. Rep. 319; Pacific Postal Telegraph Co. v. Western Union Telegraph Co., 5U Fed. Rep. 193; AVestern Union Telegraph Co. v. Charleston, 56 Fed. Rep. 419; Postal Telegraph Cable Co. v. Charleston, lb. ^ San Francisco v. Western Union Telegraph Co., 96 Cal. 140; Com- monwealth V. Smith, 92 Ky. 38; Port of ^Mobile v. Leloup, 76 Ala. 401; Wisconsin Telephone Co. r. Oshkosh, 62 Wise. 32, 38; American Rapid Telegraph Co. r. Iless, 125 X. Y. 641 ; Chicago & Atchison Bridge Co. v. Pacific Mutual Telegraph Co., 36 Kan. 113 ; American Union Telegraph Co. V. Western Union Telegraph Co., 67 Ala. 26; Western Union Tele- graph Co. I'. Guernsey & Scudder El. Light Co., 46 Mo. App. 120; Western Union Telegraph Co. v. Bright, 20 S. E. 146 ; We.stern Union Telegraph Co. ?'. American Union Telegraph Co., 65 Ga. 160; New Orleans, etc. R. R. Co. I). Southern, etc. Telegraph Co., .53 Ala. 211. ^ Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1; American Telegraph & Telephone Co. v. Pearce, 71 ]\Id. 535; American Rapid Telegraph Co. v. Hess, 125 N. Y. 641; AVestern Union Telegraph Co. V. Mayor of New York, 38 Fed. Rep. 5.52. '' Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 ; We.stern Union Telegraph Co. v. Atlantic, etc. Telegraph Co., 5 Xev. 102. 38 THE LAW OF ELECTRICITY. company had inserted in its charter a clause giving it the exclusive right to do a telegraphing business in a certain territory, which embraced a large portion of the State, and later another telegraph company sought by proper legal proceedings to acquire a right of way for its poles and lines through this territory, the Supreme Court of the United States held that the act incorporating the earlier company was, so far as it assumed to grant an exclusive territorial right, hostile legislation of the State, and void as being repugnant to the Act of Congress in question. ^ And a similar decision has been made by a State court where the incorporating act purported to give an exclusive right to the company to do a telegraphing business in the whole State. 2 § 44. Act does not give Right of "Way without Owner's Con- sent. — It is well settled, however, that the act does not give telegraph companies the right to enter upon private property, and to locate their lines upon it, unless they acquire this right by consent of the owner or by valid legal proceedings by way of eminent domain. This construction has been asserted by the United States Supreme Court and by the Supreme Court of Maryland.^ S 45. Act renders Exclusive Contracts with Railway Com- panies invalid. — A further effect of this act is that it renders void 2^'ro fanto any contract or agreement between a telegraph company and a railway company, whereby the railway com- pany agrees not to allow any other telegraph company to gain a location for its polos and wires over the railway location, for the effect of such an agreement is to impair the 1 Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1. 2 We.stern Union Telegraph Co. v. Atlantic, etc. Telegraph Co., 5 Xev. 102; see aho pofH, §§ 108, 109. ' Pensacola Telegraph Co. v. "Western Union Telegraph Co., 96 U.S.I; American Telegraph & Telephone Co. v. Pearce, 71 Md. 58.5; Clausen Brewing Co. v. Baltimore & Ohio Telegraph Co., 2 Am. El. Cas. 211. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 39 free exercise of the privileges granted by the Act of Con- gress.^ These decisions are also supported upon the ground that such an agreement creates a monopoly, and is in restric- tion of trade, and is therefore void; and pcrhajis this is a better ground for resting them on, as the Supreme Court of the United States has as yet only announced expressly that the act in question is concerned with acts of State legislatures. 2 § 4<). Does not prevent putting Wires Underground. — The act in question does not prevent State legislatures from enacting statutes requiring telegraph wires to be placed underground, for this is a mere regulation of the manner in which the telegraph company shall enjoy the privilege granted by the Act of Congress, and is a proper exercise of the police power of the State. ^ But the federal court will examine into the circumstances under which the wires are so ordered underground to satisfy itself that this act is in reality a fair and proper exercise of such police power.* On this point the court of appeals in New York says, "The precise scope and range of operation of these sections^ within a State are not quite apparent, and cannot easily be defined ; but this much, at least, must be true, that under them no telegrnph company could interfere with the use of the streets and highways of the State, except under such regulations as are prescribed for the control of all telegraph companies ^ Western Union Telegraph Co. v. American Union Telegraph Co., 9 Biss. 7-2, 190; Western Union Telegraph Co. v. Burlington & S. W. Ry. Co., 3 McCr. 130 ; 8. c. 11 Fed. Rep. 1; Mercantile Trust Co. v. Atlantic & Pacific R. R. Co., 63 Fed. Rep. 513; Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co., 19 Fed. Rep. 6G0 ; post, § 170. 2 Pensacola Telegraph Co. v. Western Union Telegraph Co., supra. • American Rapid Telegraph Co. v. Hess, 125 N. Y 641 ; People, ex rel. N. Y. Electric Lines Co. v. Squire, 145 U. S. 175; Western Union Telegraph Co. v. Mayor of New York, 38 Fed. Rep. 552. See also post, § 166. ■* AVestern Union Telegraph Co. v. Mayor of New York, supra. 6 U. S. R. S., §§ 5263^ 5268, 3964. 40 THE LAW OP ELECTRICITY. within the State, nor could such companies interfere with streets and highways in the State, so as to materially impair their usefulness as ordinary highways, nor could these con- gressional acts deprive the State of its control over its high- ways, and its right to regulate their use under the police power for the public benefit. The laws of Congress are fully satisfied by the permissive grant to the plaintiff telegraph company, of which it is perfectly feasible for it to avail itself, to place its electrical conductors in the sub- way constructed beneath the surface of the streets. " ^ And "^ the United States Circuit Court in the same State says, "Nevertheless persons and corporations enjoying grants and privileges from the United States, being federal agen- cies, and engaged in interstate commerce, are not be- yond the operation of the laws of the State in which they reside or carry on their business, and it is only when these laws operate to unfairly impede them in the exer- cise of these federal privileges or duties, and transcend the power which each State possesses over its purely domes- tic affairs, whether of police or internal commerce, that they invade the national jurisdiction. . . . The statutes which the defendants are proceeding to enforce unquestion- ably belong to the category of police regulations, the power to establish which has been left to the individual States. But statutes of this class may sometimes trench upon the federal jurisdiction, and when their provisions extend beyond a just regulation of rights for the public good, and unreason- ably abridge or burden the privilege which the national authority confers, they cease to be operative. The State, when providing by legislation for the protection of public health, public morals, or public safety, is subject to the paramount authority of the Constitution of the United States, and may not violate rights secured or guaranteed by that instrument, or interfere with the execution of the powers 1 American Rapid Telegraph Co. v. Hess, 125 N. Y. 641. FEDERAL FRANCHISE OF TELEfiRAPH COMPANIES. 41 confided to the general government. ^ ... It is not apparent how tlie regulation proposed impairs in any just sense the privilege granted to the complainant [telegraph company] hy the laws of Congress. The privilege to maintain tele- graph wires over and along post roads is not to be considered so literally as to exclude regulations by the State restricting the mode of construction and maintenance which the public interest demands, but is to be construed so as to give effect to the meaning of Congress, which was to grant an easement which would afford telegraph companies all necessary fran- chises, and which, to that extent, should be beyond the reach of hostile legislation by the States. Thus interpreted, the grant is no more invaded when the regulations require the wires to be placed in conduits underground than it would be if they were required to be placed in conduits along the surface of the streets, and when this becomes necessary for the comfort and safety of the passengers, such a regulation is as legitimate as one would be providing that the poles should be of a uniform or designated height, or should be located at given distances apart, or at designated places along the street." - § 47. Act grants an Easement. — The act in question grants to the companies which accept its provisions a species- of easement or right of way to set poles and string wires on post roads. ^ But this easement is not absolute; that is, it is dependent upon the consent of the owner of the land, or the condemnation thereof by such proceedings as the State laws may give,^ and is also, as above stated, subject to such ^ Western Union Telegraph Co. v. IMayor of New York, 38 Fed. Rep. 552; Mugler c. Kansas, 123 U. S. 623; Morgan v. Louisiana, 118 U. S. 462, 464. 2 Western Union Teletjraph Co. v. ]\Iayor of New York, 38 Fed. Rep. 552. To the same effect, Clausen Brewing Co. r. Baltimore & Ohio Tele- graph Co., 2 Amer. El. Cas. 216. 8 Western Union Telegraph Co. i*. Mayor of New York, 38 Fed. Rep. 552; Ilewett i'. Western Union Telegraph Co., 4 ^lackay, 424. * Pensacola Telegraph Co. i;. Western Union Telegraph Co., 96 U. S. 1; 42 THE LAW OP ELECTRICITY. reasonable police regulations as the State laws may enact for protecting the safety and health of the inhabitants of the State. 1 § 48. Act does not allow Telegraph to displace Electric Light Wires. — The easement granted by the Federal Act does not authorize the telegraph company to require an electric light company to remove its poles and wires which it has already placed in the streets under due authority of the municipal government; but, on the other hand, if the telegraph company has its lines already placed in the street, an electric light company cannot place its lines so near to the telegraph wires as to interfere with the successful use of the latter for the transmission of messages. ^ Presumably the same rules hold good in regard to telephone wires and electric railway wires. ^ It may be questioned, however, whether if any of these latter lines were so placed on a post road of the United States as to render it impossible for a telegraph company to occupy the same under its federal license, the federal courts would not order the removal or modification of the interfer- ing structure so as to allow the telegraph company to enjoy its rights under the franchise. § 49. State Statute requiring Local Agent of Foreign Com- panies. — Another instance of a State statute which has been upheld, at least by a State court, as being a valid exercise of the police power of the State, although placing a limita- tion upon the use of the federal franchise of telegraph companies, is the statute which exists in many States for- bidding foreign corporations to do business within the State without having a usual place of business or agent upon whom processes in law can be served. Thus in Alabama a tele- American Telegraph & Telephone Co. v. Pearce, 71 Md. 535. See post, ch. Eminent Domain. 1 Western Union Telegraph Co. v. Mayor of New York, .38 Fed. Rep. 552. 2 We.stern Union Telegraph Co. v. Guernsey & Scudder Light Co., 46 Mo. App. 120. See also § 223, post. 8 See post, §§ 213-222, 223, 224. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 45 graph company, incorporated under the laws of another State, intended to construct a telegraph line along the railway of a railroad company. It had not obtained any right of way over this railway, nor had it any property in Alabama, nor had it constructed or attempted to construct any line of tele grai)h in that State. It brought a bill in equity, however, to prevent the proposed obstruction of its intended building by another telegraph company, which had existing lines in the State and over the railway in question. The Supreme Court of Alabama refused to grant the injunction, holding that although the Act of Congress gave the rights which it purported to give, yet that as section 4, article 14 of the State Constitution of Alabama provided that no foreign cor- porations should do any business in that State without having at least one known place of business and an author- ized agent or agents therein, which the complainant had not, and as this section of the Constitution was a valid exercise of the police power of the State, the complainant could not invoke the protection and preventive jurisdiction of a court of equity by the extraordinary process of injunction. The court relied also, however, upon the remote and specula- tive apprehension of injury which was the basis of the application.^ § 50. Acceptance of Franchise in "Writing. — The statute which creates this franchise provides that it shall l)e avail- able only to such telegraph companies as shall file a written acceptance thereof with the postmaster-general, and the lack of such acceptance is a fact which may be set up in a collat- eral proceeding to defeat the right. Thus where a telegraph company brought proceedings to condemn a right of way for its telegraphic line over a bridge which was to be built by a bridge company across a navigable stream, the court held that while the federal statute granted the franchise on which 1 American Union Telegraph Co. v. "Western Union Telegraph Co. , 67 Ala. 2G. 44 THE LAW OF ELECTKICITY. the telegraph company based its right, and that this statute would override any State laws, yet the right of the plain- tiff to claim the franchise was defeated by the fact that it had not filed the necessary written acceptance with the postmaster-general. ^ § 51. state Statutes as to Delivery of Messages. — The decisions in Pensacola Telegraph Company v. Western Union Telegraph Company,^ and Western Union Telegraph Com- pany V. Texas, ^ having established the position of the tele- graph as an instrument of interstate commerce, it follows that any State statute which imposes any impediment to or attempts to regulate the operations of telegraphy between the States is unconstitutional as being opposed to the clause of the Constitution of the United States, which vests in Congress the sole power of regulating interstate commerce.* Thus it has been held that a statute which requires telegraph companies to deliver all despatches by a messenger to the persons to whom the same are addressed, or to their agents, on payment of any charges due for the same, provided such persons or agents reside within one mile of the telegraph station or within the city or town where such station is, places an impediment to or attempts to regulate interstate commerce so far as concerns messages delivered outside the State, and is therefore to that extent void.^ And also that a State statute which gives preference to communications for or from officers of justice, and allows arrangements with newspapers for transmission of intelligence of general and public interest out of regular order, is, as .to messages sent or delivered in other States, an attempt to regulate interstate 1 Chicago & Atchison Bridge Co. v. Pacific Mutual Telegraph Co., 36 Kan. 113. ^ OQV. S. 1. 8 105 U. S. 460; see ante, § 41. 4 Const, Art. 1, § 8; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347; Butner v. Western Union Telegraph Co., 37 Pac. Rep. 1087. 5 Western Union Telegraph Co. v. Pendleton, 122 U. S. 347; see also post, §§ 417, 484, 485. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 45 commerce, and therefore unconstitutional and void.^ Tiic court says, "The attempted regulation Ijy Indiana of the mode in which messages sent by telegraph companies doing business within her limits shall be delivered in other States cannot be u{)hcld. It is an impediment to the prosecution of that form of interstate commerce which is as much beyond the power of Indiana to interpose as the imposition of a tax by the State of Texas u{)on every message trans- mitted by a telegraph company within her limits to other States was beyond her power," and proceeds to describe the conflicting legislation that would arise if such statutes were given force outside of the State which enacts them, and says that the purpose of giving the power of regulating interstate commerce to Congress was to prevent just such a conflict of State laws, and that the statute could not be supported as an exercise of the police power of the State, for such power must not encroach upon the powers of Congress as vested in it by the Constitution. When, however, the message was sent and delivered wholly in the State in which the act exists, and in which suit is brought, the constitutional ques- tion does not arise, for such a message is in no sense an element of interstate commerce, nor does the fact that the company sending it also does an interstate business alter the case. 2 Where the message is sent from without the State to a point of delivery within the State, if the statute in ques- tion is merely declaratory of the common-law duty of tele- graph companies to deliver despatches promptly to the persons to whom they are addressed, it has been held in a State court that the statute is not opposed to the interstate commerce clause of the federal Constitution, even though it adds a penalty for breach of the statute, since it places no impediment in the transaction of interstate business, but merely reinforces a duty previously existing by a penalty 1 Western Union Telegraph Co. v. Pendleton, supra. 2 Western Union Telegraph Co. v. Bright, 20 S. E. Rep. 146. 46 THE LAW OP ELECTRICITY. for its non-performance. 1 In such cases, of course, there is no question of the extra-territorial force of the State stat- utes, as there is when an attempt is made to apply such a statute to a message delivered outside of the State ; but it seems doubtful whether a statute which adds an arbitrary penalty to the failure to deliver a message promptly does not, in effect, regulate interstate commerce as to messages sent between States, and whether the federal courts would not hold such an act to be to that extent unconstitutional. ^ It has been decided in North Carolina that where a tele- graph message is sent between two points in the same State, it is not in effect interstate commerce, although in order to reach the second of these points it is obliged to travel out- side of the State line for a short distance. In this case it is held that since the telegram starts and stops in one State, the mere fact that the line over which it goes is out- side of this State in one portion of its route does not render the message an interstate commerce message in such a sense that the statute which fixes the rate to be charged for send- ing the message from one place to the other is a regulation of interstate commerce. This decision has not been before the Supreme Court of the United States, and it might be doubted whether the decision would be upheld in that court. 3 § 52. state Tax Statutes. — The position of the telegraph as an instrument of interstate commerce and as a govern- ment agent, as well as enjoying a federal franchise under the Act of Congress above set forth, renders it exempt from any State tax which is based in any way upon the interstate or governmental business of the telegraph company. This 1 Western Union Telegraph Co. v. Tyler, 18 S. E. (Va.) 280 ; Western Union Telegraph Co. v. Bright, 20 S. E. Rep. 146 ; AVestern Union Tele- graph Co. V. James, 90 Ga. 254. 2 Cf. Western Union Telegraph Co. v. Pendleton, supra. 2 Railroad Commissioners v. Western Union Telegraph Co., 113 N. C. 213. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 47 subject is considered at length in the chapter on Taxation,' and it is suificient to give in this place only a summary account of the results. § 53. Tax on Receipts from Messages. — In many States there have been enacted statutes which tax telegraph com- panies ujjon the receipts of the company from the transmis- sion of messages. It is clear that so far as their receipts are from messages sent from one State into another, such a tax is a tax on interstate commerce, and so far as their receipts are from government messages, such a tax is a tax upon the doings of the federal government. It has therefore been held by the federal courts that such a tax is unconstitu- tional and void as to government messages and as to any other messages except those sent and delivered wholly within the State. If the reccii)ts of the several classes can be separated, the tax will be sustained as to State messages and avoided as to the others. ^ § 54. Tax on Franchise. — For similar reasons a tax upon the franchise of a telegraph company granted to it by the Act of Congress above referred to cannot be taxed, for it is a grant made by the federal government for the purpose of expediting interstate commerce, and for government mes- sages.^ But a tax upon the franchise of a telegraph company to be a cor])oration with usual corporate powers, or upon its capital stock, as indicating its corporate franchise, is not obnoxious to the provisions of the federal constitution, and is within the power of the State government which grants the franchise.* 1 Post, §§ 817-842. * Western Union Telegraph Co. ?'. Texas, 105 U. S. 460; Ratterraan V. Western Union Telegraph Co., 127 U. S. 411; Leloup v. Port of Mobile, 127 U. S. G40; Western Union Telegraph Co. v. Pennsylvania, 128 U. S. 39; Western Union Telegrapli Co. v. Alabama State Board of Assess- ment, 132 U. S. 472; pout, §§ 819-824. ' San Francisco v. Western Union Telegraph Co., 96 Cal. 140. * Western Union Telegraph Co. v. Atty.-Gen. of Massachusetts, 125 U. S. 530; post, §§ S34-S42. 48 THE LAW OF ELECTRICITY. § 55. Tax on Business. — 'Any tax which is imposed on the total business of a telegraph company doing an interstate or governmental business is unconstitutional for the above reasons unless it excepts the two classes of business above stated, in which case it is valid ; and this is true whether the tax be in the form of a license for the privilege of doing busi- ness, or a tax on the business done, or a tax on the mileage of the telegraph company as a measure of its business. ^ § 56. Tax on Poles. — A tax which is imposed on a tele- graph company by the number of its poles placed in the streets is not a tax on the federal franchise when it appears that the tax is a reasonable rental of the portion of the streets occupied by the poles, for the Act of Congress does not assume to allow the taking of private property by any telegraph company without compensation, and therefore the tax may be sustained on the ground of a reasonable rental. ^ So when the tax on poles is shown to be a remuneration to the city authorities for the care and supervision of the poles and wires, in the exercise of the police power of the city, and for the safety and health of the inhabitants, it is not invalid, provided the remuneration so given is a reasonable one, having regard to the cost and expense of the care so bestowed, for this, again, like ordering the wires under- ground, is merely a proper limitation of the use of the federal franchise.^ I Postal Telegraph Cable Co. v. City Council of Charleston, 153 U. S. 692 ; s. c. 50 Fed. Rep. 419; Leloup v. Port of Mobile, 127 U. S. 640; Commonwealth v. Smith, 92 Ky. 38 ; Western Union Telegraph Co. v. City Council of Charleston, 56 Fed. Rep. 419; post, § 826. 3 St. Louis V. Western Union Telegraph Co., 149 U. S. 465 ; s. c. 39 Fed. Rep. 59. 8 Allentown ?•. Western Union Telegraph Co., 148 Pa. St. 117; Chester V. Philadelphia, Reading & P. Telegraph Co., lb. 120; Western Union Tele- graph Co. V. Philadelphia, 12 Atl. Rep. 144; Philadelphia v. Postal Tele- graph Cable Co., 67 Hun (N. Y.) 21; Philadelphia v. Western Union Telegraph Co., 40 Fed. Rep. 615; New Orleans v. Great Southern Tele- phone, etc. Co., 40 La. An. 41 ; post, § 833. FEDERAL FRANCHISE OF TELEGRAPH COMPANIES. 49 § 57. Tax on Property. — Any tax which is directly laid on the tangible property of a telegraph company within the State which levies the tax is valid and constitutional, and not subject to any of the objections arising out of the federal franchise or the interstate or governmental business of the telegraph company, for the telegraph company, as to such property, enjoys the protection of the State laws, just as any corijoration does, and should pay for this protection.^ § 58. Summary. — The effect of the above decisions seems to be that the telegraph company, having accepted the Act of Congress, cannot be excluded from any State or portion thereof, nor can it be impeded in the exercise of its federal franchise, but it cannot take private property therefore without compensation ; that it is in some points subject to the police and tax powers of a State just as any other corpo- rations, and that a federal court will always look into the real facts of the case and see that these principles are carried out. * Western Union Telegraph Co. v. Atty.-Gen. of Massachusetts, 125 U. S. 530; Railroad Co. v. Peniston, 18 Wall. 5; People v. Gold & Stock Telegraph Co., 98 N. Y. 67 ; People, ex rel. Western Union Telegraph Co. t;. Dolan, 126 N. Y. 166. 60 THE LAW OF ELECTRICITY. CHAPTER lY. FRANCHISES OR RIGHTS OF WAY, STATE STATUTES. 59. Necessity of Franchise or Right of Way. 60. Right to grant Franchise belongs to Legislature. 61. State Franchise for Telegraph Line over Highways and Waters. 62. Right of Way on Railroads, State Statutes. 63. Right of Way over Private Lands, State Statutes. 64. Statutes do not authorize Bridges. 65. Acquisition of Right of Way by Purchase, Statutes. 66. Eminent Domain, State Statutes. 67. Right of Eminent Domain con- ferred by Statute. 68. States where no Eminent Domain Statutes. 69. Eminent Domain Statute, Ala- bama. 70. Eminent Domain Statute, Arkan- sas. 71. Eminent Domain Statute, Cali- fornia. 72. Eminent Domain Statute, Colo- rado. 73. Eminent Domain Statutes, Florida, Georgia. 74. Eminent Domain Statutes, Illinois, Indiana, Iowa. 75. Eminent Domain Statutes, Kansas, Louisiana, Maryland. 76. Eminent Domain Statute, Michi- gan. §77. 78. 79. 80. 81. 82. 83. 84. 85. 86. 87. 89. 90. 91. 92. 93. 94. 95. 96. 97, Eminent Domain Statutes, Missis- sippi, Missouri. Eminent Domain Statutes, Ne- vada, New York. Eminent Domain Statutes, North Carolina, Ohio. Eminent Domain Statutes, Ore- gon, Tennessee, Texas. Eminent Domain Statutes, Vir- ginia, Washington, Wyoming. Telephone Franchise, State Stat- utes. Electric Light Franchise, State Statutes. Electric Railway, State Statutes. Consent of Municipal Authorities. Statutes against Prescription. Connecticut : Telegraph, Tele- phone, Electric Light or Power. Illinois : Telegraph and Tele- phone. Maine : Electric Wires. Massachusetts : Telegraph. Michigan : Electric Wires. New Hampshire : Telegraph and other Wires. New Jersey . Telegraph and other Wires. New York : Electric Wires. Pennsylvania ; Electric Wires. Rhode Island : Telegraph and other Wires. Vermont : Telegraph Posts and Wires. § 59. Necessity of Franchises or Rights of "Way. — Electric companies are in almost every case, as was said previously, ^ compelled to use public highways for the transaction of their business. It is true that in some instances small electric Supra, § 38. FRANCHISE OR RIGHT OF WAY. 61 railways are operated wholly upon private grounds, as, for instance, tramways in mines and tramways on manufactur- ing premises for the transportation of freight. There are also many isolated electric light plants for lighting single manufactories or large business houses, and there are also instances of telephone and telegraph lines on private premises; but by far the larger proportion of all companies doing any of the above businesses require a right of way over public highways. This right consists of a right to set their poles and string their wires, and maintain the same on and over public highways. § 60. Right to grant Franchises belongs to Legislature. — The power to grant the right to construct and maintain, upon, along, and over a public highway, such structures as are necessary for the operation of telegraph, telephone, electric light and electric railway plants resides in the first instance in the legislature of the State, in which body is vested the general right of travel of the public over public highways, which right is necessarily somewhat abridged by such struc- tures.^ This "principle was well expressed by Mr. Chief Justice Gibson in a case in Pennsylvania, as follows : — "To the Commonwealth here, as to the King in England, belongs the franchise in every highway as a trustee for the public. "2 In most instances, however, as will be seen later, 3 the legislatures have delegated to the municipal au- thorities the right to grant such franchises within the limits of their municipalities because the various matters of detail, such as the number of poles, their size, height, etc., their position on the highway, the number of wires to be strung, ^ Atty.-Gen. v. Metropolitan Railroad Co., 125 Mass. 515, 517 ; Com- monwealth V. Temple, 14 Gray, 69 ; Fanning r. Osborne, 102 N. Y. 441, 447; O'Connor v. Pittsburg, 18 Pa. St. 187, 189; Saginaw Gas Light Co. V. Saginaw, 28 Fed. Rep. 529; Citizens St. Ry. Co. v. City Ry. Co., 56 Fed. Rep. 746. 2 O'Connor v. Pittsburg, 18 Pa. St. 187, 189. * Post, chap. vi. 52 THE LAW OP ELECTRICITY. etc., are clearly germane to the usual powers given to municipal authorities to regulate -and control the use of the streets within their limits. The manner in which this dele- gation of authority is made, and the amount of discretion on this subject given by the legislature to the municipal authorities vary largely in different States and as to differ- ent companies ; for instance, in case of telegraph companies, owing to the Act of Congress above considered, ^ the State legislature cannot pass any law restricting the enjoyment by telegraph companies of their federal franchise over post roads; and therefore, in most instances, the State legisla- tures, by direct statute, grant a similar franchise to telegraph companies, and grant to the municipal authorities at most only the right to designate the location of the poles on the highways, their size, form, etc., while in the case of other electric companies the State legislature sometimes, either by charter or general laws, gives an absolute right to the company to set its poles and string its wires along public highways, subject only to regulation by the municipal authorities as to location, etc., and sometimes leaves it dis- cretionary in the municipal authorities to grant or refuse such a right altogether. § 61. state Franchise for Telegraph Line over Highways and "Waters. — Conformably to the Act of Congress above referred to, the State legislatures of almost every State have enacted statutes granting telegraph companies the right of construc- tion and operation of their lines upon the highways of the State. The phraseology of the statutes varies considerably ; but the grant is substantially a right to construct a line or lines of telegraph on or along any of the public roads and highways, or generally across any of the waters within the limits of the State, by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the wires, provided the same shall not be so constructed as to incommode 1 Supra, chap. iii. FRANCHISE OR RIGHT OF WAY. 53 the public use of the roads or highways or injuriously interrupt the navigation of said waters.^ If a telegraph comj)any constructs its line along and across a bridge over a navigable stream, in which there is a draw, it must so arrange its lines of telegraph as not to interfere with the opening and closing of the draw nor the passage of vessels through. Any proposed construction which interferes with navigation will be enjoined by a court of equity. ^ This main provision of the statute is sometimes added to or qualified by various subsidiary provisions, which will be considered in the following sections. § 62. Right of Way on Railroads, State Statutes. — It will be noticed that the grant of right of way, as stated in the foregoing section, specifies only public roads and highways and waters as the localities along and over which telegraph lines are to be constructed. In many States a further pro- vision is made by statute, including railroad lines among the localities over which the telegraph right of way may extend, and in such case it is usual to add also that the 1 Ala. Const. Art. 14, § 11; Code, § 1652; Stats. 1890, No. 5: Ark. Dig. G422; Acts 1885, Act 1U7, § 1: Cal. Civ. Code, § 530: Col. Ann. Stat. §§ 588, 591: Conn. Gen. Stat. § 3944: Fla. Rev. Stat. §§ 2252, 2256, 2257: Ga. Laws 1889, No. 672, § 1: 111. Ann. Stat. ch. 134, par. 2: Ind. Annot. Stat. [Ed. 1894], § 5501: la., McC. Ann. Code, §§ 2103, 2104: Kan. Gen. Stat. § 1383: Ky. Const. §199: La. Kev. Stat. §696; Acts 1880, No. 124: Me. Acts 1885, c. 378, § 2: Md. (and postal routes), Pub. Gen. Laws, Art. 23, § 224: Mass. Pub. Stat., ch. 109, §2: Mich. Howell's Ann. Stat. §§3686, 3697: Minn. G. S. 1894, §2641: Miss. Ann. Code, §854: Mo. Rev. Stat. §2721: Neb. Comp. Stat. ch. 89 a, § 14: Nev. Gen. Stat. § 917: N. H. Pub. Stat. ch. 81, § 1: X. J. Rev. p. 1175, §8: N. Y. Laws 1890, c. 566, Art. 8, § 102: N. C. Code, § 2007: Ohio Rev. Stat., Smith & Benn., § 8035, cl. 227 : Oreg. Hill's Annot. Laws, §§4160, 4161: Pa. Bright. Purd. Dig., p. 1628, § 6: Tenn. Code, §§ 1535, 1536, 1928; Code Suppl. Shannon, p. 134, § 1: Tex. Sayles Annot. Stat. Art. 622: Vt. Rev. Laws, § 3633; Laws 1888, No. 32: Va. Code, § 1287: Wash. Hill's Stats. & Codes, § 1561: Wise. San. & Berr. Ann. Stat., 1778. 2 Pacific Mutual Telegraph Co. v. Chicago & Atchison Bridge Co , 36 Kan. 118; and see also jwst, §§ 273, 274. 54 THE LAW OF ELECTRICITY. construction must be such as not to interfere with the usual operation of the railroad. ^ In other States the right to con- struct lines of telegraph is extended so as to include the lands of any and all corporations. ^ In the two latter States the statutes provide that the use by the telegraph company must not interfere with the use of the corporation to whom the lands belong.^ § 63. Right over Private Lands, State Statutes. — In SliU other States the statutes extend the right of way of telegraph companies over lands owned by private individuals.* In Ohio and Missouri this right is limited so as not to allow the occupation of buildings or dwellings by the telegraph company, and in the former State no pole can be set in the yard of a building unless absolutely necessary.^ And in New Hampshire it is provided that the poles must be so set as not to interfere with any private way leading to land or buildings, or with the use of the land and building.^ In 1 Ala. Code, § 1652; Ark. Acts 1885, ch. 107, § 1; Col. Ann. Stats. § 591 ; Fla. Rev. Stat. § 2257 ; Ga. Laws 1889, c. 276, § 1; 111. Ann. Stat. ch. 134, par. 2; La. Acts 1880, No. 124; Me. Acts 1885, ch. 378, § 13; Mich. Howell's Ann. Stat. § 3686 ; Miss. Ann. Code, § 854; N. C. Code, § 2007; Ohio Rev. Stat., Smith & Benn., § 3459; Tenn. Code Suppl. Shannon, p. 134, § 1; Vt. Rev. Stat. §§ 3638, 3639; Va. Code, § 1287. 2 Ala. Code, § 1654; Kan. Gen. Stats. § 1384; La. Acts 1880, Xo. 124; Mo. Rev. Stats. § 2722; Ohio, Rev. Stat, Smith & Benn., §§ 3458, 3468, 3469. 8 Ohio Rev. Stat., Smith & Benn., §§ 3458, 3468, 3469; Mo. Rev. Stats. § 2741. * Ala. Code, § 1654; Ark. Act 1885, ch. 107, § 1 : Cal. Civ. Code, §536; Col. Ann. Stat. § 593; Ga. Laws, 1889, ch. 276, § 1; 111. Ann. Stat, ch. 134, par. 2 ; la. McC. Ann. Code, § 2103 ; Kan. Gen. Stats. § 1384 ; La. Laws 1880, No. 124; Mich. Howell's Ann. Stat. § 3686; Mo. Rev. Stat. § 2722; Nev. Gen. Stat. § 920; 3 N. Y. Rev. Stat., Birdseye ed., p. 3034, § 14; Laws 1890, ch. 566. Art. 8, § 102; N. C. Code, § 2009; Ohio Rev. Stat., Smith & Benn., § 3456 ; Oreg. Hill's Ann. Laws, § 4160; Tenn. Code, § 1535; Shannon's Code Suppl. p. 134, § 1 ; Tex. Sayles' Ann. Stat. Art. 623; Va. Code, § 1288; Wash. Hill's Stats. & Codes, § 1548. 6 Mo. Rev. Stat. § 2740; Ohio Rev. Stat., Smith & Benn., § 3457. « N. H. Pub. Stat. ch. 81, § 4. FRANCHISE OR RIGHT OP WAY. 55 still other States the statutes extend the telegraph company's right of way so as to include a way over the public or State lands. 1 § 04. Statutes do not authorize Bridges. — Owing to the broad scope of the language used in some statutes authorizing telegraph companies in the construction of their lines to erect posts, piers, and abutments for supporting the wires over streams and waters, it has been deemed necessary in some States to enact that these statutes shall not be so con- strued as to authorize the construction of any bridge across any of the waters of the State. ^ § Qo. Acquisition of Right of "Way by Purchase, Statutes. — It is evident that where the statutes authorize telegraph lines to be run over private or corporate lands or over the right of way of railroads or over public highways (except in those States in which a telegraph line is not considered an additional servitude on the highways, as will be seen here- after)^ the construction of the telegraph line upon these lands, railways, and highways involves an encroachment upon the rights of the owners, pro tanto, and therefore a taking of private property for the use of the telcgrajih. In order to effect this, there must be a power in the telegra])h company to contract with the owner of the land for the pur- chase of the right, if it is to be acquired by purchase, and this power has been expressly given by statute in a few States.* This power would probably be implied from the 1 Ark. Acts 1S85, ch. 107, § 1; Ga. Laws 1889, ch. 276, § 1 ; Ta. McC. Ann. Code, § 2103; La. Rev. Stat. § 69G, Acts 1880, No. 124; I^Iich. How. Ann. Stat. § 3686 ; Miss. Ann. Code, § 854 ; Tenn. Code Suppl. Shannon, p. 134, § 1. 2 Conn. Gen. Stat. § 3944; Ga. Laws 1889, ch. G72, § 1; Md. Pub. Gen. Laws, Art. 23, § 224; iMass. Pub. Stat. ch. 109, § 2; Mich. How. Ann. Stat. § 3097 ; N. Y. 3 Rev. Stat. Birdseye ed., p. 3032, § 5. 8 Post, § 116. * Ala. Code, § 1653; Col. Ann. Stat. § 592; Ga. Acts 1889, ch. 276, § 2 ; N. C. Code, § 2008 ; Oreg. Hill's Annot. Stat. § 4161 ; Va. Code, § 1288. 56 THE LAW OF ELECTRICITY. existence of the right, which subject will be discussed later in the chapter on Eminent Domain. § 66. Eminent Domain, State Statutes. — It is further evident that in case the owner of the lands, railways, or soil under the railways or highways, refuses to consent to the construction of the telegraph line thereupon or to sell the right of construction, the State statutes giving telegraph companies the right to construct their lines over private property would be unconstitutional unless they were supple- mented by provisions conferring upon telegraph companies the right of eminent domain for the purpose of construction of their lines; that is, the right to take the private property necessary for this purpose upon making due compensation therefor to the owner thereof; and accordingly in most States, in some form or another, this right is granted by statute to telegraph companies. The construction and effect of these statutes will be discussed later in the chapter on Eminent Domain.^ The purpose at present is merely to give the statutory provisions on this subject. § 67. Eminent Domain conferred by Statute. — By examin- ing the statutes cited in the note below it will be found that in all the United States, with a few exceptions, which will 1)C noted later, the legislatures have granted telegraph com- panies the right to extend their lines over private lands, and generally over the right of way of railroads, and have coupled with this grant the right to acquire this location for their lines by condemnation proceedings or right of eminent domain, in case the owner of the property refuses to sell the right or to consent to the construction gratuitously. ^ The ^ Poi Rev. Stats. §§ 2252, 2256, 22.57. 8 McC. Ann. Code, §§ 2103, 2105, 725, 896. » Gen. Stats. § 555, cl. 22. '« Const. §§ 163, 199. " Acts 1880, No. 124. " Acts 18S5, ch. 378. 18 Acts 1886, ch. 161. " Pub. Stat. ch. 109, Acts 1884, ch. 306, Act 1889, ch. 434. « G. S. 1894, § 2641. ^* Rev. Stats. §§ 2721 et seq. " Comp. Stat ch. 89 a, § 14. i* Pub. Stats, ch. 81. " Rev. Supp. p. 1022, §§ 1 e< seq. «> Laws 1890, ch. 566, Art. 8, § 102. « Bright. Purd. Dig. p. 1028, § 4, Suppl. p. 2406, Laws 1891, No. 168. « Pub. Stats, ch. 242, § 48. 98 Code Suppl., Shannon, p. 134, § 1. « Laws 1884, No. 47, No. 23, No. 114; Laws 1882, No. 74. ^ Code, §§ 1287 et aeq. "« Hill's Stats. & Codes, §§ 1547 et seq., 1561. 64 THE LAW OF ELECTRICITY. thereof, for a fuller statement of which, see the preceding sections.^ In Indiana a separate telephone act exists, which, so far as franchises are concerned, gives to telephone com- panies the power to acquire, by purchase or otherwise, and hold and convey, such real estate as may be proper for the purpose of erecting and maintaining its lines of telephone and the appliances and buildings requisite for its business, and to acquire such real estate and rights of way as may be necessary for its business under the writ of assessment of damages, as fully as if the act in relation to said writ were incorporated in the telephone act.^ In Kansas an express statute puts telephone companies under the general telegraph law. 3 In Michigan a special telephone act gives telephone corporations a right of way over highways and waters similar to that of a telegraph company, but gives no right of emi- nent domain.* In West Virginia a limited right of way is given by statute, so that telephone companies desiring to extend lines of telephone in that State may place poles for wires along any county road, by and with the consent of the county court of the county through which such lines may pass, provided they do not interfere with the public use of the road or with any fruit or shade trees. ^ § 83. Electric Light Franchise, State Statutes. — The USe of electric light for lighting the streets of a town or city is so generally considered as a portion of the proper care of the municipality, and as such, within the powers of the muni- cipal authorities as to the regulation of posts and wires, that special statutes granting electric light companies the right to set their poles and string their wires in public streets are not very numerous. In several States such companies are expressly included with the telegraph and telephone iu 1 Supra, §§ 61 e; seq. 2 Ann. Stat. § 5523. » Gen. Stat. § 1160. * Howell's Ann. Stat., Suppl., § 3718 d. 6 Code, App. p. 1059, § 1. FRANCHISE OR RIGHT OF WAY. 65 the statutes, so far as regards franchises. ^ In Indiana a special act gives the common council of cities and the board of trustees of towns the power to provide, by resolution or ordinance, for the erection and maintenance, in the streets, alleys, or other public places of said cities and towns, of poles, wires, posts, masts, skeleton towers, and other appli- ances or structures, as may be necessary for such purpose, or to grant such a right to other persons or corporations for the purpose of supplying inha])itants with electric light; and the corporation may acquire real estate and rights of way necessary for its business, under the writ of assessment of damages, in which case the damages shall include those occasioned by the proximity of such poles, wires, masts, posts, or skeleton towers, to real estate or improvements thereof, as well as damages arising from the appropriation of real estate. ^ In Mississippi incorporated cities, towns, and villages may grant to any person or corporation the use of the streets, alleys, and public grounds for the purpose of laying conduits for electric lights, to be used in furnishing or supplying the municipality or inhabitants, or any person or corporation with light; but the privilege shall not be granted for a longer period than twenty-one years, and shall not be exclusive.^ In North Carolina the statute gives any electric light companies the right to lay, extend, construct, build, erect, maintain, repair, and -remove all necessary or convenient towers, poles, cables, wires, conductors, lamps, fixtures, appliances, appurtenances, in, upon, through, and over, any and all roads, streets, avenues, lanes, alleys, and bridges, within and near any city, town, or village, where ^ Cal. Stats. 1893, ch. 130; Col. Ann. Stats. § 591; Iowa McC. Ann. Code, § 725; Kan. Gen. Stats. § 555, cl. 22; Ky. Const. § 163; Me. Acts 1885. ch. 378; Md. Acts 1886, ch. 161; ^lass. Acts 1889, ch. 398, Acts 1883. ch. 221 ; N. II. Tub. Stats, ch. 81; X. J. Rev. Supp. p. 742, § 1180; Pa. Rrirjht. Purd. T>l;r. p. 1628, §§ 4 et seq. « Ann Stats. §§4301-4305. 8 Auu. Code, § 2933. 6 66 THE LAW OF ELECTRICITY. said company may be located, provided that all such roads, streets, lanes, alleys, and bridges shall be left in as good condition as they were in at the time of using them as afore- said, and also provided that the authorities of the city, town, or village first give their consent.^ § 84. Electric Railway, State Statutes. — As has been previously seen, the electric railway is, in a general sense, a species of street railway. ^ The electric railway franchise, therefore, or right to lay tracks and operate cars in the public highways, is derived from statutes giving such rights to street railways, and on this subject the reader must be referred to the many excellent treatises on the subject of street railways. There have been, however, in a few States acts especially authorizing electric street railways to con- demn a right of way. In Alabama it is enacted that all street railroad companies shall have the right to use electric force, and may acquire by gift, purchase, or condemnation, real estate for their right of way, to wit, a strip, tract, or parcel of land not exceeding thirty feet in width, and may have the right to condemn and take possession of the land on payment to the owner of a just compensation, in the same manner as the condemnation of lands for public uses, pro- vided that incorporated cities and towns may regulate the construction of street railways within their corporate limits, and the kind of motive power to be used by them.^ In California the right of eminent domain is expressly given to electric railroads.* And in the same State electric cars are authorized to obtain franchises upon the streets,^ and the same motive power is allowed to steam railroads.^ In Michigan electric railways are by statute empowered to pur- chase all the rights and franchises of any toll road company on streets and highways, at a valuation to be agreed upon, 1 Priv. Laws 1889, ch. 35, § 2. « Supra, §§ 22 and 23. 8 Ala. Laws 1888-1889, No. 65. * Stats. 1893, ch. 130. 6 Stats. 1891, chs. 18, 19. « Stats. 1893, ch. 175. FRANCHISE OR RIGHT OF WAY. 67 and in case no agreement can be reached, the electric rail- way company may condemn the rights and franchises in the same manner as in the condemnation of railroad lands. ^ The power to set poles in the streets, and use electricity as the motive power, is considered later. ^ § 85. Consent of Municipal Authorities. — In the forCgoing statement of the statutory provisions regarding the franchise or right of way of electric companies in streets and high- ways, no mention has been made of the necessary consent of the municipal authorities to the setting of poles and string- ing of wires in the highways. This subject is so extensive that consideration of both the statutes and the decisions is reserved for a later chapter.^ § 86. Statutes against Prescription. — Connected with the subject of the right of electric companies to set their poles and string wires over highways and public lands is a stat- utory restriction against the acquisition of any prescrip- tive right by such occupation of the land. In some States statutes have been enacted providing that no easement or prescriptive right shall arise in favor of a telegraph or tele- phone company from its occupation or use of the land for the setting of its poles or the support of its wires. These statutes are as follows: — §87. Connecticut: Telegraph, Telephone, Electric Light or Power. — Xo person or corporation building and maintaining telegraph, telephone, electric light or power wires or fixtures or electrical wires, conductors, or fixtures of any kind in that State shall, by reason of any occupation or use of any build- ings or lands for the support of the wires of said person or company or by reason of said wires passing over or through any buildings or land, acquire by the continuance of such use or occupation any prescriptive right to so occupy or use the same.* 1 Mich. Acts. 1891, No. 67. 2 p^,f^ ^ 183-187. « Post, ch. vi. * Con. Gen. Stat. § 3943. 68 THE LAW OF ELECTRICITY. § 88. Illinois : Telegraph and Telephone, Electric Light. — Whenever any wire, pole, or cable used for any telegraph, telephone, electric light, or any other purpose, or for the purpose of communication, is or shall be attached to, or does or shall extend upon or over any building or land, no lapse of time whatever shall raise a presumption of any grant of, or justify a prescriptive right to such attachment or extension. ^ § 89. Maine : Electric Wires. — No enjoyment by any company, person, or association, for any length of time, of the privilege of having or maintaining posts, wires, or apparatus in, upon, over, or attached to any building or land of other persons shall give a legal right to the continued use of such enjoyment, or raise any presumption of a grant thereof. ^ § 90. Massachusetts : Telegraph. — No enjoyment by a person or corporation for any length of time of the privilege of having or maintaining telegraph posts, wires, or apparatus in, upon, or over, or attached to any building or land of other persons, shall give a legal right to the continued enjoy- ment of such easement, or raise any presumption of a grant thereof. ^ § 91. Michigan: Electric "Wires. — Whenever any wire or cable used for any telegraph, telephone, or electric light, or other electric purpose, is or shall be attached to, or does or shall extend upon or over any building or land, no lapse of time whatever shall raise a presumption or justify a prescription of any perpetual right to such attachment or extension.* § 92. New Hampshire : Telegraph and other Wires. — No enjoyment by a person or corporation for any length of time of the privilege of having or maintaining wires and their supports and appurtenances in, upon, over, or attached to 1 111. Stat. 1887, p. 208. 2 Me. Acts 1885, c. 378, § 7. 8 Mass. Pub. Stat. ch. 109, § 15. " Mich. How. Ann. Stat. § 4216 a. FRANCHISE OR RIGHT OF WAY. 69 any building or land of other persons, shall create an easement or raise any presumption of a grant thereof.^ § 93. New Jersey : Telegraph, Telephone, Electric Light, and other Wires. — Whenever any wire or cable used for any telegraph, telei)hoiie, electric light, or other wire or cable for other electric purposes, is attached to or extends over or on any building or land, no lapse of time whatsoever shall raise a presumption or justify a prescription of any perpetual right to such attachment or extension.*'^ § 94. New York : Electric "Wires. — Whenever any wire or cable used for any telegraph, telephone, electric light, or other electrical purpose, or for the purpose of communication otherwise than by the aid of electricity, is or shall be attached to, or does or shall extend upon or over any build- ing or land, no lapse of time whatever shall raise a presump- tion of any grant of, or justify a prescription of any perpetual riffht to such attachment or extension. ^ § 95. Pennsylvania : Electric Wires. — Whenever any wire or cable used for any telegraph, telephone, electric light, or other wire or cable for electric purposes, is attached to or extends on or over any building or land, no lapse of time whatever shall raise a presumption or justify a prescription of any perpetual right to such attachment or extension.* § 96. Rhode Island : Telegraph and other Wires. — Section 10 of Chapter 175 of the ])ublic statutes is amended so as to read as follows : " Section 10. No enjoyment by any persons, companies, or corporations for any length of time of the privilege of maintaining telegraph, telephone, electric light or other posts, wires, or apparatus in, upon, or over any lands or buildings of other persons or corporations shall confer a 1 Pub. Stat. N. H. ch. 81, § 17. 2 Rev. Supp. p. 1023, § 4. 8 N. Y. Rev. Stat., Birdseve, vol. 3, p. 3036, § 26. * Bright. Purd. Dig. p. 1G28, § 5. 70 THE LAW OF ELECTRICITY. legal right to the continued enjoyment of such easement or raise any presumption of a grant thereof. ^ § 97. Vermont: Telegraph. — No enjoyment for any length of time of the privilege of maintaining telegraph posts, wires or apparatus, upon or over the buildings or lands of other persons, shall give a right to the continued enjoyment of such easement or raise a presumption of a grant thereof.^ 1 R. I. Laws 1SS6, ch. 5G1. s Rev. Laws, § oGiO. Otherwise, St. 1894, Xo. 87. EMINENT DOMAIN. 71 CHAPTER V. EMINENT DOMAIN. § 98. Eminent Domain. 99. Eminent Domain is vested in the Lej^islature. 100. Constitutionality of Statutes. 101. Telegraph, Telephone, Electric Light and Electric Railways are Public Uses. 102. Just Compensation. 103. What is a Taking. 104. Poles and Wires in Highway. 105. Horse Railways not an Addi- tional Burden on the Highway. 106. New York Decisions, JStreet Rail- way an Additional Servitude. 107. Electric Railway no Additional Servitude. 108. Electric Railway no Additional Servitude {runtimied). 109. Electric Railway no Additional Servitude, (continued). 110. Telegraph and Telephone Pole.s are an Additional Servitude. HI. Telegraph an Additional Servi- tude. 112. Telephone an Additional Servi- tude. 113. Other Cases to the Same Point. 114. Right of Abutting Landowner to Access to Land. § 115. 116. 117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128. 129. 130. 131. Wires alone over Highway not an Injury to Landowner. Telegraph and Telephone Poles not Additional Servitude in some States. Difference between City Streets and Country Roads. Underground Wires. Condemnation of Location over Railways. Right to Condemn not defeated by Exclusive Contract of other Telegraph Company. Right Condemned must not In- terfere with Use of Railroad. Compensation to Railroad. Compensation to Landowner. Compensation to Landowner. Compensation to Landowner. Electric Ligiit Poles are Addi- tional Servitude. Condemnation of one Street Rail- way by Another. Failure to agree with Owner. Easement only acquired by Con- demnation. Proceedings must follow Statute. The Petition. § 98. Eminent Domain. — The foregoing chapter contained the various statutes of the several States conferring upon electric companies the power to acquire their right of way over highways, railways, public and private lands, by exercise of the right of eminent domain. A discussion will now be had of the various decisions upon this subject, involving the application of those statutes. Eminent domain is the right or power of a sovereign State to appropriate private 72 THE LAW OF ELECTRICITY. property to particular uses, for the purpose of promoting the general welfare.^ S 99. Eminent Domain is vested in the Legislature. — The legislature alone can authorize the taking of private property for public use, since the right of eminent domain is one of the inherent qualities of the sovereign power, and the legis- lature represents the sovereign power of the State, that is, the people. This right of eminent domain exists in the legislature without any special constitutional or statutory grant,2 but in almost every State an express provision has been inserted in the Constitution, stating the right with a certain limitation, i. e., that private property shall not be taken for public use without just compensation. This state- ment of the right in the Constitutions does not create the right, which, as was just said, exists in the legislature by virtue of its representing the sovereign power of the State, but is declaratory of the right with its limitation. ^ The right, however, may be delegated by the legislature to public corporations. § 100. Constitutionality of the Statutes. — The constitution- ality of the statutes given in the preceding chapter, and delegating the right of eminent domain to electric companies, depends upon two questions. First. Is the use for which the poles are erected and the wires strung a public use ? Second. Does the statute provide for "just compensa- tion " ? § 101. Telegraph, Telephone, Electric Light and Electric Rail- ways are Public Uses. — As has already been seen, the four great classes of electric companies are considered as carry- ing on a business which is a public business, and the property 1 Lewis, Em. Dom., § 1. 2 Prather v. Western Union Telegraph Co., 89 Ind. 519. 8 Lewis, Em. Dom., § 9; United States v. Jones, 109 U. S. 513, 518; Room Company v. Patterson, 98 U. S. 406 ; Prather v. Western Union Telegraph Co., supra. EMINENT DOMAIN. 73 which they use in this business is employed in a public use.^ That a telegraph is a public use of property in such a sense that the company may constitutionally enjoy the right of eminent domain, has been discussed and decided in a case in New Jersey."'^ In this case the constitutionality of an act giving the right of condemning a right of way to a telegraph company was the direct issue. The court held that a public use is one which the public may enjoy of right; that the duty of transmitting messages for the public was imposed upon telegraph companies in most States by statute, and the public enjoyed this of right, and therefore the telegraph is a public use ; that this view of the case was strengthened by the various statutory requirements by which telegraph com- panies were obliged to keep open offices at certain intervals on their lines, to submit to a limitation of price, and to transmit all despatches filed at their offices without dis- closure; and that these statutory provisions, taken in con- nection with the grant to the company of the right of condemnation, showed a clear intent of the legislature to lay the companies under an obligation to allow the public to use their lines under reasonable regulations, and that this constituted a public use. In States where express statutes lay the telegraph companies under an obligation to the public to transmit messages the public nature of the use is still more clear.^ The same view has been taken of telephone lines,'* which arc, in fact, as has been already stated, con- ^ State, Trenton & New Brnnswick Turnpike Co. v. American & Euro- pean Commercial News Co., 43 N. J. L. 381; Pierce v. Drew, 136 Mass. 75; New Orleans, ^lobile & Texas 11. R. Co. v. Soutliern & Atlantic Telegraph Co., 53 Ala. 211; Telegraph, Telephone Co. v. Forke, 2 Tex. App. 367; Irwin V. Great Southern Telephone Co., 37 La. An. G3 ; supra, §§ 4, 18, 20, 22. ^ State, Trenton & New Brun.swick Turnpike Co. v. American & Euro- pean Commercial News Co., 43 X. J. L. 381. ' Pierce v. Drew, 13G Mass. 77; American Telephoned: Telegraph Co. V. Pearce, 71 :Md. 530. * Irwin V. Great Southern Telephone Co., 37 La. An. 63. (-1 THE LAW OP ELECTRICITY. sidcred a species of telegraph.^ Electric railways are so plainly a public use that it seems unnecessary to cite au- thorities to this point. Moreover, the fact that they are generally constructed on highways, and do not add any new servitude thereto,^ renders the question comparatively unim- portant, since their construction over the highway does not involve the exercise of the right of eminent domain.^ The tendency to construct electric railways over private property at the present time may raise the question in the courts in the near future. The above remarks may be applied also to electric light lines. They are clearly public uses, but they are constructed in the highways, and as they are generally used to light the highway, are considered to make no addi- tion to the servitude of the way.* § 102. Just Compensation. — The second requirement to the constitutionality of the statutes given in the preceding chapter, delegating to electric companies the right of emi- nent domain, is that they shall provide just compensation for the property taken. If the statute fails to make such a pro- vision, it is unconstitutional, and a court of equity will enjoin the company from entering on land, or building its line, and will not compel the owner to sue for damages.^ An examination of the statutes as set forth in the foregoing chapter will show that in almost every case there is a pro- vision for compensating the landowner for the right to con- struct the line on his property. Of course where the line is constructed on a highway and does not add a new servitude, as in the case of an electric street railway, or (in some States) a telegraph line, or is constructed along a railway for ' American Telephone & Telegraph Co. v. Pearce, supra; supra, § 18. 2 Infra, §§ 107 et seq. 8 Cf. Jersey City & Bergen Ry. Co. r. Jersey City & Iloboken Horse R. R. Co., 20 N. J. Eq. G6. Cf. Rahn Township v. Tamaqua & L. St. Ry. Co., 31 Atl. Rep. 472. * Infra, § 126. ^ American Telephone & Telegraph Co. v. Pearce, 71 Md. 539; North Baltimore Passenger Ry. Co. v. North Avenue Ry. Co., 75 Md. 245. EMINENT DOMAIN. 75 railway purposes, there is no taking of property, and the owners of tlie adjoining lands, or the soil of the highway, are not entitled to compensation. ^ An important point con- cerning the constitutionality of these statutes is the time ■when the compensation is to be paid, whether before con- struction or after; which depends on the wording of the statute. Whether or not a statute which allows the con- struction to proceed before compensation is paid is consti- tutional, depends upon the language of the constitutional limitation on this point, and has been variously decided in different States on various kinds of public uses.^ In one case it was held that the provision for compensation must be of such a nature as to make it possible for the landowner to receive his compensation before the actual occupation or use of the property is begun, so that he is not obliged to wait for the issue of a lawsuit in order to recover his compensation. 3 In this case a telegraph company sought to condemn a right of way in Georgia over the way of a railroad company, and this proceeding was resisted by the railroad company and by the Western Union Telegraph Company, which already had its lines over the right of way of the railroad company. The court examined the statute under which the second telegraph company was proceeding, and found that its sections pro- vided simply a mode of assessing the damages of the land- owner for the building of the line, and did not give him any method of proceeding to enforce the payment of these damages before the construction began, nor any mode of appeal from the arbitrators who assessed the damage to any court for change in the amount of the assessment, nor for proceedings to recover it; that there was in reality no 1 Jersey City & Bergen R. R. Co. v. Jersey City & Iloboken Horse R. R. Co., 20 N. J. Eq. Gl ; Pierce v. Drew, 136 Mass. 77; American Telephone & Telegraph Co. i-. Pearce, 71 ^Nld. 535 ; see infra, §§ 107 et seq., 116. * See Lewis, Em. Dom., § 454. » Southwestern Railroad Co. v. Southern & Atlantic Telegraph Co., 46 Ga. 43. 76 THE LAW OF ELECTRICITY. sufficient provision for the compensation of the landowner for the taking of his i)roperty, and that the statute was therefore unconstitutional! And the better rule is that the compensation must be paid before construction begins. "-^ § 103. What is a Taking. — The specific question which arises most often in connection with electric companies in the matter of eminent domain is the question whether or not the construction, maintenance, and operation of the line constitutes a taking of private property, and this question has two branches ; first, when the lines are constructed over highways; second, when constructed over private property, including herein the construction of telegraph lines over the right of way of railroads. It is a well-settled principle of the law of eminent domain that the taking of an easement over land is as much a taking of the private property as taking the fee, and in like manner any interference of a per- manent nature with the property rights of the landowner is pro ^fm^o a taking of his natural right in the property.^ It would therefore be expected that the courts would decide that the construction of electric lines is a taking of private property, when they are constructed upon private property, and this will be seen later to be the actual decision of the courts. § 104. Poles and Wires in Highway. — Considering first the construction of electric lines upon highways, the main ques- tion is whether such lines constitute an additional use of the highway outside of those uses for which it was originally dedicated, for if so, it is the imposing of an additional ser- vitude upon the land of the owner of the soil beneath the highway, and constitutes a taking of his property for which 1 Southwestern Railroad Co. v. Southern & Atlantic Telegraph Co., 46 Ga. 43; Cf. Taylor v. Bay City St. Ry. Co., 80 Mich. 77. 2 Dusenbury v. Mutual Telegraph Co., 11 Abb. (X. C.) 440. • 8 Eaton V. Boston, Concord & Montreal R. R. Co., 51 N. H. 504. EMINENT DOMAIN. 77 he may claim compensation.^ As the different electric com- panies stand on a different footing in this respect, it will be necessary to examine them separately. § 105. Horse Railways not an Additional Burden on the Highway. — The electric street railway is, in fact, a develop- ment of the horse railway. The courts have almost uni- versally held that a horse railway is not an additional burden upon a highway, for it promotes public travel which is the main purpose of the highways, and is not a mode of travel which excludes the general public from the use of the street for similar purposes, even though the vehicles of the railway are restrained in their course of travel by fixed rails, and these rails permanently occupy a small portion of the space of the public road. Consequently the construction of a street railroad to be operated by horses upon and along a highway does not create an injury for which damages can be recovered by the abutting landowner, even when he owns the fee of the land under the highway, and does not raise the question of eminent domain. ^ In one of the ]\Iassachusetts cases cited the court says, "The franchise granted to a street railway corporation is not the grant of a right to appropriate without compensation an additional easement in the soil of the street. Nor can such use of the streets under proper restrictions be considered as an imposition of an additional servitude upon the landowner. The peculiar privilege given is the right, not to acquire land 1 Dusenbury v. Mutual Telegraph Co., 11 Abb. N. C. 4iO; Stowers i\ Postal Telegraph Cable Co., 68 Miss. .559 ; Chesapeake & Potomac Tele- phone Co. V. Mackenzie, 7i Md. 3G; Board of Trade Telegraph Co. v. Barnett, 107 111. 507; Broome i\ New York & >«ew Jersey Telephone Co. , 42 N. J. Eq. Ul. See aho post, §§ 202-211. 2 Briggs I'. Lewiston & Auburn II. Ry. Co., 79:Me. 363; Koch v. North Avenue lly. Co., 75 Md. 222 ; Hiss v. Baltimore & Hampden Pa.ss. Ry. Co., 52 Md. 242; Atty.-Gen. v. :Metropolitan R. R. Co , 125 Mass. 515; Onset Street Ry. Co. v. County Commissioners, 154 Mass. 400; Jersey City & Bergen R. R. Co. r. Jersey City & Hoboken Horse R. R. Co., 20 N. J. Eq. 61, 06; Eichels v. Evansville St. Ry. Co., 78 Ind. 261. 78 THE LAW OF ELECTRICITY. or an easement in land, but only the right, so long as per- mitted by certain municipal authorities, to lay tracks in streets already appropriated to the uses of public travel, for the purpose of facilitating such travel ; to modify the public use, and change, to some extent, the law of the road. Such a privilege, however wide the street in which it is exercised, must always create some obstruction to other travel, and be, to some extent, exclusive, and this is true of all other kinds of public travel. The location of a highway creates a servi- tude which includes all forms of travel not prohibited by law, with the right in the legislature to give to municipal or other corporations, or to private individuals, the power rea- sonably to modify the use of the same for travel as public convenience and necessity in the application of modern improvements may from time to time require."^ § lOG. New York Decisions, Street Rail-way Additional Servitude. — In New York, however, the decisions are that even a horse railroad, and a fortiori an electric railway, is an additional easement upon the highway not contemplated among the uses for which it was originally dedicated, and for which, therefore, the consent of the owners of the soil beneath the highway is necessary,^ although the courts there hold that if the fee of the land is in the public, a horse rail- road on the surface is not a taking of any property from the owner of abutting lands for which he can recover compensation.^ § 107. Electric Railway no Additional Servitude. — Follow- ing the line of the greater number of decisions as to horse street railways the courts hold that the construction and operation of an electric railway over a highway does not put 1 Atty.-Gen. v. Metropolitan R.R. Co., 125 Mass. 515. 2 Craig V. Rochester City & Brighton Railroad Co., 39 N. Y. 404; McCruden v. Rochester Ry. Co., 25 N. Y. Supp. 114; s. c 28 N. Y. Supp. 1135; Cf. Curvin v. Rochester Ry. Co., 78 Hun, 535. 3 Kellinger v. Forty-second Street, etc. R. R. Co., 50 N. Y. 206; but iQQpost, § 109. EMINENT DOMAIN. 79 an additional servitude upon the highway for wliicli the owners of the land underneath or abutting on the way may claim additional compensation. ^ An important case on this point was decided by the Supreme Court of Pennsylvania.^ In this case a bill in equity was brought by the owners of the land abutting on the street and owning the soil under the street against a street railway company which was intending to put in an electric equipment. The street in question had been recently paved with asphalt, and one of the grounds relied upon by the complainants was that, hav- ing paid for the pavement of the street, they obtained a vested interest in the pavement itself, and consequently any interference with it by the street railway company was a trespass. This ground was additional to their rights as owners of the fee underneath the street, and of the land adjoining, and also as members of the general public entitled to the free and unrestricted use of the street. The Supreme Court simply dismissed the bill without giving any opinion, but the judge in the court below entered into a discussion of the question which shows clearly the rights of the various parties in the street. The Court says : — " There can be no doubt that under a proper charter the city had a right to allow the streets to be used for a street 1 Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419 ; Taggart i--. Newport St. Ry. Co., 16 R. I. 668; Ilalsey v. Rapid Transit St. Ry. Co., 47 X. J. Eq. 3S0; Powell v. Marion & I. S. Ry. Co., 92 Ga. 209; Detroit City Ry. V. Mills, 85 Mich. 634, 6.51; Louisville Bagging Co. v. Central Pass. Ry. Co., 23 S. W. Rep. 592, Louisville, Ky. ; People v. Fort Wayne & E. Ry. Co., 92 Mich. 522 ; Koch v. North Avenue Ry. Co., 75 Md. 222 ; Green v. City & Suburban Ry. Co., 28 Atl. Rep. 626; Dean v. Ann Arbor St. Ry. Co., 93 Mich. 330; Niemann v. Detroit Sub. St. Ry. Co., 61 N. W. Rep. 519 (Mich.) ; Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 874; Mt. Adams & Eden Park Liclined Ry. Co. v. Winslow, 3 Oh. Cir. Ct. Rep. 425. Cf. Rafferty v. Central Traction Co., 147 Pa. St. 579; Briggs r. Lewiston & Auburn H. Ry. Co., 79 Me. 363; Williams v. City Electric St. Ry. Co., 41 Fed. Rep. 556; Cumberland Telegraph & Tele- phone Co. V. United El. Ry. Co., 29 S. W. Rep. 104. But see;;o5^ § 109. 2 Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419. 80 THE LAW OF ELECTRICITY. railway with horses as the motive power. So far as the street use proper is concerned, there is no substantial differ- ence between the tracks of such a street railway and one operated by electricity. We may consider, then, that in the occupation of the street with tracks, intermediate paving, and the appliances in ordinary use for a railway operated by horses, there is nothing of which the plaintiffs can legally complain. Whatever dust, noise, and annoyance is incident, they must submit to. " But there is a material and substantial difference between such a road and the one contemplated by the defendants as regards its relations to the plaintiffs' property. The pro- posed road not only occupies the middle portion of the street or cart way, but will, as a necessary part of its machinery, have iron posts more than eighteen feet high, permanently fixed three or four feet in the ground along or near the curb of the pavement or sidewalk, upon which will also be placed permanent lines of wire crossing the street, and upon which will also be placed a permanent line over each track running longitudinally with the street. Do these, singly or together, amount to such a taking of the plaintiffs' property as is pro- hibited by the Constitution without compensation ? The placing of the wires over the street does not appear to be a taking of the plaintiffs' property. The streets are dedicated to the public use, and I cannot see how a wire run through the air above the streets can be said to be a taking, injury or a destroying of the plaintiffs' property. But another ques- tion arises in reference to the poles placed in the ground for the support of the wires by means of which the cars are run. It has generally been understood in this State that the abut- ting owner has fee to the middle of the adjoining street, and that the public has only a right of passage along it, but this must not be taken in its literal sense, especially in towns and cities. What might be considered an invasion of private rights so far as the use of the highway is concerned in the EMINENT DOMAIN. 81 country, might not be so in a city. Thus a city, by virtue of its general authority, may build sewers in the streets, and the adjoining i)roprietor is not entitled to have damages assessed as fur a new use or servitude. In such case the street is not only used without compensation to the adjoining owner, but he is compelled to pay for the use of the sewer. ... So the right to lay down gas pipes in the streets given by the legislature to municipal authorities without allowing com- pensation, has been recognized by the courts. ... So with water-pipes, awning-posts, fire-plugs, and lamp-posts. These all impinge more or less upon the absolute right of the owner of the soil, and are not necessary to accommodate public travel or even consistent with public right to an unobstructed passage-way and it may now be taken as settled that the owners' rights to abutting property are subject to the perma- nent right of the public, and the rights of the public are not limited to a mere highway, but extend to all beneficial, legi- timate street uses, such as the public may, from time to time, require. . . . Recognizing the right of the legislature and city authorities to authorize the building of railways upon the streets of a city without compensation to property owners because it is a means of public transportation and acommo- dation, the necessary and proper apparatus for moving them must be allowed to follow as an incident, unless there is something illegal in its construction or use." § 108, Electric Railway no Additional Servitude {continued), Rhode Island. — This question also came before the Supreme Court of Rhode Island in the case of Taggart v. Tlie Newport Street Railway Company. ^ That was an action by the abutters on certain streets in the city of Newport in that State, aloni:- and over which the tracks or wires of the defendant company's street railway had been laid. The object of the action was to have the company enjoined from erecting or maintaining its poles and wires for the overhead 1 16 R. I. G6S. 6 82 THE LAW OF ELECTRICITY. trolley system in the streets in front of their property. Poles were erected to stretch the wires over said tracks for the conduct of electricity, which was to be used as the motive power for the passenger-cars traversing said tracks. The poles were placed along the margins of the sidewalks of said streets about one hundred and twenty feet apart, and were placed there by permission of the council of the city of Newport, given by an ordinance. The case was submitted on bill and answer, the facts being admitted. The third ground in support of the bill was that the erec- tion of the poles on the sidewalks to hold up the wires in connection with the operation of the electric plant, was an invasion of the property rights of said abutters, for which compensation should be made. The court said : — "The poles are certainly in a portion of the streets not occupied by the tracks, but they do not encumber that portion in the meaning of the word as it is used. The poles are very slightly in the way of travel, being placed as hitch- ing-posts, lamp-posts, electric light poles, telegraph and telephone poles are placed, near the front margins of the sidewalks. . . . We have already decided that the council has the power by section 5 of the charter of the company to authorize the use of electricity, so that the question is only as to the manner of usins;, and as to whether the council has the power to authorize the use in said manner. "It seems to us that the provision [in the company's charter] that the cars on the road shall be operated by steam, horse, or other power, as the council of said city or town may from time to time direct, is broad enough to empower said council not only to authorize the use of electricity as a motor, but also to authorize its use by means of any system of application which it approves as suitable. Our conclusion is that the power conferred by section 5 [of the charter] is not qualified by the concluding words of section 7, and that the poles complained of, having been erected under section 5 EMINENT DOMAIN. 83 as part of the apparatus for su[){)lyiiig the railway with its motive power, are to be regarded as not encumbering the streets, but as ministering to their uses and increasing the facilities for travel which they afford to the public." The fourth ground upon which the plaintiff in that case relied, was that the act of incorporation which authorized the use of electricity for the operation of said street rail- ways, and the erection of poles as auxiliary thereto, was unconstitutional and void, because it authorized the imposi- tion of an additional servitude upon the streets without providing for any additional compensation to the owners of the fee of the said streets. As to this claim the court said : — "We think it settled by the greater weight of authority that a railroad constructed in a street, and operated by steam in the usual manner, imposes a new servitude and entitles the owmer of the fee to additional compensation ; but a street railway, operated by horse power, as such street railways are ordinarily operated, docs not impose any new servitude, and does not entitle the owner of the fee to any additional compensation. "The distinction is often stated as a distinction between steam and horse railroads; but the distinction properly rests not on any difference in motive power but in the different effects produced by them respectively on the highways or streets which they occupy. A steam railroad imposes a new servitude, not because it is operated by steam, but because it is so operated as to be incompatible Avith the use of the street; in other words, so as practically to exclude the usual modes of its use. ^ A steam railroad on a street so operated as to be consistent w^ith the use of the street, in the usual modes of its use, has been held not to impose a new servi- tude. ^ It is not the motor, but the kind of occupation, ^ Pierce on Railroads, 234. 2 Fulton V. Short Route Railway Transfer Co., 85 Ky. 640. 84 THE LAW OF ELECTRICITY. whether practically exclusive or not, which is the criterion. * An ordinary street railway, instead of adding a new servi- tude to a street, operates in furtherance of its original uses, and instead of being an embarrassment, relieves the pres- sure of local business and local travel. . . . We see no reason to suppose that "this form of danger, that is, the supposed alarm to horses by electric cars, is so gi-eat that on account of it the defendant railway should be ruled as an additional servitude." As to the fact that telegraph or telephone poles and wires erected on streets or highways constitute an additional ser- vitude, entitling the owners of the fee to additional compen- sation, the court says: "But, assuming that telegraph and telephone poles and wires do create a new servitude, we do not think it follows that the poles and wires erected and used for the operation of said electric street railway create a new servitude. Telegraph and telephone .poles and wires are not used to facilitate the use of the streets where they are erected for travel or transportation, or very indirectly so; whereas the poles and wires of this electric railway street-car company are directly ancillary to the uses of the street, as such, in that they communicate the power by which the street-cars are propelled. It has been held, for reasons which were considered irrefragable, that a telegraph erected by a railroad company within its location for the purpose of its railroad, to increase the speed and efficiency thereof, does not constitute an additional servitude, but is only a legitimate development of the casement originally acquired." ^ § 109. Electric Railway no Additional Servitude {continued). — The owners of land al)utting on a highway, whether they be owners of the fee of the highway or not, have certain property rights incident to the use and enjoyment of their 1 Briggs V. Lewiston & Auburn Horse Railroad Co., 79 Me. 363. 2 Western Union Telegraph Co. v. Rich, 19 Kan. 517. EMINENT DOMAIN. 85 land as such. These rights are the right of access to the property, of light and air in front of it, and other incidental rigiits of use. It has been claimed in some cases that the electric railway poles and wires interfere with the enjoy- ment of these rights, and therefore constitute a taking uf the property of the landowners pro tanto. Unquestionably, if an electric railway pole were so placed as to destroy or injure access to the land from the street, the owner of such land would be entitled to have the pole moved so as to permit him to have access to his land. ^ Such a case is hardly sujiposable, as the poles are generally put on the outer edge of the sidewalk, but might occur if the pole were set directly in front of and upon a driveway which the land- owner used for the passage of carriages and teams into his land. This point was raised and discussed in a case in Kentucky, but the evidence in that case showed that the use which the plaintiff corporation made of the sidewalk for teams to drive upon for the purpose of getting freight from its premises was illegal. In the same case the plaintiff cor- poration relied somewhat ujwn the fact that the operation of the railway caused a buzzing noise in its tclc})honc, and thus interfered with the use of its property. The facts showed, however, that the telephone was not its property, and that the buzzing noise existed before the line of railroad in question was built; therefore would not be affected by the discontinuance of this particular line.^ The construction of an electric street railway, may in other ways inflict such injury upon the owner of abutting land as to his right of access thereto that he may be entitled to com- pensation even though such construction does not constitute an additional servitude upon the highway. Thus where an electric railway was authorized to construct its tracks upon 1 Detroit City Ry. v. Mills. 85 Mich. 034, G55; see also infra, § 114. 2 Louisville Bagging iNIfg. Co. v. Central Pass. Ky. Co., 23 S. W. Rep. 592. See also post, §§ 202-211. 86 THE LAW OP ELECTRICITY. a street, and in order to do so dug down a distance of twenty- seven feet in the street in front of the plaintiff's premises in order to lay the tracks upon the official grade of the street, and this excavation extended laterally to within ten feet of the plaintiff's land, it was held that his right of access to his land was substantially destroyed, and he might recover damages therefor. ^ In several recent Pennsylvania cases the Supreme Court of that State has drawn a new distinction on this subject, holding that although an electric street railway is not an additional servitude in a city street, where the municipal authorities have full possession of the entire street for pur- poses of public travel, yet in country roads, where the public has merely a right of passage, an electric railway is an additional servitude for which the owners of the land underneath the highway may obtain damages, or, in default thereof, may enjoin the construction of the railway. ^ The court, in these cases, has dwelt with some emphasis upon the distinction between an electric railway wholly within the limits of one municipality and one which extends from town to town, and is intended for long distance transportation. A careful definition of what sort of electric railway is not an additional burden on the street was given in a New Jersey case as follows: "A street railway constructed on the highway under authority of law, with a roadbed which will admit of free use of the highway by all other lawful means, operated by cars patterned after the size and style of cars ordinarily in use by horse railways, the motive power of which is electricity supplied by overhead wires, supported by poles placed in the sidewalks immediately inside the 1 Eachus V. Los Angeles Consolidated Electric Railway Co., 37 Pac. Rep. 751, 2 Pennsylvania Railroad Co. v. Montr^omery County Pass. Ry. Co., 31 Atl. Rep. 468; Thomas v. Intercounty St. Ry. Co., 31 Atl. Rep. 476; Rahn Township v. Tamaqua & L. St. Ry. Co., 31 Atl. Rep. 472. EMINENT DOMAIN. &7 curb, is no additional burden upon the use of the street. " ^ In this same case the court raised the question of whether an electric road may not, if differently constructed and operated, become an additional servitude ; for instance, if it has large cars, such as are used Ijy steam railroads, and hi"-h rails projecting above the surface of the street, or if it should run trains of cars, or should run through cars for lono- distances using the highways merely as a means of getting from one place to another; and also raised the question of whether special damages may not be caused to abutting owners by setting the poles in such way as to interfere with improve- ments of the owner under the sidewalk of the street, or otherwise injuring his rights of access, light and air, and reasonable approach to his house for fire apparatus in case of fire. 2 § 110. Telegraph and Telephone Poles are an Additional Ser- vitude. — It is generally but not uniformly held by the courts of the different States that the construction, maintenance, and operation of a telegraph or telephone line along and over a highway creates an additional servitude for which the owner of the land underneath the highway may recover addi- tional compensation, and that the construction under a grant by the municipal authorities of the right to erect poles and string w'ircs constitutes a taking of the property of the land- owner for this })urpose, and therefore an exercise of the right of eminent domain. ^ This rule results from the nature of the use which is made of the poles and wires, viz., the 1 West Jersey Railroad Co. v. Camden, G. & W, Railway Co., 29 Atl. Rep. 423. * lb.; on this latter point compare post, § 114. ' Eels v. American Telephone & Telegraph Co., 143 N. Y. 133; Dusen- bury V. :Mutual Telegraph Co., 11 Abbott (N. C), 440; Ulashfield v. Em- pire State Telegraph & Telephone Co., 18 N. Y. Supp. 250; Stowers i-. Postal Telegraph Co., 68 Miss. 559; Chesapeake & Potomac Telephone Co. r. Mackenzie, 74 Md. 36; Smith v. Central, etc. Telegraph Co., 2 Ohio C. C. 259; Board of Trade Telegraph Co. i;. Barnett, 107 111. 507; 88 THE LAW OF ELECTRICITY. transmission of intelligence. The courts generally hold that the highways are dedicated to the public by the landowner, simply and solely for the purposes of public travel, and as has been seen, any method of public travel which is not exclusive in its nature may be carried on over the highways without increasing the burden of the highway upon the sub- jacent land beyond the uses which were originally contem- plated when the right of travel was so given. The fact that a mode of travel is new, and was unknown at the time of the dedication of the highway, does not prevent it from coming under the uses contemplated in the original dedication. The use of the highways, however, for the transmission of intel- ligence is a use wholly different from public traveh Inci- dentally, no doubt, it effects somewhat similar objects, as was noted in one case where the court says that the effect of the telephone poles and wires in the street is actually to diminish the use of the streets for public travel, for the fact of a message being transmitted over the wires prevents the necessity of the employment of a messenger for the same purpose. The nature of the use, however, is essentially different, and the courts have generally recognized this difference. § 111. Telegraph an Additional Servitude. — Thus in an early case in New York it was held that the setting of poles and the stringing of wires for a telegraph line constituted an additional servitude which must be paid for to the owner of the soil beneath before the highway could be so used.^ It is noticeable in this case that the statute giving the right to set poles also provided for compensation to the owners of the Pacific Postal Telegraph Cable Co. v. Irvine, 49 Fed. Rep. 113; Atlantic & Pacific Telegraph Co. v. Chicago, Rock Island & Pacific Railway Co., G Biss. 158; Western Union Telegraph Co. v. Williams, 86 Va. 690 ; P>roome v. New York & New Jersey Telephone Co., 42 N. J. Eq. 141; Willis V. Erie Telegraph & Telephone Co., 37 Winn. 347 : Prentiss v. Cleveland Telegraph Co., 32 Weekly L. Bull. 13. 1 Dusenbury v. Mutual Telegraph Co., 11 Abbott (N. C), 440. EMINENT DOMA'IN. 89 fee for such setting, as is generally the case in telegraph statutes, and the decision of the court was, in reality, only that such compensation must be made before the poles can be set, and that the landowner shall not be obliged to allow the setting and wait to recover his compensation by suit in court, but this point evidently includes the other. §112. Telephone an Additional Servitude. — A similar decision was reached in the same State to the effect that the construction of a telephone line by the erection of poles and stringing of wires within the limits of a country highway, is an additional burden on the fee not contemplated in the original taking of the land for highway purposes, and that the right so to construct such line must be by grant or condemnation proceedings with compensation to the landowner. ^ § 113. other Cases to the Same Point. — The same decision was made in Illinois,^ in a case in which it was held that the telegrajjh was a new use of the street not contemplated in the original taking or dedication, and that there should be compensation made to the landowner for this use. The Supreme Court of Virginia has decided in the same way,^ holding that the use of the road for telegraph poles is a new use for which the landowner can claim additional compensation. In this case a dissenting opinion was filed. § 114. Right of Abutting Lando'wner to Access to Land. — Even if the abutting landowner docs not own flic fee under- neath the street or highway, he has, as was stated in regard to the poles of electric railways,* certain rights growing out of his ownership of the land which may be shortly stated to 1 Blashfield ;-. Empire State Telegrapli & Telephone Co., 18 N. Y. Snpp. 250. Compare Metropolitan Telephone & Telegrapli Co. v. Colwell Lead Co., 50 X. Y. Super. 488; Tiffany v. United States Illuminating Co., 51 N. Y. Super. 280. 2 Board of Trade Telegraph Co. r. Barnett, 107 III. 507. 8 Western Union Telegraph Co. v. Williams, 86 Va. 699. < Supra, § 109. 90 THE LAW OF ELECTRICITY. consist of rights of ingress and egress to and from his premises, over the highway, and access of light and air to his premises. The setting of a telephone or telegraph pole and stringing the wires over the sidewalk or on the highway in front of his premises, therefore, may interfere in some degree with the free and full use by him of his premises. Whether this interference is sufficient to give him the right to compensation depends upon the position of the pole, and other circumstances. If the pole does not substantially interfere with any of his rights of approach to his premises, it is difficult to see how he can recover any compensation therefor ; but if the pole does interfere with such approach, as, for instance, if it should be set in a driveway leading to his house or directly in front of his carriage-gate in his fence, he may claim compensation therefor ; or, as one court expresses it, " If the poles unreasonably abridge the right of adjacent lot-owners to use the street as a means of ingress or egress or otherwise, they can recover compensation there- for. "^ And this has been said to be the rule even if no present injury is done, providing there is an obstruction of access of light and air or ingress or egress which would affect a future building placed on the land ; ^ but it does not necessarily follow that the erection of the poles will be enjoined. The party may be left to his remedy at law.^ § 115. Wires alone overhanging Street not an Injury to Landowner. — The question whether the mere stringing of a wire over a street, the fee of which is in the abutting land- owner, is a damage to him, even though setting a pole in 1 Chesapeake & Potomac Telephone Co. v. Mackenzie, 74 Md. 48; Stowers V. Postal Tele.srraph Cable Co., 68 Miss. 5.59; Clausen Brewing Co. V. Baltimore & Ohio Telej^raph Co., 2 Am. El. Cas. 210; Niemann V. Detroit Suburban St. Ry. Co., 61 N. W. Rep. 519 (Mich). See also j)oxt, §§ 202-211. ' Clausen Brewing Co. v. Baltimore & Ohio Telegraph Co., supra. 8 Hewett V. Western Union Telegraph Co., 4 Mackey, 424. EMINENT DOMAIN. 91 the street would be unquestionably a damage, was raised in a case in New Jersey, and discussed but not settled. In this State the statute requires the consent of the abutting land- owner to the setting of telegraph poles in the street. The plaintiff in this case had refused his consent, and as his lot had a comparatively narrow frontage on the street, the tele- graph company intended to set its poles on the sidewalk of the street in front of the adjoining land on each side, and to string the wire across between these poles without setting any pole in the street in front of the plaintiff's land. Plain- tiff brought a bill in equity to enjoin this construction, and the court discusses the question of whether in such circum- stances the existence of the wire over that portion of the street which ran over the plaintiff''s land was such an injury to him or taking of his property as would authorize an injunction, and the court held that the injury was very slight, and that it was doubtful whether there was any at all, and refused to grant the injunction.^ § IIG. Telegraph and Telephone Poles not an Additional Ser- vitude in Some States. — In somc States, Contrary to the gen- eral current of authority, it has been held that the setting of telegraph poles in a highway does not constitute an addi- tional easement on the highway, the court basing this opinion upon the inclusion of the use of the highway for the trans- mission of intelligence among the uses of the original dedi- cation.^ Thus, in a case where the owners of the land abutting on the highway, owning the fee under the high- way, brought suit to enjoin the setting of telegraph poles in front of their land, on the ground that it was an additional servitude for which they were entitled to compensation before the poles could be set, the court held that the dis- covery of the telegraph developed a new and valuable mode of communicating intelligence; that its use is certainly 1 Roake v. American Telegraph & Telephone Co., 41 N. J. Eq. 35. ^ Pierce v. Drew, 136 Mass. 75. 92 THE LAW OF ELECTRICITY. similar to, if not identical with, that public use of trans- mitting information for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach; that it is a newly discovered method of exercising the old public easement, and all appro- priate methods must be deemed to have been paid for when the road was laid out, and that the use of the highway for the telegraph did not constitute a new easement. A strong dissenting opinion was filed in this case to the effect that the setting of such poles did constitute an additional servi- tude. The majority of the court was much influenced by the fact that the setting of other poles had been acquiesced in for a long time by adjacent landowners throughout the State, without claim for compensation, and that a decision giving a right to additional compensation would impose an excessive liability upon the telegraph companies. It is also to be noted that in this State the statute authorizing the setting of such poles gave no right of compensation to the landowner for such setting, and therefore would have been unconstitutional if the court had held the setting to constitute an additional servitude. The courts of Missouri, Montana, Michigan, and Vermont follow the same line.^ In a case in Missouri the action was a suit by a landowner for an injunction against a telegraph company from setting poles in front of his land on the sidewalk. The sidewalk was about six feet wide, the street was a narrow one, and the poles were from twenty to twenty-four inches in diameter. Being set on the outside edge of the sidewalk they took away about two feet from the available travelling space. The court examined the statute of Missouri, which is, in many 1 Julia Building Ass'n v. Bell Telephone Co., 88 Mo. 258; Gay v. Mutual Union Telegraph Co., 12 Mo. App. 485; Hershfiekl v. Kocky Mountain Bell Telephone Co., 12 ]Mont. 102; and to the same effect Peo- ple V. Eaton, 100 Mich. 208 ; Western Union Telegrai)h Co. v. Bullard, 65 Vt. 634; Rugg v. Commercial Union Telegraph Co., 66 Vt. 209; see also post, § 202; Cater v. N. W. Teleph. Exch. Co. (Miuu.), 63 N. W. Rep. 111. EMINENT DOMAIN. 93 respects, like the United States statute, and held that it gave the telegraph company the right to set poles, provided they did not unnecessarily incommode the public in travelling, and that under the circumstances there was not such obstruction to travel as would render the setting of the poles unlawful.^ In a later case, Julia Building Association v. Bell Tele- phone Company,- the same suljject came before the Missouri courts on a suit for an injunction against a telephone com- pany from setting its poles on the sidewalk. In this case the plaintiff's cellar extended under the sidewalk through- out its breadth. The side of the cellar was composed of a thin brick wall, and between that and the street was a thick stone wall at a distance of a few inches, this stone wall being used to restrain the earth of the street, which was moist and loose, from pressing against the brick wall, and to keep water out of the cellar. The defendant company was setting its poles down through the edge of the sidewalk and into the stone wall in such a way as to materially weaken the stone wall and render it unfit for the purposes for which it was built. The court, examining the facts, held in the first place that Gay's Case settled the law on this point as to the regulating of setting the poles in the sidewalk, so far as the general damages to the approach of the plaintiff's premises were concerned, and it did not appear that the plaintiff was especially incommoded by having the posts set in front of the doorway of his building, or in such other manner as to actually render access to his building difficult, and therefore did not suffer any special damage. As to the question of the damage to the wall, the court held that as the plaintiff derived his title from the original owners of the land, who had dedicated a part of it to public uses as a street, he took his land subject to such rights of the public, and that as the setting of telephone poles was a legal use of the 1 Gay I'. Mutual Union Telegraph Co., 12 Mo. App. 4S5. 2 13 Mo. App. 177. 94 THE LAW OP ELECTRICITY. streets, bis wall must be beld to be subject to sucb use, and if it was injured by the setting of the poles, he must himself remedy the injury, although possibly an action for damages might be given him against the telephone company. § 117. Difference between City Streets and Country Roads. — In recent eases there has been shown a tendency in one or two instances to draw a distinction between country roads (or rural highways, as they are called) and city streets, as to their use by electric poles. As has been already seen, the greater volume of authority is to the effect that planting telephone or telegraph posts upon a public highway in the country is an appropriation of private property, and unlawful unless acquired by condemnation or consent. The numerous necessities of city life require greater and more numerous uses of the streets by the public than in the country. The owner of the land underneath a country highway has all rights to the earth, the timber and grass growing thereon, and all the minerals, quarries, and springs beneath the sur- face; the public has only the right to travel over it. In populous city streets, however, the public convenience requires more than the mere right of passage, and the streets may be graded, the surface paved, trees cut down, and cul- verts, drains, and sewers made upon and under the surface. Pipes may also be laid under the surface for the various agencies of city life, such as water, gas, electricity, steam, and other things capable of that mode of distribution. These differences were adverted to in a recent case in Mary- land,^ but the court did not go so far as to draw any result therefrom, and held that in the case under consideration the telephone pole was an additional burden upon the highway. The case is interesting, however, as indicating a distinction drawn by the courts which may result in holding that in cities, the setting of telegraph and telephone poles does not 1 Chesapeake & Potomac Telephone Co. v. iMackenzie, 74 Md. 48. See also to the same effect, Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419. EMINENT DOMAIN. 95 constitute an additional use of the streets for which the land- owner can obtain additional compensation, or in default thereof, may enjoin the construction. In a recent case, the question whether telegraph pules arc an additional servitude on a rural highway was discussed in New York State, and the court held that they were, being wholly distinct from the purposes of public travel for which the way was originally dedicated. The court in this case considers the question of the difference between rural highways and city streets in this matter, saying that the latter may require more numerous public uses than the former, and that the adjoining pro})rietors may be taken to have consented to these additional uses when the street was laid out, but the court does not decide this question, and simply holds that on rural highways the telegraph poles con- stitute without the landowner's consent an illegal structure for which the owner of the fee of the highway may have ejectment. ^ § 118. Underground "Wires. — The principles which have been' stated in regard to the poles and wires of telegraph, telephone, electric light, and electric railway com])anies, on the question w^hether they are additional servitudes on the highway, would seem to be applicable in the same way to the wires of such companies, when they are run under ground. It is not known that the question has been directly raised in any case, but the statutes which authorize or com- pel electric companies to put their wires underground have been held to be constitutional in the cases in which they have been discussed. ^ § 119. Condemnation of Location over Railways ; Right depends on Statute. — So far the discussion has concerned only poles set in public highways. Whether an electric company can condemn a location for its poles and wires over 1 Eels V. American Telephone & Telegraph Co., 143 X- Y. 133. CI ante, § 109. 2 Seei;os^§§ 162-167. a 96 THE LAW OF ELECTRICITY. the right of way of a railroad company, depends upon whether the statutes of the State give the former company the right to condemn a right over the railway for this purpose. The statutes of many States, as has been seen, expressly give telegraph and in some cases telephone companies the right to do this. ^ This statutory authority must be given expressly, for such statutes, being in derogation of common-law rights, will not be extended by construction. Thus in a case in New York,2 where the statute authorized a telegraph com- pany to erect and construct from time to time the necessary fixtures for said line of telegraph upon, over, and under any of the public roads, streets, and highways, and upon, through, or over any other land, subject to the rights of the owners for full compensation for the use, the court held that stat- utes which give the right of eminent domain are not to be enlarged by construction, and that a right to condemn way over public roads did not include railroads outside of streets and highways; that, whatever it might signify, it was an inappropriate expression to designate a thing so long and commonly known by another name as a railroad, and that if the leo-islature had intended to authorize the use of railroads, they would have said so in plain language, and they would - have prescribed the mode of the joint use so as not to endanger the safety of the operation of the railroad, as they have been careful to do in analogous cases. A cognate decision as to the strict construction of such statutes was reached in a case in Virginia. ^ In this case Sections 1287 to 1290 of the Code of Virginia were considered, which pro- vide that every telegraph or telephone company incorporated by that or any other State or by the United States, may construct, maintain, and operate its lines along any of 1 See statutes, supra, § 62. 2 New York City & Northern R. R. Co. v. Central Union Telegraph Co., 21 Hun, 261. 'cf. post, § 153. 8 Postal Telegraph Cable Co. v. Norfolk & Western R. R. Co., 88 Va. 920. EMINENT DOMAIN. 97 the State or county roads or works, and over the waters of the State, and along and parallel to any of the railroads of the State, provided that the ordinary use of such roads, works, railroads, and waters be not thereby obstructed, and along and over the streets of any city or town with the con- sent of the council thereof, and which further provide for the condemnation of a right of way on making a just com- l)ensation therefor. In the case in question, the railroad company refused to allow the telegraph line over its right of way, on the ground that it had already contracted with another telegraph company for this use, and a second would obstruct the ordinary use of the road. The court considered the matter at some length, but finally decided the case upon the ground that the phrase "along and parallel to " the rail- road meant along by the side of and not "along and upon," as was shown by the variation in language between this phrase and the phrase giving a similar right as to public highways, where the word " along" is used only, and conse- quently that the statute in question did not give the telegraph company a right to condemn its way upon the railroad right of wav, but alonffside of it. § 120. Right to Condemn not defeated by Exclusive Contract of other Telegraph Company. — It has bccn already seen ^ that the federal franchise of telegraph companies, and the general rules of public policy forbid a railroad company to grant an exclusive right to any telegraph company of con- structing its lines over the railroad company's right of way. Accordingly, proceedings to condemn such a right cannot be defeated by any contract or agreement granting such exclu- sive right to any other telegraph company, whether this contract be set up by the telegraph company or the railroad company.2 But if the railroad company has gone into the 1 Supra, § 45. a Postal Telegraph Cable Co. v. Norfolk & Western R. R. Co., 8S Va. 920; supra, § 45, and cases there cited. 7 98 THE LAW OP ELECTRICITY. hands of a receiver appointed by the federal court, proceed- inirs to condemn in a State court cannot be instituted without the consent of the receiver.^ § 121. Right condemned must not interfere with Use of Rail- road. — It is a general principle of tlic law of Eminent Domain that property already applied to a public use cannot be condemned for another public use which will extinguish or defeat the prior use,^ and therefore if, as a matter of fact, the telegraph company would, if allowed to build its lines, interfere with the practical operation of the railroad, it can- not be allowed its right of way.^ This case is not likely to arise, as in most cases there is plenty of room on railroad rights of way fur any number of telegraph lines.'* § 122. Compensation to Railroad. — The telegraph company which thus condemns a right of way over a railroad com- pany's location is bound to make compensation to the rail- road company, as provided by the statutes.^ The value of the property which is taken when a telegraph line is placed over a railroad way is to be decided by whatever tribunal is appointed for this purpose under the statutes, on such evi- dence as is admitted upon similar questions of value. The most reliable evidence has been said to be the opinion of skilled persons who are familiar with values.*' The test of the value of this right of way is what it was worth to the railroad company for any use or for sale, and any damage in addition to the loss of the use and the loss of its salability.' § 123. Compensation to Owners of Adjoining Land. — Whether the construction and operation of a telegraph line ^ Western Union Telegraph Co. v. Atlantic, etc., Telegraph Co., 7 Biss. (U. S.) 307. 2 Mill's Em. Dom., § 47. Cf. Bait. & F. Turnp. R. v. Bait. etc. Ry. Co., 31 Atl. R. 854. 3 Postal Telegraph Cable Co. v. Norfolk & Western R. R. Co., 88 Va. 920. 4 Cf. post. § 127. fi Supra, §§ 69-82. fi Postal Telegraph Cable Co. v. Alabama & Vicksburg Ry. Co., 68 Miss. 314. ' Ibid. EMINENT DOMAIN. 99 upon and along the right of way of a steam railroad company (sui)posing that company to have only an easement in the land and not the fee) constitutes an additional servitude upon the land underneath for which the owners of the land may demand compensation, or which they may restrain by in- junction of a court of equity, depends upon the use which is made of the telegraph line or the [»urpose for which it is constructed. If the telegraph line is to be operated (and the same is true of telephone lines) bona fide in the management of the railroad only, the line constitutes no additional servitude, even though it may be constructed and operated by a telegraph or telephone company which owns the line but operates it for the railroad company.^ The first case on this point was a case in Kansas. ^ In this case the plaintiff company had a line of railroad, and began to build a line of telegraph on it. Defendant cut down two or three of its poles which were either on or near the right of way of the railway company. The railway company then secured an interim injunction against him, and this discus- sion arose on a motion to dismiss the injunction. The affi- davits of the defendant made it uncertain whether or not the plaintiff company had the right to build its telegraph line, i. e,, whether the line was to be operated as a commercial line or only to run the trains. The court held that, con- sidering the circumstances of the caee, the great danger and inconvenience to the plaintiff company if it did not get its line built, and the comparatively slight injury to the defend- ant by preventing him from cutting down the poles, the injunction should not be raised. § 124. Compensation to Abutting Landowners (continued). — A later case in the same State ^ following Dryden's case, 1 American Telephone & Telegraph Co. v. Pearce, 71 Md. 535 West em Union Telegraph Co. v. Rich, 19 Kan. 517. 2 St. Joseph & Denver City R. Co. v. Dryden, 11 Kan. 147 » Western Union Telegrapli Co. v. Rich, 19 Kan. 517 100 THE LAW OP ELECTRICITY. held that a railway company may use its right of way for a telegraph line for its own business, that is, to facilitate the running of its trains, and that it may do so in partnership with a tclcgra])h company if it so desires. The court says, "A telegraph line, if not indispensable to a railroad, tends so much to facilitate its business and to the speedy and safe running of its trains, that the railroad company has a right to build it, to use its right of way therefor, and to remove all obstructions thereon to its fullest and most uninterrupted and beneficial use. Although it may have but an easement in the land, and that easement limited to its use for railroad purposes, yet a telegraph is so convenient, if not indispen- sable, that it may cut down every tree and bush on the right of way, if necessary, for the most convenient and efficient use of a telegraph line built by it on and upon said right of way, and just as it may dig away a hill or (ill up a ravine for the sake of a water-tank or a station-house. By so doing it gives the adjacent landowner no claim for damages, since the use is contemplated in the original condemnation, and the damages resulting therefrom are part of the damages included in the amount thereof. In short, the railroad com- pany may use its right of way not merely for its tracks, but for any other buildings or erections which reasonably tend to facilitate its business of transporting freight and passen- gers, and by such use in no manner transcends the purpose and extent of the easement or exposes itself to any claim for additional damages to the original landowner, so that if the railroad company had built this line by itself independent of the defendant, and in doing so had only cut down trees upon its right of way, it is clear that the plaintiff would have no cause of action therefor. Does the fact that it took a partner in the construction and use of the telegraph expose it or such partner to any liability to the landowner for the full value of the trees cut down upon its right of way ? We think not. If the railroad company could build by itself EMINENT DOMAIN. 101 without liability, it did not assume liability by building with another. Whatever it could do and would have done fur its own use and benefit, and was so done, was, so far as the landowner is concerned, damnum absque injuria, no matter who bore the expenses, or perhaps more correctly, it was damages already paid for. We do not question that every additional burden cast upon the land outside of the purpose and scope of the original easement, no matter in whose behalf, gives the landowner new claims to compensa- tion, but such compensation is limited to the extent of the additional burden." This case and opinion were cited with approval in a recent case in Maryland.^ This was a number of suits by various landowners to enjoin the setting of tele- phone poles over the right of way of a railroad over their land without compensation, the plaintiffs alleging an additional servitude to be thereby cast upon their land. The court held that the railroad might undoubtedly, without additional payments to the landowners, run a line of telegraph or tele- phone over its right of way for the purpose of carrying on its railroad biisiness, and it might employ another company to build the line or do so jointly with it, and that in every case it is a question of fact whether the railroad company is acting bona fide for this purpose. If it is in fact engaging in a commercial business, the landowners are entitled to additional damages. The court also held that the Act of Congress relating to telegraph lines ^ docs not give such companies an actual right to build regardless of the land- owner's consent, but only that, if they gain the consent of the landowners, no State legislation shall forbid the con- struction of the line. The court then examined the facts in the case, and held that as the railroad company in question had carried on its railway business for a number of years with only one line of telegraph, and was, at the time of the ^ American Telephone & Telegraph Co. v. Pearce, 71 Md. 535. "- U. S. R. S., 5263. 102 THE LAW OP ELECTRICITY. suit, proposing to put up poles with crossarms ten feet wide, and capable of carrying fifty or sixty wires without any cor- responding enlargement of its railway business, it was unquestionably going into a telephone business commercially, and therefore the injunction should be granted. § 125. Compensation to Abutting Landowners. — Thesc cases settle the point that the landowner cannot claim additional compensation for or injunction against the building and operation of a telegraph or telephone line over the right of way of a railroad company if the telegraph or telephone line is wholly intended for and used by the railroad company in the management and operation of its railway, but if there is an additional use for commercial purposes, there is an addi- tional burden thrown upon the land for which the landowner may demand and receive compensation, or on failure thereof may enjoin the construction or operation.^ § 126. Electric Light Poles are an Additional Servitude. — The setting of electric light poles by town or city authorities for the sole purpose of lighting the public ways and places, is not a taking of private property for public use, since the use of the streets for this purpose is in the nature of an exercise of the police power by the city which is always valid without compensation to the landowner. ^ When the poles are set by an electric light corporation, however, for its own corporate purposes, i. e., for supplying light to individuals and firms commercially, as well as lighting public ways and places, it has been held that the poles constitute an additional ease- ment in a highway for which the owner of the fee may demand compensation.^ Few cases have been decided on 1 American Telephone & Telegraph Co. v. Pearce, 71 Md. 535; West- ern Union Telegraph Co. v. Rich, 19 Kan. 517 ; St. Joseph & Denver City R. Co. V. Dryden, 11 Kan. 147. 2 See post, Municipal Ownership, oh. VII. 3 Haverford Electric Light Co. v. Hart, 13 Pa. Co. Ct. Rep. 300 ; Tif- fany V. U. S. Illuminating Co., 51 N. Y. Super. Ct. 280. Cf. People v. Thompson, 32 Hun, 96. EMINENT DOMAIN. 103 this point. On principle it would seem as if electric light poles set for the purpose of lighting the highways, were fully as germane to the original purposes for which the highway was dedicated as electric railroads are, for the lighting of highways is almost a necessity to their use at all, and is certainly necessary for their convenient and safe use. Possi- bly the distinction which has been taken as to gas-posts and pipes may be applied to electric poles and lamps, i. e., that they constitute an additional servitude on country roads, but not on city streets, because the country roads are not gen- erally lighted, nor is it so necessary or desirable, while in the case of city streets the necessity for lighting is absolute.^ § 127. Coudemuatiou of one Street Railway by Another. — In Ohio a statutory power exists whereby one street railway may, by the right of Eminent Domain, gain a right to operate its cars upon and over the tracks of another railway company. This extends, however, only so far as to allow the two roads to operate cars over the track jointly, and •would not be extended so far as to deprive the earlier road of the right to operate its cars ; ^ for it is a principle govern- ing the law of Eminent Domain that if property already appropriated to a public use be condemned for a second use, the later condemnation must be so limited as not to interfere with the prior usc.*^ § 128. Failure to agree with Owner. — In many States the exercise of the right of Eminent Domain is conditional upon a prior attempt and failure to acquire the rights or property desired by agreement with the owner. ^ In such case an attempt to agree is an absolutely necessary prerequisite to the exercise of the right to take. This prerequisite may arise from a direct statement to that effect in the statute, or 1 Blooinfield Gas Co. v. Calkins, 62 N. Y. 386. Cf. Bloomfield Gas Co. V. Richardson, G3 Barb. 437. Compare ante, § 117. * Toledo Electric Street Railway Co. v. Toledo Consolidated Street Railway Co., 26 Wkly. Law Bui. 172. Cf. supra, § 121. 8 Cf. supra, § 121. ■• See statutes, supra, ch. IV. passim. 10-4 THE LAW OP ELECTRICITY. by the use of phrases which imply an unsuccessful attempt at purchase, as, for instance, if the right to take by Eminent Domain is granted "upon failure to agree " with the owner as to the value of the property to be taken, or if the company cannot agree, or similar words. In every such case, the power to buy is conferred by implication, and an attempt to buy is a prerequisite to the exercise of the right of emi- nent domain.^ A sufficient compliance with the condition is shown if the company has written letters making proposi- tions as to such purchase, and mailed them duly addressed to the owner of the land, and has had no answer within a reasonable time.^ § 129. Easement only acquired by Condemnation. — In Illi- nois, it is held that when a telegraph company is given a statutory power to condemn as a right of way for its tele- 1 Louisville, N. O. & T. Ry. Co. v. Postal Telegraph Cable Co., 68 Miss. 806. 2 Louisville, N. O. & T. Ry. Co. v. Postal Telegraph Cable Co., supra. In a case in Xew York an attempt was made to use the written consent of an abutting landowner to the construction of an electric street railway, as a grant from her of a right to lay the tracks over her land. The consent used was in the following form, and was but one of many obtained by the company: " I hereby grant to the Rochester Railway Company the right to construct, maintain, and operate a double track railroad upon Plymouth Avenue from the bridge over the abandoned Genessee Valley Canal to the south end of Plymouth Avenue, such railroad to consist of a single track on each side of tlie roadway, and to be operated by electricity as a motive power." This document was signed by a large number of abutting land- owners. As a matter of fact, Plymouth Avenue in front of the plaintiff's land was not wide enough to allow a double track, one on each side of the roadway, and it would be necessary either to lay the second track upon the roadway or upon the plaintiff's land. The company chose to interpret the above consent as a grant of a right to them to lay the second track over the plaintiffs land in case the street was not wide enough to carry both, one on each side of the roadway; but the plaintiff brought suit to enjoin this construction, and the court held that it was evident that the document in question was a mere form of consent and was not intended to grant any right over the plaintiff's land outside of the roadway, but, as it expressly stated, a double track "upon Plymouth Avenue." Curvin V. Rochester Railway Co., 78 Hun, 535. EMINENT DOMAIN. 105 graph a strip of land a designated number of feet wide, the telegraph company does not acquire by such condemnation the fee of the land, but merely the right to set its poles and string its wires thereover, and to enter upon the same for the purposes of repair and renewal. It has no obligation, therefore, to fence the land which it does not own.^ Gen- erally the company does not acquire any definite number of feet of land, but merely an easement to place its poles and string its wires. § 130. Proceedings must follow Statutes. — All proceedings under the law of Eminent Domain, instituted by an electric company for the purpose of obtaining the right to set its poles and string its wires by virtue of statutory authority, must conform strictly to the provisions of the statute authorizing and regulating the subject. Thus, for instance, if a statute authorizes telephone companies which have been incorporated under the laws of the State enacting the statute to proceed by petition to condemn a right of way, the petition must allege afiirmatively that the petitioning corporation was incorporated under the laws of the State in question, and if the statute requires the consent of the local authorities to the setting of the poles before the assessment of the damages to the landowner for such setting can be made, the petition for the assessment of such damages must allege the fact that the local authorities have so assented to the location of the poles in question.^ § 131. The Petition. — The petition should set forth a rea- sonably accurate and precise description of the location of the poles in question, at any rate sufficient to show what burden is imposed upon the land by the setting of the poles and the stringing of the wires.^ A mere reference in the petition to 1 Lockie v. Mutual Union Telefcraph Co., 103 111. 401. 2 State. Wiuter.r. New York & New Jersey Telephone Co.,. 51 N.J. L. S3. 8 Broome v. New York & New Jersey Telephone Co., 49 N. J. L. 624 ; State, Winter v. New York & New Jersey Telephone Co., 51 N. J. L. 83. 106 THE LAW OF ELECTRICITY. a map winch has dots on it indicating the location of the poles, has been held not suihcient. The petition or its accompanying schedule or map should show by scale the position of the poles on the highway, and also give a descrip- tion of their size and other characteristics, their height, and the number and size of the cross-arms, and the number of wires to be sustained, these particulars being necessary in order to arrive at an estimate of the additional servitude imposed upon the land.^ If the statute requires the consent of the municipal authorities to the location as a prerequi- site to the taking by eminent domain, such consent must be alleged and proved. Thus in a case in New York an electric railway company had, after duly incorporating, proceeded to secure the rights of way by condemnation, and had built its road. It then desired to make an extension partly over a road which was owned by a Turnpike Corporation, and partly on adjoining land of various landowners. It pro- cured the consent of the Turnpike Company to its occupa- tion of the turnpike with its tracks, but failed to secure the consent of some of the landowners ; nor had it obtained the consent of any town officials. It proceeded under the statutes to bring a petition in court for a condemnation of the right of way over the land of the objecting landowners. In answer to the objection that the consent of the local authorities had not been procured previous to beginning the proceedings for condemnation, the railway company attempted to set up that in this case, as the land was not in any village or city, there were no authorities whose duties and powers would give them the right to consent to the location in question. But the court held that when the highway over which the road pro- poses to go is not in any city or village, but is in a town, and runs over a turnpike owned by a Turni)ike Corporation, the consent of the Turnpike Company, even though it has ^ New York & New Jersey Telephone Co. v. State, Broome, 50 N. J. L. 432. EMINENT DOMAIN. 107 the iictual conirul and ownership of the highway, is not a sullicient comi)liance with the statute which requires a consent of the hjcal authorities. These words mean the oliicers of the city, town, or village whose duties and powers relate to the supervision, care, and maintenance of streets and highways, and in towns mean the Board of Highway Commissioners. Their consent is an essential prerequisite to any proceeding for the condemnation of the right of way.i ^ Rochester Electric Railway Co. , In re, 123 N. Y. 351. 108 THE LAW OF ELECTRICITY. CHAPTER VI. GRANT OP FRANCHISE BY MUNICIPAL AUTHORITIES. §132. 133. 134. 135. 136. 137. 138. 139. 140. 141 142. 143. 144. 145. 146. 147. 148. 149. 150. 151. 152. 153. 154. 155. 156. 157. 158. 159. Grant by Municipal Authorities. 160. Statute, Alabama. Statutes, Calif oruia. 161. Statutes, Colorado, Connecticut. Statutes, Florida, Illinois, In- 162. diaua. 163. Statutes, Iowa, Kansas, Ken- tucky. 164. Statutes, Louisiana, Maine, Mary- 165. land, Massachusetts, Michi- 166. gan. Statutes, Mississippi, Missouri, 167. Nebraska, New Hampshire. 168. Statutes, New Jersey, New York, 169. North Carolina, Ohio, Penn- sylvania. 1 70. Statutes, Khode Island, Texas, Vermont. 171. Statutes, Virginia, Washington, 172. West Virginia. Statutes, Electric Eailways. 173. Municipal Consent always neces- sary to the Use of Highways. 174. Whether Municipality has Power 175. to authorize such Use. Power of Municipality to grant 176. Franchi.se. Delegation of Powers. 177. Mode of granting Franchise; 178. Fraud, Duress. Stipulations in grant of Fran- 179. chise. Use of Poles by another Com- 180. pany. 181. Extraneous Stipulations. Can Municipal Authorities re- 182. fuse a Location of Poles. Interpretation of Municipal 183. Grants. Discretion of Local Authorities 184. conclusive, 185. Proceedings must follow Statutes. Poles on Private Land. 186. Sale of Franchise at Auction. Assignability of P^anchise. 187. Revocation of Right to set Pole.s. Grant of Location may be re- voked, when. Location of Poles, when re- vocable. Underground Wires. Permissive Statutes for Under- ground Wires. Mandatory Statutes. Same Subject {continued^. Constitutionality of Underground Statutes. Cases on Underground Statutes. Exclusive Franchises. Exclusive Grant for Telegraph by Act of Legislature. Exclusive Right of Way for Telegraph by Contract. Grant of Monopoly separable. Exclusive Right in Telegraph Company. Exclusive Grants by Municipal Authorities. Arkansas, Kansas, Louisiana. Missouri, Ohio, Tennessee, Texas, Virginia. Intent to grant Exclusive Privi- lege not Inferred. Exclusive Grant not implied. Exclusive Franchise for Street Railway sustained. Interpretation of Exclusive Rights. Exclusive Right by Statute. Right to use Electricity for Lighting. Right to use Electricity as Mo- tive Power, Street Railways. Right to set Poles and string Wires as incidental. Inferred Right to use Electricity. Inferred Right to use Electric Motive Power (continued). Grant of Right by Municipality only. Right to use any Motive Power- GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 109 § 132. Grant by Municipal Authorities. — III most States the statutes under which telegraph, telephone, and other electric companies acquire the right to set poles and string wires in, or otherwise occupy, public highways, either annex a condi- tion that the right shall be acquired only subject to the approval or by the consent of the municipal authorities, or delegate to such authorities the power to make the grant. This procedure is intended to secure to the municipalities such regulation of the manner of occupation of the highways as will insure the safety and convenience of the public and of the inhabitants of the municipality in using the highways. In the following sections are given the provisions of the State statutes on this subject, so far as they are expressly enacted in relation to telegraph or other electric companies by name, and it will be perceived that in by far the greater majority of the States, this condition is expressly affixed to the fran- chise or right of way of telegraph companies, and, as included in the same class, telephone companies, and in quite a number of States, the express statutory provisions cover all electrical wires in the public highways. Even where express statutory provisions on this point do not exist, the statutes relating to municipal corporations generally vest the regu- lation of electric lines in the highways in the municipal governments among their general police powers for the light- ing, care, and regulation of streets and public places.^ The statutes relating to such municipal control are very numerous, and as they are generally uniform in purport, it is considered unadvisable to incorporate them into this work, except in instances where electric companies are expressly mentioned, which are as follows : — §133. Statute, Alabama. — In this State strect railroads are given the right to use electric force as a motive power, and the right to condemn a right of way thirty feet wide on making compensation therefor; but incorporated cities 1 Dillon, Mun. Corp., § 691. 110 THE LAW OF ELECTRICITY, and towns may regulate the construction of street railways within their corporate limits, and the kind of motive power to be used by them. ^ § 134. Statutes, California. — In this State the statutes provide that any privilege of stringing telegraph or telephone wires or constructing or operating railroads in the public highway, may be granted by the governing or legislative bodies of the city, town, district, or county in which it is to be exercised only by public advertisement, and must be granted to the highest bidder after due publication.''' And further provision is made for electric railways obtaining a right of way through the highways, not exceeding fifty years in duration, from the trustees, council, or other governing body, under such restrictions and limitations, and upon such terms and payment of license tax, as such body may require.^ § 135. Statutes, Colorado, Connecticut. — In Colorado nO poles or wires can be erected in any streets or alleys of any city or incorporated town, without having first obtained the consent of the city or town.^ In Connecticut the selectmen of a town, the common council of a city, and the wardens and burgesses of a borough have full direction and control over the placing, erection, and maintenance of all kinds of electric wires, conductors, fixtures, and apparatus, including relocation and removal, subject to appeal to a judge of the Supreme Court of the county.^ Street railways are authorized to use electricity.^ § 136. statutes, Florida, Illinois, Indiana. — In Florida tele- graph and telephone companies must obtain from the city or town council of any incorporated city or town, permission to occupy the streets." In Illinois telegraph companies are 1 Laws 1889, No. 65. « gtats. 1893, ch. 204. 8 Stats. 1891. chs. 18, 19; Stats. 1893, ch. 175. ■* Ann. Stat. § 595. 6 Gen. Stats. §§ 3946, 3947, 3950, 1477. 6 Stats. Ib93, ch. 193. "> Rev. Stats. §§ 2252, 2256. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. Ill required to obtain the consent of the corporate authorities of any incorporated city, town, or village, to the erection of poles and other structures on the streets, alleys, and public highways thereof, and outside the corporate limits the con- sent of the county board. ^ In Indiana the common council of an incorporated city, and the trustees of an incorporated town may, by resolution or ordinance, grant the right to erect and maintain the poles and wires for electric lighting in streets, alleys, and public places.^ § 137. Statutes, Iowa, Kansas, Kentucky. — In lowa the statutes provide that in cities of the first class and of the second class, having over seven thousand inhabitants, and in cities especially chartered, the power to regulate electric wires and to provide the manner in which and the places where they shall be placed on the streets, is given to the board of public works, with the assistance of the city engineer, and subject to the ordinances of the city.^ Street railways are given the right to use electricity.^ In Kansas the mayor and council of cities of the first class have the power to grant the right of way for telegraph, electric light, and telephone lines on the highways, and change, modify, or regulate the same.^ And the council of any city or trustees of any incorporated town or village may specify the loca- tions and other details of telegraph poles and wires.^ In Kentucky all electric wires are to be placed subject to the consent of the proper legislative board of any city or town." § 138. Statutes, Louisiana, Maine, Maryland. Massachusetts, Michigan. — Electric wires for the transmission of intelli- gence may be constructed along the streets of any city with the consent of the council or trustees thereof.^ In Maine all electric wires upon highways and public roads of any 1 111. Ann. Stat. ch. 131, IT 4; ch. 21, IT 63, cl. 17. 2 Ann. Stats. § 1302. » Ann. Code, §§ 725, 896. * Acts 1S92, ch.22. ^ Gen. Stats. § 555. 6 lb. § 1387. ' Const. §§ 163, 199. 8 La. Acts 1880, No. 24. 112 THE LAW OF ELECTRICITY. city or town 'require a written permit signed by the mayor and aldermen, or selectmen, specifying the locations of the posts, the kind of posts and their height, and the location of the wires ; and this permit is only granted after public notice and a hearing.^ Similar provisions exist as to electric light companies in Maryland. ^ In Massachusetts telegraph lines and all other electric wires require a writing from the mayor and aldermen, or selectmen, specifying the locations of the posts and their kind, and the height and place of the wires. ^ In Michigan electric light companies are obliged to get permission to occupy streets.* § 139. Statutes^ Mississippi, Missouri, Nebraska, Ne'w Hamp- shire. — In Mississippi the board of supervisors of a county, and the authorities of any city, town, or village, have the power to regulate the construction of telegraph lines and electric light lines in the streets.^ In Missouri the consent of the city is required in case they desire to put their wires underground ; ^ and the mayor and aldermen or common council of any city, or the trustees of any town, may, by ordinance or otherwise, specify the locations of the posts and their kind, and the height and location of the wires, of tele- graph and telephone companies.''' In Nebraska street rail- ways are authorized to use electricity.^ In New Hampshire all electric wires above or beneath the highways require the license of the selectmen of towns locating the route and the size and location of the poles and the number and height of the wires.^ § 140. Statutes, New Jersey, New York, North Carolina, Ohio, Pennsylvania. — In New Jersey, telegraph and telephone companies require from the common council or other legis- 1 Acts 1885, ch. 378, § 2. « Pub. Gen. Laws, Art. 23, § 111. 8 Pub. Stats, ch. 109, § 3; Acts 1889, ch. 434; lb. ch. 398; Acts 1883, ch. 221 ; Acts 1887, ch. 38.3, § 4. 4 How. Ann. Stat. § 4191. « Ann. Code, §§ 8.55, 2933. 8 Rev. Stats. § 2721. ' Rev. Stats. § 2730. 8 Comp. Stat. ch. 72, Art. 7, § 12. ^ Pub. Stats, ch. 81, § 2. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 113 lative body of incorporated cities and towns, a designation of the streets in which the posts are to be erected, and the manner of placing them.^ And it is the duty of such body to give a writing giving such designation, which must be done by ordinance, and it is unlawful for any company to construct its lines without having first obtained such desig- nation, or outside of the streets designated.- But the legis- lative body must designate such streets as will form a practicable and suitable continuous line through the munici- pality, commencing and ending upon a public highway, and with due regard for facilities of communication, and in case of delay of fifty days in granting such a writing, application may be made therefor to the Circuit Court of the county. ^ Street railways are authorized to use electric motors,* In New York the consent of municipal authorities to setting electric light poles in highways is required.^ Street rail- ways are authorized to use electricity. ^ In North Carolina the consent of the authorities of any city, town, or village is necessary to the construction of electric light lines in the highways."" In Ohio the telegraph and electric light lines can only be built upon public highways within the limits of a city or village, in such manner as may be agreed upon with the municipal authorities, subject to appeal to the Probate Court. ^ In Pennsylvania the permission of the municipal authorities of any city, town, or borough is required for all electric light wires before they can be run over the streets, and this permission must be given by ordinance, and may impose conditions.^ § 141. Statutes, Rhode Island, Texas, Vermont. — 111 Rhode » Rev. Supp. p. 1022, § 1. « Acts 18S7, ch. 87. « Laws 1888, ch. 337. •• Rev. Sup. p. 369, § 30. 6 2 X. Y. Rev. Stat., Birdseye Ed., p. 252, § 40. « 3 lb. p. 2492, § 321. ^ Priv. Laws 1889, ch. 3.5, § 2. 8 Rev. Stats., Smith & Ben., §3161; lb. §§803.5-233; Laws 1891, p. 296; 1S94, p. 205. 9 Bright. Purd. Dig. Suppl. p. 2106 ; Acts 1889, No. 153, § 2. 8 114 THE LAW OF ELECTRICITY. Island all wires in the streets are subject to ordinances and reirulations of the town and citv councils.^ In Texas the corporate authorities of any town, city, or village may, by ordinance or otherwise, specify the locations of posts and wires. 2 In Vermont, if it is desired to erect a line of tele- graph or telephone on the streets of a village, the selectmen may regulate the manner of construction,^ and may require new lines to be placed upon poles already standing, upon terms to be settled bv the selectmen.* § 142. Statutes, Virginia, Washington, West Virginia. — In A^irginia telegraph and telephone lines on the streets of a city or town require the consent of the council.^ In Wash- ington telegraph or telephone lines on public ways, within the corporate limits of any incorporated city, require the consent of the city council thereof.^ In "West Virginia tele- phone lines on county roads require the consent of the County Court, and on streets in any incorporated city, town or villacce. the consent of the council. '^^ § 143. Statutes, Electric Railways. — In the following States constitutional or statutory provisions exist which require the consent of the municipal authorities to the construction and operation of street railways upon and over the highways: Alabama,^ Arkansas,^ California, i'' Colorado, ^1 Georgia, ^^ Illinois, ^^ Indiana, ^^ lowa,^^ Massa- chusetts, ^^ Michigan, 1" Missouri, ^^ Montana, ^^ Nebraska,^'^ 1 Pub. Stats, ch. 38, § 20. 2 Sayles' Ann. Stats. Art. 626. 8 Rev. Laws, § :5635. * lb. §§ 304.5-3018; Laws 1888, No. 32; Laws 1884, No. 47; Laws 1884, No. 23 ; Laws 1882, No. 74. 6 Code, § 1287. 6 Hin'g gtats. & Codes, § 1561. ' Code App. p. 10.59, § 1. 8 Const. Art. 14, § 24. 9 Dig. Stat. § 5469. " Cir. Code, § 497. " Ann. Stat. § .501. »2 Laws 1891, p. 168. 13 Ann. Stats, c. 32, If 28. " Ann. Stats. § 5104. 15 Laws 1890, p. 19, ch. 11. i« Pub. Stats, ch, 113, § 7. " Ann. Stat. § 3548. " Rev. Stats. §§ 8298, 8300. 19 Const. Art. 15, § 12. 20 Comp. Stats. Con. p. .37, § 2. GRANT OP FRANCHISE BY MUNICIPAL AUTHORITIES. 115 Xcw Jersey, 1 New York, 2 Oliio,^ Peuiisylva-nia,* Tennessee,^ Texas, ° Washinirton." § 144. Municipal Consent always necessary to the Use of Highways. — It will be observed that most of the statutes, of which abstracts are given in the preceding sections, have a double effect: First, of prohibiting the use of highways within municipalities for the use of electric lines without the consent of the municipal authorities; and second, con- ferring on the municipal authorities the power to authorize or regulate this use. The former branch of this rule is true in all cases, whether expressly so stated in the statutes or not, unless the company has direct legislative authority, and no electric company can use the streets for the erection of its poles and wires without direct legislative authority so to do, or the permission of the municipal authorities.^ § 145. Whether Municipality has Power to authorize such Use. — The statutes given above show that express authority to regulate the use of the highways for electric lines is by statute generally given to the municipal authorities. This is especially true of telegraph and telephone lines. As to electric railway companies, the statutes authorizing the con- struction of street railways generally confer upon the muni- cipal authorities similar powers of regulation.^ As to electric light companies, the power of municipal authorities 1 Rev. Suppl. p. .364, § 8. 23 Rev. Stat. Birds, p. 2492, § 323. 8 Rev. Stat. §§ 2501, 3438. « l^ws 1889, p. 217, § 15. 5 Code, § 1921. 6 Const. Art. 10, § 7. ' Hill's Stats. & Codes, § .520. 8 Dillon, :\run. Corp. §§ 691, 698, 701, 708, 717, 726. When it is in- tended to thoroughh' reconstruct or rebuild a street railway line, so as to substantially change its character, as by putting in heavier rails, etc., this requires an additional permit or franchise if the statutes give the city au- thorities the right to prescribe the manner of digging up streets, etc. The mere repairing of the road does not require this, as, for instance, putting in a new sleeper or a new rail here and there, but a thorough reconstruc- tion, especially if it substantially bkx-ks up the use of the street, does. Trenton v. Trenton Pa.ssenger Railway Co., 27 Atl. Rep. 483. » Booth, St. Rys., §§ 28-32; supra ^ ^ 143. 116 THE LAW OP ELECTRICIir. to regulate the setting of poles and stringing of wires for this purpose is often given by express statutes,^ and if not, it is generally inferred from a power to light the streets and public highways. 2 In cases of implied powers of regulation questions of construction of the statutes often arise as to the existence of the powers in the municipal authorities, as to which the law is as follows : — § 1-46. Povrer of Municipality to grant Franchise. — The public easement of travel over the highways is vested origi- nally in the public, and nothing short of an exercise of the sovereign power can divest it. The legislature, representing the public, may restrict the public use by granting a right to erect poles and string wires therein. ^ What the legislature may thus do, it may delegate authority to do, by conferring the authority upon municipalities.* This delegated power of municipal authorities to grant franchises to electric com- panies to use the highways for the setting of poles and stringing of wires, laying tracks, and other purposes inci- dental to the carrying on of the business of the companies, may be delegated by the legislature to the municipal author- ities in one of three ways. First. It may be expressly granted in the charter of the city or town, or in legisla- tive acts, either general or special, affecting this subject or relating to the company which desires the right. Second. Such authority may be fairly implied from the language of the express provisions of such charters or legislative acts. Third. Such authority may be implied from the nature of the case when it is absolutely necessary for carrying out the purposes 1 See statutes, supra. §§ 13:^-142. 2 Dillon, Mun. Corp., §§ 091, 092; and see post, Exclusive Rights, § 177, and Municipal Ownership, ch. VI. 8 State, Domestic Telegraph & Telephone Co. v. Newark, 49 N. J. L. .344; Jersey City Gas Co. v Dwight, 29 N. J. Eq. 242; supra, § 60. * lb. p. 346. And in the absence of such delegation, the consent or permission of the municipal authorities is invalid, as against the State, lb. p. 347; Detroit v. Detroit City Railway Co., 56 Fed. Rep. 874. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 117 of the luuiiicipal charter. The mere convenience which may arise from the implication of such powers is not sufficient to authorize them. It must be an absolute necessity. ^ In- stances of the grant of such power by implication from the language of a statute are these : It has been held that a charter giving a city the right to construct and keep in repair all bridges, streets, sewers, and drains, and to regulate the use thereof, gives the municipal authorities the right to regulate the manner of stringing the wires of an electric light company so as to avoid danger by contact with or proximity to the wires of the telegraph com})any below. ^ Under a charter power " to authorize the use of the streets for horse and steam railroads, and to regulate the same," coupled with power to restrict and regulate the operation of the cars, the court held that a power was implied to grant a franchise for the use of the streets by an electric street rail- way, on the ground that the words " horse " and " steam " were not words of limitation, but of illustration ; that the meaning of the legislature must have been to grant to the common council the authority to grant the use of the streets for railroads propelled by any motive power; and that only two were specified because at the time of the grant only these two were known ; and that if the legislature had meant to prohibit the adoption of motive powers which might be subsequently discovered, they would have been more likely to insert an express prohibition to that effect; and that the public good, as well as the probable meaning of the legisla- ture, both tended to the construction of the act which would give the street railroad companies the right to use any motive power. ^ A charter power to regulate streets, and ^ State, Domestic Telegraph & Telephone Co. r. Newark, 49 N. J. L. 344; Morris & Essex R. R. Co. i;. Newark, 10 N. J. Eq. 352, 363; Peun- sylvania R. R. Co.'s App., 93 Pa. St. 150, 159. See a.ho po.^t, § 153. - Western Union Telegraph Co. v. Guernsey & Scudder El. Light Co., 46 Mo. App. 120. 8 Buckner v. Hart, 52 Fed. Rep. 835. Compare, however, ;;a*^, §§ 1S4 el seq. 118 THE LAW OF ELECTRICITY. prevent and remove obstructions therefrom, or to prevent or regulate the erection of any signs, posts, or projections over and upon any street, has been held not sufficient to authorize setting telephone poles. ^ But though a mere power to regu- late the use of streets may not give to the municipal authori- ties a right to make a grant of a location of poles in such a sense as constitutes an easement or a contract irrevocable by the municipality, yet it may be sufficient to authorize the existence of the poles in the streets as a mere license, revo- cable by the municipality.^ These questions of construction of statutory authority occur in almost every case involving the right to set poles. Important classes are inferences of the right to use electricity to propel street cars,^ and in cases where conflicts between the occupation of the streets by different kinds of electric wires arise. ^ § 147. Delegation of Powers. — As a general rule, when a legislature vests municipal authorities with certain power as to the regulation of the use of the streets and highways by electric companies, the authorities to whom such power is given cannot delegate these powers to one of their commit- tees. The power is personal to the city authorities as a whole, and the legislature is supposed to have relied upon their discretion in the exercise thereof, and not to have meant that it should Ije exercised by committees of the city council.^ § 148. Mode of granting Franchise ; Fraud, Duress. — If there is no restriction in the statute delegating this power, or in other statutes relating to highways, as to the manner in which it shall be exercised, the common council may grant rights to set poles, string wires, or lay tracks in streets by resolution as well as by ordinance, for there is nothing in the nature of the subject-matter which requires the more 1 State, Domestic Telegraph & Telephone Co. v. Newark, 49 N. J. L. 347. 2 Detroit v. Detroit City Railway Co., 56 Fed. Rep. 874. 3 Post, § 184 et aeq. * Post, § 212 et seq. ^ Citizen's Electric Light & Power Co. v. Sands, 95 Mich. 551, 560. GRANT OP FRANCHISE BY MUNICIPAL AUTHORITIES. 119 formal mode of grant; but if there are statutes which require all regulations of the use of the streets and highways to be by (ordinance, such grants of location must be made by ordi- nance as being a regulation of the use of the streets;^ but when the consent of a municipal board is required by statute, the consent of the board in its collective capacity is meant, and not of the individual members, and there- fore the signing of a written consent by the individual members of a board is insufficient. The consent must be given at a meeting of the board duly held, and recorded in its records, if it has them, the latter being then the best evidence of the consent. ^ Any fraud or duress in obtain- ing the consent invalidates it, and therefore a consent of the township authorities which is obtained by bribing the township officers, either directly or indirectly, or by intim- idating them, is invalid and void.^ Thus where the consent of a town official was obtained by agreement on the part of a railway company to give him certain contracts for work, in his individual capacity, this was held to be an illegal inducement for his consent, and rendered the latter invalid.* Although as a general rule the legality of the operations of a corporation under its charter and franchises can only be tested by the public authorities, yet if any individual or cor- poration suffers special damage from any alleged illegal proceedings, he or it has a right to institute proceedings for examining into the legality of the same. Consequently if a street railway company is excluded from the use of streets for its tracks by certain ordinances of the municipal authori- ties which have granted franchises in these streets to another street railway company, the former comjmny may bring a 1 Ilalsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380; Ilalsey v. Newark, 54 N. J. L. 102. 2 Lehigh Coal & Nav. Co. v. Intercounty St. Ry. Co., 31 Atl. Rep. 471. ^ Ibid.; Taniaqua & L. St. Ry. Co. v. Intercounty St. Ry. Co., 31 Atl. Rep. 473. * Lehigh Coal & Xav. Co. v. Intercounty St. Ry Co., supra. 120 THE LAW OF ELECTRICITY. writ of certiorari to set aside the franchise of the other company on the ground of illegality. ^ Moreover, when the municipal authorities have been given by the legislature the right to grant to street railway companies franchises for laying tracks in the streets [and presumably the same is true of pole rights also for all electric companies], the exercise of this power by the municipal authorities by grant of a fran- chise as to any particular street or company is a judicial act, and not a legislative one, the distinction being said to be that a decision which affects all streets of a certain class is a legislative statute, while a decision affecting a particular street is a judicial proceeding. Therefore if one of the board making the grant is a stockholder in the company to which the grant is made, he is an interested judge in the matter, and this fact will be sufficient to set aside the grant of the franchise. 2 § 149. Stipulations in grant of Franchise. — Within what limits the municipal authorities may annex conditions and restrictions to the grant of pole rights and track franchises in the highways must depend very largely upon the statutes under which they act and constitutional provisions. Some statutes provide that the municipal authorities must grant a location, and may only designate the place of setting the poles, the kind and height of poles, and the number of wires, thus giving very little scope for other stipulations. ^ In many States, however, the municipal authorities are allowed to affix reasonable regulations to the grant of location.^ It would seem that these regulations should be such as relate to the occupation of the street by the poles and wires or tracks, and the use of the highway by the electric company 1 West Jersey Tr. Co. v. Board of Public Works, 29 Atl. Rep. 163. 2 Ibid. 8 Statutes xupra, §§ 133-143; State, ex rel. Bell Telephone Co. v. Flad, 23 Mo. Ap. L^5 ; Electric Ry. Co. of Grand Rajnds v. Grand Rapids, 84 Mich. 257. ■* Statutes, passim. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES, 121 in a reasonable and proper manner. ^ Such stipulations in the case, for instance, of electric railways, may provide for the paving of that portion of the street occupied by the street railway company, or for the removal of snow and ice in winter, and similar provisions. ^ So in the construction of electric lighting lines, the grant of the municipal authorities may include conditions as to the size, shape, and numljcr of the poles, the number of the wires, and the manner of string- ing them, and similar provisions.^ § 150. Use of Poles by another Company. — It has been held that when a common council was authorized l)y statute to permit the setting of poles and the stringing of wires of an electric light company within its jurisdiction, subject to reasonable rules and regulations, the common council might, in granting permission to set such poles, reserve the right to allow other companies to use the same poles; but if the council exercised this reserved right, and granted another company the right to use the same poles, the council must make such reasonable regulations for the use of the poles by the second company as would allow the joint use safely, such, for instance, as to the number of wires which the 1 But see post, § 151. 2 Benton Harbor v. St. Joseph & B. H. St. Ry. Co., 60 N. W. Rep. 758; Sioux City El. Ry. Co. v. Sioux City, 138 U. S. 98. And the com- pany will be bound to obey these stipulations, and if proper conditions of revocation are inserted in the franchise or ordinance granting the location, such franchise or ordinance may be revoked by the city government for non-compliance with its condition. It does not, however, necessarily fol- low that the city government can maintain a mandamus to compel the railway company to perform this part of its contract, for it is a rule of law affecting this particular remedy, that it will not be allowed when the facts set up- by the defendant show that the writ of mandamus, if issued, will be nugatory on account of the inability of the defendant to carry out the provisons of the contract. Thus where a writ of mandamus was ap- plied for based on the agreement of the railway company to do such paving, the railway company showed that it was insolvent and unable to procure the money to do this work with, and the court refused the writ. Benton Harbor v. St. Joseph & B. H. St. Ry. Co., 60 N. W. Rep. 758. 8 Citizens' Electric Light & P. Co. v. Sands, 95 Mich. 551. 122 THE LAW OF ELECTEICITY. second company might put upon the poles, the height of the cross-arms, time of use, etc.^ § 151. Extraneous Stipulations. — Whether municipal au- thorities can afhx to the grunt of street franchises, extraneous stipulations as to the conduct by the electric company of its business, and wholly foreign to the franchise granted, is a question on which the authorities arc not uniform. Thus, for instance, where a common council granted to a street railway company the right to build its road and set iron or wooden poles outside of the fire district, on condition that the railway company gave transfer tickets over certain streets, it was held that it was not within the power of the common council to affix this condition. It is to be noted that the statute in this case limited the municipal authori- ties to merely specifying the places, height, etc., of poles, and did not even grant the power to affix reasonable regula- tions to the gi"ant.2 On the other hand, a strong case in Pennsylvania has been decided to the effect that municipal authorities in granting such franchises may affix any stipu- lations thereto which seem to them advisable, though not connected in subject-matter with or relevant at all to the construction of the road, and that there is no limitation to this power unless perhaps in cases where the courts, in the exercise of their police power, may supervise such grants. In this case the State Constitution provided that no street railway should be constructed within the limits of any city, borough, or township without the consent of the local authorities, and the court held that this constitutional grant could not be interfered with, either by the legislature or the courts of law. The city, in making the grant to the railway company of the right to occupy streets, had added stipula- tions thereto regulating the fares which should be charged 1 Citizens' Electric Light & P. Co. v. Sands, 95 Mich. 551. 2 Electric Railway Co. of Grand Rapids v. Common Council of the City of Grand Rapids, 84 Mich. 257. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 123 on the street railway Hue, and also requiring a certain per- centage of the dividends to be paid into the city treasury. The court held that both of these provisions were valid exer- cises of the constitutional i)Ower, and could not be reviewed by the court. ^ § 152. Can Municipal Authorities refuse a Location ? — Whether the uiunicij)al authorities can refuse, in tuto, an application for a location on the highways by a company legally authorized to make such application must depend largelv on the statutes. It would seem, in accordance with the cases heretofore cited relating to the federal franchise of telegraph companies, ^ that they could not refuse such an application by a telegraph company, since it is an instru- ment of interstate commerce.'^ In the case of electric light and electric railway companies, it would seem that, in the absence of inconsistent statutory provisions, the municipal authorities might in their discretion refuse such an applica- tion wholly. This point was considered in a case in which an electric light company sought for a writ of mandamus to compel the "board of aldermen of a city to grant a location for its poles. The company based its application upon a statute granting to telegraph companies the right to set their poles in the highways subject to the designation of place by the aldermen, and upon a later statute providing that the acts relating to telegraph companies should so far as appli- cable, extend to lines for the transmission of electricity for the purpose of lighting. The court decided that the manda- mus should not issue, placing the refusal upon either of two grounds. In the first place, that the matter of granting loca- tions was left to the discretion of the aldermen of the city or the selectmen of the town, and that they might refuse wholly 1 Allesliany City v. Millville, etc. Street Railway Co., 159 Pa. St. 411; and to the same general effect, West Side Street Railway Co. v. Barnard, 110 N. y. 532. 2 Supra, §§ 42-45, and cases therein cited. 8 Cf. Suburban Light & Power Co. v. Boston, 153 Mass. 200. 124 THE LAW OF ELECTRICITY. to jrrant such location, in cases where it would interfere with public travel on account of the narrowness of the street, or for other reasons ; and second, that even if it were considered imperative upon the municipal authorities to grant such loca- tion to telegraph companies, yet the reason for an imperative construction of this statute would not apply to electric light companies; that telegraph companies must in almost all cases run from town to town, and through different towns, and therefore it might be considered imperative that their locations should be granted by the selectmen of every town through which they would pass ; but the same reason would not apply to electric lighting companies whose operations are usually confined to a single town or part of a single town, and are of local interest merely; and that so far as electric lighting companies are concerned, it must be taken to be the intent of the statute that the authorities of the town to which, ordinarily, the whole business of the electric lighting company is confined, should have the right to say whether or not any location of poles should be granted. ^ § 153. Interpretation of Municipal Grants. — A leading prin- ciple applicable in the interpretation of grants by munici- palities of rights of way to electric companies is one which has been laid down in many cases in other branches of inter- pretation, viz., that no implication will be indulged in derogation of the rights of the public in the alisence of express or plain terms in the grant. As against the public a grant of privileges will not be given a scope and effect beyond what the plain words require. This is an established principle applicable in the construction of grants by the State, and is equally applicable in the construction of grants and privileges by a municipal corporation affecting public rights. 2 But if there is a reservation in favor of the public 1 Suburban Light & Tower Co. v. Boston, 153 Mass. 200. 2 North Baltimore Pass. Ry. Co. v. North Ave. Ry. Co., 75 Md. 243 ; State, Green ». Trenton, 54 N. J. L. 92; Halsey v. Rapid Transit St. Ry. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 12ij it will )jc literally construed. For instance, in a case where the statute gave street railway companies the right to lay tracks and operate their cars in the streets, subject to such regulations as the mayor and aldermen of the city might make, and the latter in granting the right to use the streets by ordinance reserved the right to let other companies use the same tracks, this reservation was held to be in favor of the public, and not to be construed in the narrow significa- tion of meaning only such railroads as might be operated by similar motive power to that of the original railroad, but to include all kinds of street railroads.^ Other principles of construction were discussed in an earlier section. ^ § 154. Discretion of Local Authorities conclusive. — When the statutes give the local authorities power to designate the location of the poles in the streets and public ways, this provision vests in them a discretion which is final, and will not be revised by courts unless it has been fraudulently exercised. 3 § 155. Proceedings must follow Statutes. — In all proceed- ings to obtain the consent of the local authorities the pro- visions of the statute must be substantially followed. Thus if the public way is in a town, and the statute requires in such case the assent of the town authorities, it will not bo sufficient for the company to obtain the consent of the county authorities, and the setting of the poles with only such con- sent will be illegal.^ So when the statute requires the consent of the " local authorities having control of the street Co., 47 X. J. Eq. 390; Omaha Horse Ry. Co. v. Cable Tramway Co., 30 Fed. Rep. 324; Bridge Co. r. Hoboken, 13 X. J. Eq. 81, 94; Delaware & Raritan Canal & Camden & Amboy R. R. & Transportation Co. v. Camden & Atlantic K. K. Co., IG N. J. Eq. 321, 372. 1 Xorth Baltimore Pass. Ry. Co. v. Xorth Ave. Ry. Co., 75 Md. 233. 2 Supra, § 146. ' Commonwealth r. Boston, 97 !Mass. 555 ; Young r. Yarmouth, 9 Gray, 386 ; Gay v. :\Iutual Union Telegraph Co., 12 Mo. App. 491. * State, "Winter t'. Xew York & Xew Jersey Telephone Co., 51 X. J. L. S3. 12G THE LAW OF ELECTRICITY. or highway," and specifies that in cities the common council and in villages the board of trustees shall be the local authorities for this purpose, but omits to specify what should be considered the local authorities in towns, it will not be sufficient for the company intending to set poles in a town to obtain the consent of a turnpike company having control of the highway over which the poles are to be set.^ § 156. Poles on Private Land. — The question of how far an electric company which sets its poles on private land so near the edge of the highway that the cross-arms extend over the highway, is obliged to obtain permission of the public authorities for this use, was raised in a case in New Jersey. ^ In this case a telephone company desiring to run its line through a town made arrano-ements with the owners of land on one side of the street to set the poles on their land. The company then put on cross-arms which projected over the street, and hung the wires at a distance of twenty-five feet above the street surface. No consent of the town authorities was given or asked. The town threatened to cut down the wires. The telephone company got a preliminary injunc- tion, and on hearing the court said that as the poles were not set in the street, there was no necessity for obtaining the consent of the municipal authorities, nor were the wires necessarilv an obstruction to the street, but that as the municipal authorities were required by statute to make regu- lations as to any use of the streets by telegraph companies, they ought to make such regulations, and, when they were made, the telegraph company would have to comply with them; but that until they were made, as the wires did not obstruct travel in the street, they could remain. § 157. Sale of Franchise at Auction. — In several States statutes have been enacted requiring that the grant by muni- cipal authorities of the right to use the streets for the tracks 1 Rochester Electric Railway Co , in re, 123 N. Y. 351. * American Union Telegraph Co. v. Harrison, 31 N. J. Eq. 627. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 127 and poles of street railways or electric companies must be sold at auction to the highest bidder.^ Generally speaking, in such a case the price of the franchise must be paid in money, and the city authorities have no right to accept the price in anything else. Thus in a case in Louisiana where such a statute was in existence, the city council offered the franchise for sale at auction to be paid for in gravel, and finally sold it to a certain person for so many cubic yards of gravel. The court held that this was ultra vires and void.^ § 158. Assignability of Franchise. — A grant to a telephone, telegraph, electric light or railway company of the power to use the streets, highways, and post-roads for the stringing of its wires and the setting of its poles, contains so much of an element of personal obligation, that such a grant is not assignable unless such a power of assignment is expressed in the language of the grant, or in some general legislation affecting the subject.^ If the grant is in terms to X., hia successors and assigns, or similar language, it is assignable.^ § 159. Revocation of Right to set Poles. — In considering whether a right granted by municipal authorities to set poles and string wires in a public highway may be revoked after it has been granted, several points must be considered. Generally speaking, the grant of the right, when it has been duly accepted by the compan}-, becomes a contract between the municipality and the company, and cannot be revoked, or it may be considered as a grant of a property right, which, once made, cannot be withdrawn at the volition of ^ See statutes referred to in §§ \ZZ-\iZ, supra ; Booth Street Railways, §§ 25. 20. - Buckner v. Hart, 52 Fed. Rep. 835. ' United States r. Western Union Telegraph Co., 50 Fed. Rep. 28.30; Atlantic & Pacific Telegraph Co. v. Union Pac. Ry. Co., 1 Fed. Rep. 745; Western Union Telegraph Co. v. Union Pac. Ry. Co., 3 Fed. Rep. 1. < Toledo Consol. St. Ry. Co. v. Toledo El. St. Ry. Co., 6 Oh. Cir. Ct. Rep. 362 ; California State Tel. Co. v. Alta Tel. Co , 22 Cal. 398; New- man V. Village of Avondale, 31 Weekly L. Bull. 123; Atkinson r. Ashe- ville St. Ry. Co., 113 N. C. 581. 128 THE LAW OF ELECTRICITY. the grantor. Considering it in either of these ways, it is irrevocable unless a power of revocation is expressed in the statute authorizing the grant or in the grant itself. ^ In many States the statutes which grant the franchise to elec- tric companies, expressly state that it is subject to revocation or alteration by the municipal authorities. ^ § 160. Graut of Location may be revoked. — The grant of the right to place the poles, etc., in a highway should be distinguished from the original franchise of being a corpo- ration, with the necessary incidental powers thereto apper- taining granted by the State. The latter kind of corporate franchise can only be revoked by the State itself in a direct proceeding for this purpose, and cannot be attacked collater- ally. The franchise granted by municipal authorities for setting poles or laying tracks in the highways is, as has been said above, in the nature of a contract between the parties, and if it contains proper stipulations giving the municipal authorities the right to revoke it in case of non- compliance with its terms by the electric company, the fact of such non-compliance will give the municipal authorities the right to revoke it, and even if the franchise does not contain such stipulations as to revocation, yet in case of a breach by the electric company of the essential terms and agreements of the franchise, it may be declared forfeited by 1 Citizens' Street Railway Co. v. City Railway Co., 56 Fed. Rep. 746; St. Louis V. Western Union Telegraph Co., 63 Fed. Rep. 68; Western Paving & Supply Co. v. Citizens' Street Railroad Co., 128 Ind. 525; State, Hudson Telephone Co. v. Jersey City, 49 N. J. L. 303; Rutland Electric Light Co. V. ^Marble City El. Light Co., 65 Vt. 377; Citizens' Street Rail- way Co. V. ]\Iemphis, 53 Fed. Rep. 715 ; New Orleans v. Great South. Telephone & Telegraph Co., 40 La. An. 41; Fidelity Trust & Safety Vault Co. V. Mobile St. Ry. Co., 53 Fed. Rep. 687 ; Hannibal v. Missouri & Kansas Telephone Co., 31 Mo. App. 23; Brooklyn Central Railroad Co. V. Brooklyn City Railroad Co., 32 Barb. 358; People's Passenger Railway Co. V. Baldwin, 37 Leg. Int. 424; Detroit v. Detroit City Railway Co., 56 Fed. Rep. 874. a See statutes, supra, §§ 61, 62, 63. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 129 a court of competent jurisdiction. The distinctiijii between the two cases is that if the franchise itself provides for for- feiture on breach of certain of its stipulations, there is no necessity for judicial determination that the breach warrants a forfeiture, whereas if such stipulations as to forfeiture do not exist, there must be a judicial ascertainment that the breach in question is such an essential breach of the stipu- lations of the contract as to give the municipal authorities the right, as one of the parties thereto, to rescind the same. ^ In any event, the municipal authorities may make an electric light company remove its poles or change their location when this is necessary for the improving of streets according to plans for public improvements made l)y the proper city officials.^ This is under the police power of the citv. § 161. Location of Poles, ■when revocable {continued). — Grants of franchise, moreover, are in every case, as has been said, derived originally from the legislature, and when the franchise of allowing poles or tracks in the streets is obtained from municipal authorities, it must l)e by virtue of some delegation of this authority from the legislature. The method of delegating this authority affects to a great decree the revocability of the franchise granted by the municipal authorities. If tlie city authorities have no more express delegation of power in this regard than a general power to regulate and control the use of the streets, they may grant a license to a street railway company to lay its tracks and run its cars in the streets; but as this is in the exercise of a legislative function, a succeeding city government may revoke the ordinance granting this right, and this even though the railway company has expended money on the faith of the ordinance, and will be put to great expense and 1 Belleville v. Citizens' St. Ry. Co., 152 111. 171 ; Spokane St. Ry. Co. V. Spokane Falls, 46 Fed. Rep. 322. 2 Monongahela City v. Monongahela Electric Light Co., 3 Pa. Dist. Rep. 63. 9 130 THE LAW OF ELECTRICITY. loss by the revocation of the franchise.^ When, however, the franchise is granted under an express power given, as it usually is in the statutes, to municipal authorities to desig- nate the streets, and the terms and conditions upon which the tracks shall be laid or poles set, and the cars operated, the effect of the statute together with the consent of the municipal authorities is to vest in the railway company an easement or franchise which is not terminable at the will of the municipal authorities, but is a species of property. It is, however, so far personal to the corporation to which it is granted, that it cannot exist longer than the corporate exist- ence, and if the corporate existence terminates at the end of a certain period, the franchise of allowing tracks and oper- ating cars in the streets fails with the termination of the corporate existence. ^ § 162. Underground Wires. — Owing to the rapid increase in the number of electric wires strung on city streets and over buildings in order to supply conductors for the various electrical uses of telegraphy, telephony, electric lighting and electric railways, there has been a decided tendency towards the putting of these wires in conduits or subways under the hio;hwavs. There are various obvious advantages in this method of disposing of all the electrical conductors except those for the overhead trolley system of electric railways, which necessarily must remain strung over the highways. All other wires, however, if properly insulated and arranged in conduits, can, as experience shows, in populous places be more safely and economically managed if laid under the highways than if strung on posts over the streets or across the tops of buildings. The underground system of electric wires is of so recent growth that statutes regulating this matter are only found in a comparatively small number of 1 Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 874. Cf. American Rapid Telegraph Co. v. Hess, 125 N. Y. 641. ^ Detroit v. Detroit City Ry. Co., 56 Fed. Rep. 874. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 131 the States, and these statutes may be divided into two classes; first, those which permit electric companies thus to lay their wires ; and second, those which compel them so to do. § 1G3. Permissive Statutes for Underground "Wires. — In all these statutes the consent of the municipal authorities is required. In Indiana authority is given to the common council of an incorporated city and the board of trustees of an incorporated town to grant to any person or corporation permission to lay their wires underground for the purpose of supplying electric light. ^ Similar power in Kansas is given to the mayor and council of cities of the first class. ^ In Michigan authority is given to telegraph companies to run their wires underground with a suitable or proper covering for the protection of the same.^ In Massachusetts the wires may be laid under any public way or square.* In Mississippi electric light wires may be placed in conduits under the streets by the consent of the municipal authorities.^ In ]\rissouri telegraph and telephone wires may be placed under any of the public roads, streets, and waters, as well as over, with municipal consent.^ In New Hampshire all electric wires may be placed beneath the surface of the highways instead of being on poles above them.'^ In New Jersey tele- graph and telephone companies arc authorized to construct their lines liy means of underground cables containing the wires, instead of posts or poles sustaining the wires. ^ In New York electric telegraph companies arc authorized to construct and lay lines of electrical conductors underground , with the consent of the common councils of cities, the trustees of villages, or the commissioners of highways of towns, ^ In Ohio telcgrajih and telephone companies arc authorized to construct underground wires and pipes, or conduits for the 1 Ann. Stat. § 4303. - Gen. Stats. § 555, cl. 23. » How. Ann. Stat. § 3697. •• Pub. Stat. 27, § 47. 6 Ann. Code, § 2933. « Rev. Stats. § 2721. ' Pub. Stats, ch. 81, § 1. « Rev. Supp. p. 1023, § 3. 9 1 X. Y. Rev. Stat., Birdseye Ed., p. 9G8, § 1. 132 THE LAW OF ELECTRICITY. lines, in the streets and i)ublic ways of a city, with the consent of the city, which shall be given by the Board of City Commissioners, the Board of Public Improvements, the Board of Public Works, or the Board of Administration, or by the city council where no such board exists. ^ § 1G4. Mandatory Statutes. — In several States statutes requiring electrical wires to be placed underground have been already enacted. Thus in the District of Columbia it has been made unlawful for the commissioners of the District since Sept 15, 1888, to permit or authorize any additional wire to be erected or maintained on or over any of the streets or avenues of the city of Washington, and the commissioners are directed to report upon the best method of placing the same underground. ^ In Maryland the mayor and council of Baltimore are authorized to provide a scries of conduits under the streets, lanes, and alleys for the use of electric wires, and to require all wires and the poles carrying them to be removed from the surface of the streets, lanes, and alleys, and to be placed in the conduits under penalty, and to establish reasonable rental for the use of the conduits.^ In Massachusetts the mayor of the city of Boston is empow- ered to appoint a commissioner of wires, who may require all wires, cables, and conductors to be removed or placed underground within certain sections of the city, except long distance telephone wires and railway trolley, guard or span wires, and poles used exclusively for local distribution from underground wires.* And thereafter no such poles and wires can be placed in those sections of the city. When companies so place their wires underground they must file a map showing the locations of the wires in the streets. In certain exceptional cases the commissioner may authorize 1 Laws 1891, p. 296; Laws 1894, p. 205. ^ Rev. Stats., Supp., ch. 715, cl. 3. 8 Acts 1892, ch. 200. 4 Acts 1894, ch. 454, §§ 1, 2, 9. GRANT OP FRANCHISE BY MUNICIPAL AUTUORITIES. 133 deviation from the underground system if, in lii.s opinion, it is impracticable in these special instances, and thereupon the company must get a location of poles and wires from the mayor and aldermen.^ A similar act existed in New Jersey. ^ The effect of the last clause quoted of this act has been con- sidered in a recent case in New Jersey, so far as the possi- bility is concerned of construing it as authority to the subway commissioners to grant pole rights for overhead wire con- struction, and it has been denied that the clause has this effect. The real meaning of the section which gives the subway commissioners power to assent to such overhead con- struction in cases where they deem it advisable is to remove the prohibition of the statute to such construction, and it requires the usual consent of the municipal authorities in addition.^ § 165! Same Subject (continued). — In New York all elec- tric wires, except electric railway wires, in incorporated cities having a population of five hundred thousand or ov'er, must be placed under the surface of the streets, lanes, and avenues of the city.* And the companies owning them are required to remove them from the streets.^ And a commis- sion of electric subways is appointed to cause the removal of the aforesaid wires from the surface,^ and to supervise and approve of any plans for underground conduits offered by any companies,' and for a taxation of the companies using the subways in proportion to their mileage to pay for the same.^ In Ohio, in cities where subways have been con- structed, it is unlawful to set poles for telegraph or telephone lines within that portion of the city where the subways have been constructed, except for the purpose of distribution to 1 Acts 1894, ch. 454, §§ 5, 6. 2 Acts 1892, c. 48; R. 1894, c. 7. ' Trustees Presbyterian Church v. State Board of Commissioners, 27 Atl. Rep. 809 (X. J.). 4 1 N. Y. Rev. Stat., Birdseye Ed., p. 9G9, § 3. ' lb. § 4. 6 lb. §§ 7, 8. ' lb. §§ 9, 10. 8 lb. p. 971, §§ 14, 16. 134 THE LAW OP ELECTRICITY. subscribers or stations, and such poles shall be located, so far as possible, iu alleys ; but existing telegraijh companies are to be allowed time to procure the necessary authority and construct subways. ^ In Vermont it is provided that persons desiring to carry telegraph or telephone wires across a high- way in a town shall either place them underground or so high above the highway that they will not prove an obstruction to travel.^ § 166. Constitutionality of Underground Statutes. — The question whether such statutes are constitutional has been raised in several cases. The strongest objections have been made to them by the telegraph companies, which rely not only upon their right to occupy the streets by virtue of State statutes granting them this right, but also by reason of the federal statutes conferring upon them certain rights of way, which have been before discussed. ^ Perhaps the most import- ant of these cases was one which has been decided in New York in relation to the proceedings of the subway commis- sioners under the subway acts of 1884, 1885, 1887.^ This case considers the right of the legislature of New York to order all electric wires in cities of more than a certain number of inhabitants to be placed underground. The plain- tiff telegraph company neglected to remove its poles and wires from the streets as ordered by the State authorities in pursuance of the subway acts, and its poles and wires were cut down and removed by the subway commissioners, for which act this suit was brought. The court first considers the question of what rights are granted to telegraph com- panies by the various statutes of New York giving them the right to erect poles and string wires on the public highways of New York State, and comes to the conclusion that these statutes, being general legislative enactments, do not convey 1 Laws 1894, p. 205. « Laws 1884, No. 2-3, § 1. 3 Supra, §§ 38-58. * American Rapid Telegraph Co. v. Hess, 125 N. Y. 641. GRANT OF FRANCUISE BY MUNICIPAL AUTUOIilTIES. 135 any i)recise grant of any right or easement in tlio jjuIjHc highways, nor constitute any contract which would be violated by the repeal of the statutes, but merely a license to occupy the streets. The court then says that even sujj- posing that a grant of some sort is conferred by these statutes, still the statute requiring the wires to be placed underground is not in contravention of this right, since it is merely a ]>olice regulation prescribing the manner in which telegraph companies shall exercise the right granted them, if any, by the statute; that the statute granting the right of way expressly says that telegraph poles shall not be so placed as to obstruct or incommode the use of the highways for public travel ; and that although at first the telegraph poles did not so incommode public travelling, being few, and travelling not being so extensive as at present, yet in the course of time, owing to the multiplication of poles and the growth of the use of the streets as highways, the travelling is seriously incommoded by the poles, and therefore the regulation that the wires should be placed underground is proper and con- stitutional. The same reasoning shows that these statutes are not obnoxious to Section 52G3 of the United States Revised Statutes, giving a right of way to telegraph com- panies over post roads, as has been seen before.^ The court thus places the right of a State to order the wires under- ground firmly upon the general police powers of the State, where it unquestionably belongs, and thus allows its opera- tion over the wires of electric lighting companies, tele- ))hone companies, and all other electric companies, even though they may have grants of rights of way from the municipal authorities which arc in effect contracts between the company and the municipal government, for, as the statutes in question are merely regulations of the mode of enjoying these grants, and depend upon the police power, they are not infringements of the contract, and 1 Supra, § 46. 136 THE LAW OP ELECTRICITY. therefore not liable to the constitutional objections arising therefrom. § 167. Cases on Underground Statutes. — Several other cases on the effect of these statutes have been decided in New York. An early case was People v. Squire.^ In this case the New York Electric Lines Company applied for mandamus to compel the Commissioner of PuIjHc Works to give it permission to dig up the streets and lay its wires and cables underground. The company had received from the legis- lature the authority to obtain franchises for this purpose, and had obtained such franchises from the municipal govern- ment of the city of New York, subject to the approval of the Commissioner of Public Works, of plans and locations sub- mitted to him. Subsequently the Act of 1885, which created the Subway Commission, enacted that all companies putting electric wires underground must obtain the consent of the subway commissioners. The Commissioner of Public Works refused to give his consent unless the company had submitted their plans and specifications to the commissioners of the subway. The court held that this was correct ; that the statute of 1885, although passed subsequently to the obtain- ing of the franchise in question, covered all companies with- out regard to the development of their organization; and that the act was not unconstitutional as a local act, because it covered all cities of a certain class, and all companies wishing to put electric light wires underground in those cities, nor as by implication repealing the subway Act of 1884 without express mention, because it is simply a speci- fication as to the method of carrying out the provisions of the previous act, nor as imposing an unlawful tax on the company for the payment of the Subway Commission's expenses by the companies which were obliged to submit to its rules, this being a just distribution of the expenses, nor as impairing the contract contained in the franchise of the 1 107 N. Y. 593. GRANT OP FRANCHISE BY MUNICIPAL AUTHORITIES. 137 company, as it is merely a police regulation which overrides all contracts. A later case was United States Illuminating Company v. IIcss. ^ This was an ap^jlication by several electric light companies to restrain the Board of Electrical Control from putting their wires underground. The court held that the question of whether or not any specified wires should be put underground was vested entirely in the Board of Electrical Control as a matter of discretion. The ]>lain- tiffs contended that this statute was unconstitutional, as depriving them of rights which they had gained under the franchises granted by the city. The court held that it was not unconstitutional, because it was simply a police statute regulating the exercise by the various companies of the rights given them by the city in the interest of the public safety. Plaintiffs, moreover, contended that the action of the board was giving an unjust preference to telephone and electric railroad companies. The court held that even if this were so, it was a matter for mandamus as provided by the statute, and not for injunction. In another case ^ quite a number of electric light companies brought suit for an injunction to prevent the Commissioner of Electric Light Wires from tearing down their wnres. Under the statutes of 1884-85-87 the subway commissioners and the Board of Electrical Control were authorized to construct subways and compel all electric light and other electrical companies to put their wires underground. As a matter of fact, there were no subways constructed at the time of the acts com- plained of in which the lines of the electric companies, plaintiffs, could be placed. The Board of Electrical Control had prevented them from repairing the insulation of their wires, and the mayor and Commissioners of Electric Light Wires had begun to tear down their wires as being a menace to public safety from imperfect insulation. The companies » 19 N. Y. St. Rep. 883. « United States Illuminating Co. v. Grant, 27 N Y. St. Rep. 767. 138 THE LAW OF ELECTRICITY. contended that they could not be required to put their lines undero-round until the subways were ready to receive them, and that they should be notified by the mayor of such lines as he considered defective in insulation, and allowed to repair them instead of their being torn down. The court took simply the broad ground that the wires of the plaintiff companies were a nuisance, and dangerous to public safety, and might be abated even by individuals, and that the mayor and Board of Electrical Control had complete authority to tear them down, and were not obliged to notify the main- tainers of the nuisance of their intention, nor to point out in what particular portions of the lines the nuisance existed. Still another case on the same general subject was United Lines Telegraph Company v. Grant. ^ This was a bill in equity to restrain the collection of a tax on a telegraph com- pany for its share of the expense of putting the electric wires undero-round in New York. The company maintained that the statutes of 1884, 1885, and 1886, providing for the put- ting underground of all electric wires, were unconstitutional, and even if not unconstitutional, the actual proceedings thereunder had so far departed from the authorization of the statute, that they were not protected by those acts. The court dismissed the application on the ground that if the statutes were unconstitutional, the applicants might resist the enforcement of the assessment without becoming liable in any way, as the sheriff and collector of taxes would in such case act entirely without authority. § 168. Exclusive Franchises. — Since the legislature repre- sents the sovereign power of the State and the right of the public in highways, it may grant exclusive rights of way over the highways for the poles and wires or tracks of any electric companies, subject to two restrictions; first, that such exclusive rights are not in conflict with any provision of the State Constitution prohibiting grants of monopolies 1 137 N. Y. 7. GRANT OF FRANCmSE BY MUNICIPAL AUTHORITIES. 139 or exclusive rights; and second, that such exclusive grant is not in conflict with any provision of the federal Constitu- tion. ^ It has already been seen,^ that the Act of Congress giving telegraph companies rights of way over post roads prevents any State legislation which grants exclusive rights of such a nature as to interfere with the rights of telegraph companies under this federal act, and therefore State legis- latures may not, either directly by their statutes, or in- directly by the exercise by municipal authorities of the delegated power, grant any exclusive rights which interfere with the enjoyment by telegraph companies of their federal franchise.^ § 169. Exclusive Grant for Telegraph by Act of Legislature. — A few attempts have been made by telegraph companies to have incorporated in their charters clauses conferring upon them the exclusive right to do telegraphing business within certain localities. Such grants are held to be inoper- ative against other telegraph companies who seek to acquire rights of way in the same localities, on account of the Act of Congress, Section 5263, above referred to.* A leading case upon this point was Pensacola Telegraph Company v. Western Union Telegraph Company.^ In this case the Pensacola Telegraph Company had inserted in the charter granted to it by the State legislature, a provision giving it the exclusive right to do telegraphing within a certain locality, but the United States Supreme Court held that the telegraph is a means of interstate commerce, and also an agent of the federal government, and on these grounds, as well as on account of the franchise granted by Section 5263 of the United States Revised Statutes, the exclusive grant of ^ Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1; New Orleans Gas Co. v. Louisiana Electric Light Co., 115 U. S. 650 ; Louisville Gas Co. v. Citizens' Gas Co., lb. G83. 2 Supra, §§ 43 and 45. * Pensacola Telegraph Co. v. 'Western Union Telegraph Co., 96 U. S. 1. < See supra, §§ 43, 47. 6 qq u. s. 1. 140 THE LAW OF ELECTRICITY. the State legislature could not be maintained against another telegraph company seeking to enter the same terri- tory, and which had accepted the provisions of said section of the statutes. The decisions of the State courts, however, on this subject are not entirely in accord with those of the federal courts. In an early case in California, 1863, an exclusive grant by the State legislature to a telegraph company was held to be valid. In this case the charter provision was "That no person or persons shall be allowed to locate or construct or run any telegraph line or any portion thereof within a half mile of the route selected by the [chartered persons], except that within one half mile of any incorporated city proprietors of any such line of telegraph may enter said city and depart therefrom, making their stations within twenty yards of the station of said chartered persons." Local side lines were also authorized, but lines were not to be constructed nor offices established so as to do business directly or indirectly between the cities aforesaid. The court held that this pro- hibition against competition by other lines was constitu- tional, and entitled the telegraph company to an injunction against another line proposing to build within the same territory. It is to be noticed that this decision was rendered before the United States Supreme Court had rendered the decision in the case of the Pensacola Telegraph Company, and in all probability the State courts would now follow the authority of the latter decision. ^ § 170. Exclusive Right of Way for Telegraph over Railways by Contract. — Telegraph companies have frequently, more especially in the earlier days of the business of the company, entered into contracts with railway companies for the exclu- sive privilege of running a telegraph line along the right of way of the railroad company. Such contracts sometimes also included an agreement by the railway company not to 1 California State Telegraph Co. v. Alta Telegraph Co., 22 Cal. 398. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 141 haul poles or other supplies over its line for any other tele- graph company. These agreements have generally been held void by the courts as against other telegraph comj)anies seek- ing similar rights, either on the ground that they are in contravention of the rights conferred on telegraph com- panies by the federal statute, which forms Sections 52G3 et 8eq., of the United States Revised Statutes, or because such an exclusive agreement prevents competition in the important commercial business of telegraphy, and is an agreement in restraint of trade, and therefore void as against public policy, the courts holding that either of these grounds is sufficient to render such exclusive rights granted by the rail- way company to a particular telegraph company to be inoper- ative and void. Especially the federal courts maintain that the section of the United States Revised Statutes, above referred to, gives to every telegraph company which accepts its pro- visions, as required thereby, the right to construct and maintain and operate its line of telegraph over every post road (and all railroads are post roads) without regard to any exclusive rights granted by the railway company to any other telegraph company. ^ In the case of Pacific Postal Telegraph Cable Company v. Western Union Telegraph Company, the postal com})any had such an exclusive contract with the railroad company, and attempted to maintain its exclusive right on the ground that the contract was in reality a grant ^ "Western Union Telegraph Co. r. American Union Telegraph Co., 9 Biss. 72; Western Union Telegraph Co. v. Burlington & Southwestern Railway Co., 3 McCr. 1:30; s. c. 11 Fed. Rep. 1; Western Union Telegraph Co. I'. Baltimore & Ohio Telegrapli Co., 19 Fed. Rep. G60; Western Union Telegraph Co. v. American Union Telegraph Co., Go (ra. IGO; Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co., 22 Fed. Rep. 133; Western Union Telegraph Co. v. Baltimore & Ohio Telegraph Co., 23 Fed. Rep. 12; Baltimore & Ohio Telegraph Co. v. Western Union Tele- graph Co., 24 Fed. Rep. 319; Pacific Postal Telegraph Cable Co. v. Western Union Telegraph Co., 50 Fed. Rep. 493; New Orleans, etc. Railway Co V. Southern, etc. Telegraph Co., 53 Ala. 211; Mercantile Trust Co. v Atlantic & Pacific R. R. Co., 63 Fed. Rep. 513. See also, supra, § 45. 142 THE LAW OF ELECTRICITY, of an interest in tlie land, and as such could not be en« croachcd upon by the other telegraph company without com- pensation. The court, however, held that if it was a grant of an interest in land, it was ultra vires for the railroad com- pany to make such a grant, as it held its lands under its charter solely for railroad purposes, and that whether the document were considered as a grant or a mere contract, it was void so far as it attempted to confer upon the telegraph company any exclusive right to run its telegraph lines over the railroad company's right of way. § 171. Grant of Monopoly separable. — Although the grant by a railway company to a telegraph company of the exclusive right to construct a telegraph line over the railroad company's right of way creates a monopoly, and is in restraint of trade, and therefore void as against public policy, yet it does not necessarily follow that the whole agreement between the par- ties is tainted with the illegality of this monopolistic grant, and if it can be separated from the rest of the contract the other provisions will be upheld by the courts while condemn- ing the grant of the exclusive right of way.^ 8 172. Exclusive Right in Telegraph Company. — One of the earliest cases in which a claim was put forward by a tele- graph company to an exclusive right to do the business of telegraphy within certain specified limits, was a case which came before the Supreme Court of the United Sta,tes in the early days of the art of telegraphing. The Western Tele- graph Company, owning a line of telegraph between two large cities, and having it fitted with certain telegraphing apparatus which had been patented, and which it had the sole right to use, brought a bill in equity against a rival telegraph company which operated a line of telegraph between the same places, but by a circuitous route. It is not clear upon what grounds the plaintiff company sought to 1 Western Union Telegraph Co. r. Burlington & S. W. Ry. Co., 11 Fed. Rep. 1 ; Smith v. Western Union Telegraph Co., lb. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 143 enjoin its rival, but it seems to he in general that the expen- diture of capital and the application of patented apparatus to complete the line between the two places in (piestion, gave the prior comi)any a vested exclusive right for the business between these places. The Supreme Court of the United States at once disposed of this claim. ^ § 173. Exclusive Grants by Municipal Authorities. — As has been previously secn,^ the legislature may, and in fact gen- erally does, delegate to the municipal authorities more or less fully the right to grant locations of poles, wires, or tracks for electric companies in the highways, and the ques- tion whether a grant of an exclusive right for such a loca- tion, made by proper municipal authorities is valid depends upon several considerations. In the first place, if a restric- tion exists either in the Constitution or the statutes of the State, prohibiting such exclusive grants, they are void.^ It is outside the scope of this work to consider general consti- tutional or legislative provisions against the granting of monopolies, but there are express statutory provisions in several States preventing the granting of exclusive rights to telegraph or telephone companies, which will be shortly noticed. These statutes reinforce the provisions of the federal Constitution above discussed. § 174. Arkansas, Kansas, Louisiana. — In Arkansas nO con- tract is allowed between telegraph and telephone companies and the owners of land or other persons, for the right to erect, operate, or maintain telegraph and telephone lines over the lands to the exclusion of other persons or corpo- rations authorized to erect similar lines.* In Kansas the 1 Western Telegraph Co. v. Magnetic Telegraph Co., 21 How. 456; Same v. Penniman, 21 How. 400. 2 Supra. §§ 115, 146, and statutes passim. 8 Pensacola Telegraph Co. v. Western Union Telegraph Co , 96 U. S. 1; Grand Rapids Electric Light & Power Co. v. Grand Rapids E. E. L. & F. G. Co., 33 Fed. Rep. 659. * Acts 1885, Act 107, § 4. 144 THE LAW OF ELECTRICITY. statute provides that no corporation shall have power to contract with any owner of land for the right to erect and maintain a telegraph over his lands to the exclusion of the lines of other companies.^ In Louisiana a similar provision covers both telegraph and telephone lines. ^ § 175. Missouri, Ohio, Tennessee, Texas, Virginia. — In Mis- souri a similar provision extends to both telegraph and telephone lines. ^ In Ohio the statute provides that it is unlawful for any telegraph company and the owner of any right of way to contract for the exclusive use thereof for telegraphic purposes.* In Tennessee no telegraph or tele- phone company can contract with the owner of lands or rights of way, or any other person, for the right to erect and operate telegraph or telephone lines over any lands, privi- leges or easements, to the exclusion of other persons and corporations authorized to do the same business.^ In Texas the statute provides that no corporation shall have the power to contract with any owner of land for the right to erect and maintain a telegraph line over his lands to the exclusion of other companies.^ In Virginia the statute provides that no right of way acquired by a telegraph or telephone company shall be to the exclusion of other like companies from rights of way over the same lands." § 176. Intent to grant Exclusive Privilege not inferred. — In the absence of such legislative restrictions it is probably true in most States that the legislature may itself grant exclusive franchises except as above stated as to telegraph companies, or it may delegate the power so to grant them to the municipal authorities; but an important rule which is insisted upon by the courts in several cases, is that the power to make an exclusive grant, or the exclusiveness of a 1 Gen. Stat. § 1385. = Acts 1880, No. 124. 8 Rev. Stat. § 2723. * Rev. Stat., Smith & Ben. § 3455. 6 Code, Acts 1885, c. 66, § 4. « Sayles' Annot. Stat., Art. 624. ' Code, § 1289. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 145 grant made, will not be inferred or implied. Tt must be in both instances expressly given by the legislature and by the municipal authorities, for it is a well-settled principle that no implication will be indulged in derogation of the rights of the i)ul)lic in the absence of express or plain terms of grant. An intention to grant an exclusive privilege or monopoly will not be implied, nor will a grant of privileges be given a scope and effect in restriction of public right beyond what the plain words require. This principle applies not only to grants by the State, but to grants of privileges by municipal corporations affecting public rights.^ In many States also the general policy to prevent monopolies or exclusive rights would allow the courts to hold exclusive grants void. § 177. Exclusive Grant not implied. — Tt has been decided that the ordinary grant to a city of the power to cause the streets to be lighted, or similar authority, does not include the power to grant an exclusive right to the use of the streets for this purpose to any electric light company, even if the grant of such an exclusive right will induce the electric light company to enter into a contract for lighting, or even if it is absolutely necessary in order to procure such light- inn;. ^ In a case in the Circuit Court of the United States it was held that a city which has by its charter the right to cause the streets to be lighted, cOuld not, under the authority conveyed l)y this charter, make a grant to a gas company of the exclusive right to carry on the gas lighting business in ' North Baltimore Passenger Railway Co. r. North Avenne Railway Co., 75 ]\rd. 233; State, Green v. Trenton, 54 X. J. L. 90 ; Ilalsey r. Rapid Transit Street Railway Co., 47 N. J. Eq. 390 ; Omaha Horse Railway Co. V. Cable Tramway Co., 30 Fed. Rep. 324 ; Asheville St. Ry. Co. i-. West Asheville &c. S. S. St. Ry. Co., 19 S. E. 697; Bridge Co. v. Hoboken, 13 N. J. Eq. 81 ; Delaware & Raritan Canal Co. v. Camden & Atlantic Rail- way Co., 16 N. J. Eq. 371. 2 Grand Rapids Electric Light & Power Co. v. Grand Rapids E. E. L. & F. G. Co., 33 Fed. Rep. 659. 10 146 THE LAW OF ELECTRICITY. the city, even though this exclusive right were limited as to time.^ It was further held in this case that a grant in a contract of the exclusive right to lay gas pipes and do a gas- lighting business is not impaired by a subsequent contract between a city and an electric lighting company granting the latter the right to use the streets for the purpose of set- ting poles and stringing wires to light the city with electri- city.^ In a Michigan case the direct question was raised whether the grant of an exclusive right to an electric com- pany to use the streets for setting poles and stringing wires, was valid against another electric company seeking to use the streets for the same purpose, so that the prior company could get an injunction against the later company and restrain it from the use of the streets for that purpose. Several elements entered into the decision of this question. The first was whether the State Constitution prohibited the grant of monopolies and exclusive privileges. The second question was whether the power to grant such exclu- sive privileges which lies originally with the people of the State, as represented by the legislature, had been delegated to the municipal authorities. It was held that a city or town has only such powers as are granted it by the legis- lature ; first, by express words ; second, by fair implication from the language of the legislature ; and third, such as are indispensably necessary to the exercise of powers granted by the legislature. A mere convenience in this last case is not sufficient to authorize such implication. In the case in question the power to cause the streets to be lighted was expressly granted, together with the power to regulate the use of the streets in general, to regulate the placing of lamp- posts, and the power to amend or repeal any city ordinances. The court held, however, that these grants were not sufficient to confer upon the city authorities the right to make an 1 Sajrinaw Gas Light Co. v. City of Saginaw, 28 Fed. Rep. 529. 2 Saginaw Gas Light Co. v. City of Saginaw, lb. See a.\so post, § 179. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 147 exclusive grant for the use of the streets for the purpose of setting poles and stringing wires for electric light. The court Uikes the ground that the highways belong to the people, and that the right of a city to use them for its light- ing does not give the city any power to exclude the public from them, and that nothing short of a delegation ]>y the State to the city of the whole sovereign i)owcr over the streets would give to the city the right to make any such exclusive grant. The fact that such a grant would be an important factor in the business dealings between the city and the electric light company in relation to securing the contract for lighting the streets and public places in the city was held to be not sufficient to change this rule, nor would it, even if the electric company absolutely refused to make such a contract without the exclusive grant. ^ § 178. Exclusive Franchise for Street Rail-way sustained. — The grant of an exclusive franchise or right of way along certain streets by municipal authorities has been sustained in the Circuit Court of the United States. In this case a State statirte authorized the municipal government to grant franchises or rights of way to street railway companies, and in pursuance of this authority the municipal government granted a franchise which contained a clause to the effect that the city should not "during all the time to which the privileges hereby granted to said company shall extend, grant to or confer upon any person or corporation, any privi- lege which shall impair or destroy the rights and privileges herein granted to said company." Subsequently the city authorities granted a right of way over the same streets to a second street railway company, and the first one thereupon brought suit in the federal court to enjoin the construction of the second railway, alleging that a grant of a right of way to a street railway company, if accepted and followed ^ Grand Rapids Electric Light & Power Co. v. Grand Rapids E. E. L. & F. G. Co., 3;i Fed. Rep. G59. 148 THE LAW OP ELECTRICITY. bv construction of the lines, is a contract, and that the action of the municipal authorities in granting the second right of way was an impairment of the obligation of the original contract, in opposition to the Constitution of the United States, which enacts that no State shall pass any law impairing the obligation of contracts.^ The court sustained this view of the case, holding the first franchise was unques- tionably a contract with the first company, and that although the impairment of this contract was directly effected by the act of the municipal authorities, yet since they acted by virtue of legislative authority delegated to them by the legis- lature of the State by a State law, it was, in effect, brought about by a State law acting indirectly, and therefore was within the provision of the United States Constitution. ^ § 179. Interpretation of Exclusive Rights. — In a case in Iowa 3 the plaintiff, being a stockholder in the Des Moines Broad Gauge Railway Company, brought a bill in equity to restrain the company from equipping its tracks with electri- cal apparatus, and operating an electric railway, the reason alleged being that another company, the Des Moines Street Railway Company, a narrow-gauge road, had an exclusive right for horse-car service in the city of Des Moines; and he alleged that it was wasting money for his road to try to meet the objection that the other road had the exclusive right of the streets for street-cars. The court held that the broad- gauge road had only an exclusive right for horse-car service, and this did not interfere with the town granting rights to another company to run an electric road, or any other road except a horse road ; and that the agreement in the ordinance granting the narrow-gauge road its exclusive right that the city would not grant any privileges or franchises that would interfere with this right, meant simply interference with a 1 U. S. Constitution, Art. T., § 10. 2 Citizens' St. Ky. Co. v. City Ry. Co., 56 Fed. Rep. 746. 3 Teachout v. Des Moines, etc., R. Co., 75 la. 722. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 149 horse-railroad right, and would not prevent the granting of electric-road franchises.^ That a grant of right to set poles for electric-lighting is not an infringement of a prior exclusive grant of a gas lighting privilege, was held in a case which went to the Supreme Court of the United States. 2 § 180. Exclusive Rights by Statutes. — In some States gen- eral statutes create limited monopolies in favor of certain classes of companies. Thus in Massachusetts a statute exists whereby it is provided that when an electric light company is engaged in the business of furnishing electric light in a town, no other similar company shall Iny or erect wires over or under the streets for the purpose of carrying on the same business without the consent of the mayor and aldermen. Under such a statute the court has held that such evasions by a new company, as selling the customer so much of a wire as crosses the street, will not be allowed, nor even letting the customer put up his own wire across the street, and then using it to furnish electric lighting current upon. The statute is construed to mean not only the prohi- bition against erecting wires, but also against maintaining or using them.^ Similarly in Pennsylvania a statute exists giving monopolies to certain kinds of lighting and heating companies, but it has been decided that electric light com- panies do not come within the provisions of this statute, because it refers to companies supplying light and heat through i)ipcs.* § 181. Right to use Electricity for Lighting. — As waS said previously,^ the power to light the streets and public places 1 See Des Moines St. Ry. Co. v. Des Moines Broad Gauge St. Ry. Co., 73 la. 513, s. r. ; and ante, § 177. 2 Newport Light Co. v. Newport, 151 U. S. 527; Newport v. Newport Light Co., 89 Ky. 4.')4, 84 Ky. IfiO. See also, ante, § 177. 8 Atty.-Geii. v. Walworth Light & Power Co., 137 Mass. 86. 4 Scranton El. Light & Heat Co.'s App., 122 Pa. St. 154. 6 Supra, § 132. 150 THE LAW OF ELECTRICITY. of cities, towns, and other populous localities, is considered to be an inherent power of the municipal authorities, for the purposes of convenience and safety in the use of the highways and public places at night. The right to use electric light for this purpose in cases where no express statutory authority is given, and incidentally to authorize the laying or stringing of electric light wires in the streets, would seem to follow from the principal power to provide lights. This point, so far as it relates to the power of municipalities to acquire and operate their own electric light plants, is discussed fully in the chapter on Municipal Owner- ship of Electric Light Plants,^ and it is sufficient to state here that opposing decisions have been rendered in two States as to the power of municipalities to use electric light for lighting streets and public places, when the mode of so doing is by acquiring and operating an electric light plant, in the absence of statutory authority to use electric light. In Massachusetts, where the only statutory powder was till recently to erect and maintain street lamps, and to raise money for this purpose, the court held that this power did not carry with it as incidental the power to purchase or construct a costly electric light plant, and to raise money for this purpose by taxation. ^ In this State, however, the common practice of contracting with electric light companies for lighting streets and public places by electricity has pre- vailed for many years without question of the right of the cities and towns so to do. In Indiana it is held that as the municipalities have an inherent power to light streets and public places, they may, in the absence of statutory pro- visions, provide that form of light which is best suited to the wants and financial condition of the corporation. ^ The latter decision would support the right of municipalities to 1 Post, §§ 188-197. 2 Spaulding v. Peabody, 153 Mass. 120. 3 Crawfordsville v. Braden, 130 Ind. 149. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. lol use electric light, either by contract or by operation of a municipal plant, without express statutory authority. § 182. Right to use Electricity as Motive Power, Street Railways. — Thc riglit of a Street railway company to use electricity as its motive power depends upon two things. First, a sufficient grant from the legislature. Second, a sulhcient consent from the municipal authorities. In cases where thc grant from thc legislature of the right to use electricity is expressed in the statutes, as is the case in many States,^ and the municipal authorities have granted the requisite consent, no question can arise except whether the grant includes the right to set poles and string wires in the streets as auxiliary to the principal grant. ''^ § 183. Right to set Poles and string Wires as incidental. — A grant of authority to. use electricity as the motive power of a street railway carries with it, as accessory to the principal power, an authority also to use the necessary apparatus in the shape of poles and overhead wires for the eihcient exer- cise of the principal power. ^ This is because the only com- mercially possible form of electric railway at the present day is what is known as the overhead trolley system, which requires such poles and wires. It is by no means sure, how- ever, that the progress of invention may not discover other methods which will enable the street railways to use elec- tricity as motive power without the installation of overhead apparatus, and if this proves to be the fact, it is questionable whether the courts will sustain their present rulings so as to impose the very substantial burden of poles and wires on the streets as a mere auxiliary and inferential power from the grant of the authority to use electricity as motive power. In fact, in a case in New Jersey, the court has already taken 1 Supra, §§ 133-143. 2 As to the construction of such grants, see ante, §§ 146, 153. 8 Taggart v. Newport St. Ry. Co., 16 K. I. 668; Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 390. 152 THE LAW OF ELECTRICITY, the ground that the overhead system is by no means the only successful electric railway system ; that the storage battery system which requires no outside apparatus, and the underground conduit system, which requires no poles or overhead structures, are both practical, and that a statute which authorizes the use of electric motors in street railway operation does not inferentially authorize the setting of poles and stringing of wires. ^ No doubt the court in this case was influenced by the narrow language of the statute, which authorized merely the use of "electric motors," but the court takes occasion to criticise the doctrine which allows such large and important structures as the poles and overhead wires of the trolley system to be carried inferentially under a grant of the right to use electric motive power, mention- ing the other methods above indicated of using electricity without these auxiliary structures; and further takes occa- sion to define closely what a street railway should be, that is, that it should be strictly limited to such construction as will not interfere to any great extent with the use of the street by the public, both on foot or in teams, and intimates a tendency towards holding electric railroads to be an addi- tional use of the street for which it was not originally con- templated. It remains to be seen, therefore, whether the courts will not limit their former rulings in regard to over- head structures, and require express authority for the erec- tion of poles and the stringing of wires for this purpose in the public highways in addition to the general grant of the right to use electricity as the motive power. ^ § 184. Inferred Right to use Electricity. — When there has been no express authority given to a street railway company to use electricity as a motive power, the question arises whether it has sufiiciently broad powers either by its charter 1 State, Greene v. Trenton, 51 N. J. L. 92. Cf. State, Halsey p. Newark, 54 N. J. L. 102. 2 See also, ante, §§ 107-100. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 153 or by general laws, to use such a means of propulsion.^ An authorization to use horse or " other power " has been held to include the right to use electric motors. ^ Thus, fur instance, in a charter which granted a railway the right to operate its road "with steam, horse, or other power, as the councils of said cities and towns may from time to time direct," the court said, "It seems to me that the provision that the tracks or road shall be operated by ' steam, liorse, or other power, as the councils of said cities and towns may from time to time direct,' is broad enough to empower said councils not only to authorize the use of electricity as a motor, but also to authorize its use by means of any system of application which it ap])roves as suitable. " ^ § 185. Inferred Right to use Electric Motive Power (^co)i- tinued). — So in a case in Pennsylvania, the question was raised under a puljlic statute which gave passenger railways the right to use other than animal power in cities of the first class when authorized by the councils. Acting under this authority, a traction company began the construction of an electric railway.'* Several people living on the land abut- ting on the highway brought a bill in equity to restrain the traction company from the erection of poles and stringing of wires for the electric railway. The charter of the company did not give it the right to operate by electricity, but the Act of May 8, 1876, Public Laws, 147 (at which time the electric railway was not known), gave passenger railways the right to use other than animal power in cities of the ^ On interpretation, see ante, § 153. ■'' Taggart r. Newport Street Railway Co., 16 R. I. 668; Buckner v. Hart, 52 Fed. Rep. 835. ' Taggart v. Newport Street Raihyay Co., 16 R. I. 668. In another case it was held that where a grant was of any motive power or system of traction, this would include a right to use electricity as motive power, especially since at the time the grant was made, which was in 1890, the use of electricity for the propulsion of street railways was well-known. Green v. City & Suburban Railway Co., 28 Atl. Rep. 620. 4 Reeves v. riiiladelphia Traction Co., 152 Pa. St. 153. 154 THE LAW OP ELECTRICITY. first class, when authorized by the councils. The trial court issued a perpetual injunction restraining defendant company from constructing its electric railway. On appeal, however, the court held that the company had the right to build its elec- tric railway. The case also settled an objection to the con- stitutionality of the statute giving railway companies this power, /. e., that it was a special act altering, making, and relating to the charter of a private corporation, this being unconstitutional by the law of Pennsylvania. The court, however, says that a statute which applies to all individuals of a class is a general statute, and not a special one, and that a classification of cities is a kind of classification per- missible in statutes, and that a statute which applies to one of the powers of all cities of the first class is a general statute. 1 An authorization to use steam power does not, however, include a right to use electricity, though the latter is generated by the power of the steam-engine. ^ § 186. Grant of Right by Municipality only. — In a later Case in Pennsylvania a passenger railway company, incorporated with authority to use only horse power for the operation of its cars, procured from the municipal authorities of the city the right to use electricity as a motive power, and attempted to construct and operate such a railway. Abutters brought a bill in equity to enjoin the construction, and applied for a preliminary injunction on affidavits. The court refused the injunction on the ground that the question whether a passenger railway company, incorporated with authority to use only horse power for the traction of its cars, could be converted into an electric railway company by the action of the municipal authorities of the city in which the line of the company's road might be, was too serious a question to 1 To the same effect as to classification of cities is Toledo Consolidated Street Railway Co. v. Toledo Electric Street Railway Co., 6 Oh. Cir. Ct. Rep. 362. ^ Prospect Park & Couey I. Ry. Co. v. Coney Isl. & Brookl. Ry. Co. , 39 N. E. Rep. 17. GRANT OF FRANCHISE BY MUNICIPAL AUTHORITIES. 155 be (leciJt'd on motion. An appeal from this decision was confirmed for the same reason. ^ This case, therefore, does not decide definitely the question in that State. § 187. Right to use auy Motive Power. — If the statutes relating to the organization of street railway companies pro- vide simply that a corporation may be organized for the purpose of operating a street railway, and make no special mention of the motive power which is to be employed, the company may employ any motive power, including electricity. 2 1 Fritz V. Erie City Passenger Railway Co., 155 Pa. St. 472. 2 Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 390. 156 THE LAW OF ELECTRICITY. CHAPTER VII. ^ MUNICIPAL OWNERSHIP OF ELECTRIC LIGHTING PLANTS. § 188. Municipal Ownership. § 193. State Statutes. 189. Municipal Ownership, Massa- 194. Literjjretation of Massachusetts chusetcs Decisions. Statutes. 190. Municipal Ownership, Implied 195. Iowa, Michigan, Mississippi, Ne- Power of. braska. 191. Commercial Lighting by towns. 196. Ohio, Pennsylvania. 192. Purchase of existing Plant. 197. Constitutionality of these Acts. § 188, Municipal Ownership, — The question has been raised in several instances whether or not a city or other municipality has the right without express statutory author- ity to purchase or construct and operate an electric lighting- plant of its own for the purpose of lighting its puljlic streets and highways, and also of engaging in a general commercial lighting business. Many economical reasons exist, in fact, which render it desirable for the cities and towns so to do, rather than to hire the light from a private corporation. Decisions as to whether a city or town has such authority, and if so, to what extent, are not numerous at present, nor are they wholly uniform. On principle it would seem that such power should exist in the municipal authorities, at least so far as lighting the streets and public places is concerned. The power to light the streets and puljlic places is almost necessarily implied as one of the police powers of a muni- cipality, for well-lighted streets are among the most efficient preventives of crime and assistances in the discovery of criminals, as well as most necessary for convenience of public travel.^ The power to light the streets in some method has been almost uniformly recognized as existing in the municipal authorities from the earliest times. It is 1 Dillon, Mun. Corp. § 691. MUNICIPAL OWNERSHIP OF ELECTRIC LIGHTING PLANTS. l.J7 often enumerated or mentiuned among the general powers of municipalities in the statutes relating to such corporations, or in their charters, but its omission would not thereby deprive the city of the power, and electricity may be em- ployed as the means of lighting.^ While this power to provide light for the streets is generally recognized by the courts, yet there has been a difference of opinion as to whether this power draws after it as incidental, the power to construct or purchase the costly plant and apparatus necessary for the production of electric light when a suffi- cient quality and degree of lighting can be obtained by other less expensive means, and a great increase of taxation thus avoided. In some States, as will be seen, statutes regulate this matter. 2 § 189. Municipal Ownership, Massachusetts Decisions. — The question was brought up in ^lassachusetts in the year 1890. In this year a bill being before the legislature authorizing municipalities to purchase or construct electric lighting plants for furnishing light in the public streets and places, and to inhabitants for private use, the legislature requested the opinion of the Supreme Judicial Court upon the question whether the legislature might constitutionally pass such a law conferring on cities and towns the power to manufacture gas or electric light for use in the public streets, and for selling to inhabitants for private use. The Supreme Court answered both branches of this question in the affirmative, including also the power to levy a tax for the purpose of raising money to meet the expenditures necessary for these purposes. The court says that the furnishing of light for the streets and public buildings is a public service, and may in some cases be necessary for the full enjoyment of the public streets and places by the public, and is a means of 1 Crawfordsville r. Braden, 130 Ind. 149 ; Mauldiu t'. Greenville, 33 S. C. 1 ; State v. Hiawatha, 53 Kan. 477. •^ Post, §§ 193-196. 158 THE LAW OP ELECTRICITY. promoting order and affording protection to persons and prop- erty, as well as furthering the common convenience in using the streets; and that as to the supplying of light to the in- habitants for private use, it is a fact that artificial light of some kind is generally used by the inhabitants, and that gas and electricity are forms of artificial light very advantageous in their use for the inhabitants, but so costly that they can- not be commonly used unless they are supplied by private corporations or by the municipality, and therefore a statute giving the municipality the right to furnish such conven- iences to its inhabitants is constitutional in the same manner as statutes giving municipalities the power to furnish water, the right being based upon the advancement of the common convenience and welfare of the inhabitants.^ The court refused to say, however, whether the statutes of this State existing at that time gave to cities and towns the right to buy or construct their electric light plants for these purposes, but shortly after a test case was brought before the court. ^ In this case a petition was brought by some of the inhabi- tants of the town to restrain the town from investing in an elec- tric light plant and raising the money necessary therefor by taxation. The court held that the right to furnish electric light was not one of the customary rights possessed by towns by virtue of long usage, and must be found, if at all, in some statutory enactment relating to the rights of towns. The court reviewed the statutes bearing on this point, and found only a statute giving towns the right to erect and maintain street lamps, and to raise money for this purpose, and the court held that this power did not carry with it as incidental, the power to purchase or construct a costly electric lighting plant, and to raise the money necessary therefor by taxation, since other methods of lighting the streets were possible and more economical. The court 1 150 Ma?s. 592. 2 Spaulding v. Peabody, 153 Mass. 129. MUNICIPAL OWNERSHIP OF ELECTRIC LIGHTING PLANTS. 159 further showed that the courts had been strict in that State iu construing the powers of towns in order tu compel the legishiture to confer important powers by express statutes, in which case the powers could be regulated and limited as the needs of the case might demand; and that, in fact, the power in cities and towns to construct water-works Avas always conferred by statute, and similar important powers were similiarly guarded. This decision was made with a view to the passage of a statute by the legislature conferring the power in express terms ; and accordingly a statute was passed shortly afterwards which is noticed hereafter, and which granted these powers to the municipalities, and limited and defined the conditions under which the powers were to be exercised. § 190. Municipal Ownership, Implied Power of. — In other States, however, courts have held that the town may own and operate its electric lighting plant for the reason that the poW'Cr to light the streets and public places is a necessary power of municipalities for the preservation of peace and order; that it is one of the police powers which is always implied, if not expressed, in the charter powers; and that, the power itself being inherent in the municipalit}-, it is a matter of discretion as to what mode of lighting should be employed, and the city government has full power to choose that one which, under the circumstances, seems the most advantageous, both in efficiency and economy, and that the power to raise money for those purposes is a necessary inci- dent to the power itself. ^ Thus in a case in Indiana, the question was raised and settled without much discussion. The statutes in that State gave the common council of cities and board of trustees of towns the power to light the streets, alleys, and other public places with electric light, or other 1 Rnshville Gas Co. r. Rushville, 121 Ind. 212; Crawfordsville v. Rraden. 130 Ind. 149 ; State v. Hiawatha, 53 Kan. 477; Mauldia v. Green- ville, 33 S. C. 1. 160 THE LAW OF ELECTRICITY. form of light, and to contract with any individual or cor- poration for lighting such streets and public places, on such terms and for such time, not exceeding ten years, as might be agreed upon,^ or to provide for the erection and mainte- nance of poles and wires for this purpose ; ^ and still further, to authorize any person or corporation to erect and maintain in streets, etc., the necessary poles and appliances for the purpose of supplying electric or other light to the inhabi- tants.^ The court held that these provisions, in connection with the broad general powers given in the general corpora- tion acts relating to cities in that State in relation to the public welfare, left no question that the city had a right to buy and operate its own electric-light plant, and incidental to this, that the city might issue bonds to pay for the plant so purchased.^ This case was followed by another in the same State, in which the court further decided that the statutes above cited included the power to sell electricity to individuals and private corporations for private use, that is, to engage in a commercial lighting business. The court places the whole power, both as to public and private lighting, upon the police powers of the city, including the power to enact and enforce reasonable by-laws and ordinances for the protection of health, life, and property. The court ex- presses the principle on which the whole matter rests as follows : — " So far as lighting streets, alleys, and public places of a municipal corporation is concerned, we think that, indepen- dently of any statutory power, the municipal authorities have inherent power to provide for lighting them. If so, unless their discretion is controlled by some express statu- tory restriction, they may, in their discretion, provide that 1 Ell. Supp. § 794. Mb. § 795. 8 lb. § 796. 4 Kushville Gas Co. v. Rushville, 121 Ind. 212. MUNICIPAL OWNERSHIP OF ELECTRIC LIGHTING PLANTS. 101 form of light which is best suited to the wants and the financial condition of the corporation."^ The court further says that the municipal authorities thus possessing the power to light the streets, the power to furnish or })rocure electricity is carried with the principal power as an auxiliary. The court dissents from the reasoning of Spaulding v. Pcabody.^ In a recent case in Kansas the statute gave the common council of cities authority to provide for and regulate the lighting of streets and the erection of lamp-posts, and to make contracts with any person, company, or association for such i)urposes, and to give such person, company, or associa- tion the privilege of furnishing light for the streets, lanes, and alleys of the city for any length of time not exceeding twenty-one years. The court discussed the question of what construction should be placed upon powers thus conferred by statute, and held that to say that it only allowed the city to contract with other parties for the lighting, is too strict and narrow a construction ; that it should be a fair and rea- sonable construction, and the word "provide," as used in the statute, fairly includes purchasing as well as contracting for. In this case the city was intending to use its lighting plant only for public lighting. ^ In a somewhat recent case the point was expressly decided that a city had this implied right, even though there was no ^ And a taxpayer cannot restrain the introduction of electric liglit merely because the contract therefor is a poor one for the city or the price excessive, in the absence of fraud. Talcott v. Buffalo, 125 N". Y. 280. 2 Crawfordsville v. Braden, 130 lud. 149. A municipality which has the power to acquire and operate its own electric lighting plant, may con- tract for necessary labor for this purpose without special authoritj'. For instance, may employ linemen to construct and repair the lines. Rocke- brandt v. Madison, 36 N. E. Rep. 4 U. 8 State u. Hiawatha. 53 Kan. 477. The court cites the cases of Craw- fordsville V. Braden. 130 Ind. 149; Hamilton Gas Light & Coke Co. r. Hamilton, 37 Fvd. Rep. S32 ; s. c. 1 JG U. S. 258 ; State v. Hamilton, 47 Oh. St. 52, and Ketchum v. Buffalo, 14 N. Y. 356. 11 162 THE LAW OP ELECTRICITY. express statutory authority given it to light the streets. The only statutory authority given to the municipality in this case was to own property. The court, however, held that the municipality had an implied right to light the streets and public places as one of the necessities of corporate existence, and that this implied power to light the streets carried with it an implied power to purchase such apparatus as might be necessary for furnishing the most satisfactory light. The court, however, held that in this case the city had no right to furnish such light to the inhabitants for commercial lighting, as this was engaging in a commercial business which the city was not authorized to do. ^ § 101. Commercial Lighting by Towns. — Whether in the absence of statutory authority a municipal corporation which has an electric lighting plant for the purpose of lighting public streets and places, can furnish electricity for the inhabitants for private lighting, does not seem to be fully settled. In the case referred to in the preceding section, ^ it was held that the city could not engage in a commercial lighting business. In this case the court was obliged to imply the power to do the public street lighting, as no statutory provision existed giving the city even the authority to do this. In cases where the statutes expressly authorize cities to erect electric lighting plants without distinction as to the use to which they should be put, it has been held that the city, having such a plant in existence, might supply both public and private demands.'^ The analogy of water and gas works is very close, and probably in all cases where the city is authorized by statute to construct and maintain and operate an electric lighting plant, it would be held authorized 1 Mauldin v. Greenville, 33 S. C. 1. 5- Ibid. 8 Thompson-Houston Electric Co. v. Newton, 42 Fed. Rep. 723; Craw- fordsville v. Braden, 130 Ind. 149. MUNICIPAL OWNERSHIP OF ELECTRIC LIGHTING PLANTS. 163 to supply both public and private demands.^ But where the power to purchase the electric lighting plant is merely implied from the power of a municipality to light the streets, the courts would not allow it to extend this implied power further than the strict limits of municipal use.^ § 192. Purchase of existing Plant. — It is evident that if a municipality within whose limits a private corporation is already maintaining and operating an electric lighting j^lant, determines to obtain and operate an electric lighting plant of its own for furnishing light on the public highways, and to the citizens, a damage is done to the business of the existing private corporation. It is, however, a damage with- out an injury, that is, a damage for which nu legal redress can be had unless there is something in the charter or fran- chises or lighting contracts which the private corporation has which renders such action of the municipality a breach of contract. For instance, if an electric lighting company exists in a town, and has been granted by the town certain rights to set its poles and string its wires over the streets, yet if this right is not exclusive in terms, the city violates no con- tract or duty towards the electric lighting company bv pur- chasing its own electric lighting plant and engaging in the electric lighting business. ^ To avoid, however, the prac- tical injustice of such a course, the statutes which authorize municipalities to engage in the electric lighting business generally provide in some way or other for the purchase by the municipality of any existing electric light plant at prices fixed by commissioners in case of disagreement.* § 193. State statutes. — In Connecticut. Iowa, Massachu- setts, Michigan, Mississipj)!, Nebraska, Ohio, and Pennsvl- vania statutes have been passed regulating the subject of the ^ Thonipson-Hou.ston Elcc. Co. v. Newton, supra; Crawfordsville v Braden, supra. * Manldin v. Greenville, supra. * Thompson-Houston Electric Co. v. Xewton, 42 Fed. Rep. 723. * See statutes, injra. 164 THE LAW OF ELECTRICITY. acquisition and operation of electric light plants by munici- palities. A most carefully drawn act is that -which is enacted in Massachusetts and substantially in Connecticut, and an abstract of which is given below in the note.^ § 194. Interpretation of Massachusetts Statute. — Under the Massachusetts statute it has been decided that a vote duly adopted by a city or town, that it is expedient to exercise the authority conferred by the statute, is a sufficient vote under the statute, and need not be in express terms a vote to establish an electric plant in the town.^ Furthermore, that if it is shown that some of the poles of the existing electric light plant are placed in the street without proper license from the municipal authorities, still this does not prevent the electric light company from requiring the town to purchase its plant, for the poles in question may be left out of the property purchased ; and further, that a filing of the schedule, as required by law, having been made by authority of the directors of the company wathin the time limited, and approved by the stockholders after the expira- 1 Mass. Acts 1891, c. 370; Acts of 1893, c. 454, Acts 1892, c. 259; Conn. Stats. 1893, c. 231. An abstract of the original act as passed in Massachusetts and its amendments, is as follows. Act 1891, c. 370, § 1. Authority to establish and maintain an electric light plant. § 2. The votes necessary therefor in cities. § 3. The votes necessary in towns. § 4. Authorizine bonds to pay for plant. § 5. Enlargement of plant. § 6. Assessment for cost. § 7. Supjily to customers. § 8. Appointment of manager of electric light. § 9. Accounts of his plant. § 10. Prices. § 11. Ordinances regulating operation. § 12. (amended by Act 1893. c. 454, § 5.) Purchase of existing plant. § 13. Same. § 14. Appeal to court. §15. Determination of corporate franchises. §10. Liability for accidents. § 17. Application of General Laws. § IS. Pievocation of existing fran- chises. Act 1893, c. 454. § 1. Poles and lines in adjoining town. § 2. Supply of electricity to adjoining town. § 3. Action of company desiring to sell. § 4. Action of city as to adjoining town. § 6. Franchise to continue. § 7. Votes necessary in city. § 8. Purchase of electricity from town. § 9. Issuing notes or scrip. § 10. Institution of nmnicipal light loans. See also. Acts 1894, cc. 182, 432, 448, .533. 2 Hudson Electric Liupra. 232 THE LAW OF ELECTRICITY. four hours before the time so stated, and if such company has no office in the same town, he shall send such statement to its officer nearest to the place named therein, by putting it in the post-office properly directed and stamped three days before the time stated therein.^ § 261. Maine Statute, Moving Buildings. — In this State the statute is that whoever desires to cut, disconnect, or remove the wires or poles of a telephone or electric light company in order to move a building, alter, repair, or improve a street, bridge, or way, or for any other necessary purpose, shall leave a written statement of the time when and the place where such removal is desired, at its office if it has any in that town; and if it has not, he shall send it by mail to its nearest office three days before such time; upon the expira- tion of which time, if such removal is not made by the com- pany, such person may make the removal, and recover the cost thereof in an action of debt.^ § 262. Massachusetts Statute, cutting Wire for moving Building. — By statute in this State, whoever in order to move a building, or for any necessary purpose, desires to cut, disconnect, or remove the wires of any such telegraph company, may do so, exercising reasonable care, if he has first left a written statement signed by him, of the time when and the place, described by reference to the crossings of streets or highways, where he wishes to remove said wires, at the office of the company in the town where such place is situated, twenty-four hours before the time so stated ; or when there Is no such office, if he has deposited such state- ment in the post-office, properly prepaid and directed to the company at its office nearest to said place, three days before the time mentioned in said statement. ^ Whoever wilfully cuts, disconnects, removes, or otherwise interrupts the use of any telegraph wire without first giving notice as provided 1 Gen. Stat. § 3949. « Acts 1885, c. 378, § 4. » Mass. Pub. Stat. c. 109, § 17. CONSTRUCTION AND MAINTENANCE OF LINES. 233 in the proceding section, shall be punished Ijy fine not exceeding five hundred dollars, or imprisonment not exceed- ing two years, or both said penalties.^ The two preceding sections do not apply to any wires attached to telegraph poles which have not been erected in compliance with the provisions of the law.^ § 2G3. New Hampshire Statute, disconnecting Wires. — In this State the statute provides that whenever it shall be necessary to disconnect the wires of any telegraph, tele- phone, or electric light line, or remove their supports temporarily for any lawful purpose, the person having such occasion may do so without i)roducing unnecessary damage, if he shall have first left a written statement, signed by him, of the time when and the place where he wishes to make such disconnection, at any office of the proprietors in the town where such place is situate, twenty -four hours before the time so stated ; or when there is no such office, if he shall have deposited the statement in the post-office, di- rected to the proprietors at their main office, three days before the time meiitioned in the statement.'^ Any person who shall disconnect any such wires, or remove their supports without first giving notice, as provided in the preceding section, shall be fined not exceeding one hundred dollars for each offence.* § 264, New Hampshire, Liability for Injuries. — The pro- prietors of any line of wires strung in a highway shall indemnify the town against all damages, costs, and expenses to which it may be subjected by reason of any insufficiency or defect in the highway occasioned by the presence of the wires and their supports therein; and they shall also be responsible directly to any party receiving injury in his person or estate from the wires or their supports, or from the use thereof by the proprietors.^ 1 Mass. Pub. Stat. c. 109, § 18. « lb. § 19. » Pub. Stat. c. 81, § 14. * lb. § 15. 6 Pub. Stat. N. H. c. 81, § 16. 234 THE LAW OF ELECTRICITY. § 265. Wiscousin Statutes, moving Buildings. — 111 this State any person having the right so to do, who shall remove or change any building or other structure, or any timber stand- ing or fallen, to which any telegraph or telephone lines are in any way attached, or cause the same to be done, which shall destroy, disturb, or injure the wires, poles, or other property of any telegraph or telephone company transacting business in this State, without first giving to such company, at its office nearest td such place of injury, at least twenty- four hours' previous notice thereof, shall be punished by imprisonment in the county jail not more than thirty days, or by fine not exceeding fifty dollars.^ 1 San. & Berr. Ann. Stat. § 4559. Note. — Statutes imposing penalties for injuring wires. Owing to the impossibility of keeping electric lines constantly under the supervision of the companies owning them, and in view of the great importance of keep- ing tlie lines in operating order, in most States statutes have been enacted which inflict a penalty of either fine or imprisonment or both upon persons who wilfully injure, destroy, or interfere with the lines, including the wires and their supports and the instruments. Such statutes are generally limited, however, to telegraph lines, which would include telephone lines as being a species of telegraph, even where the telephone is not expressly mentioned, as it is in many States. In a few States tlie provisions of these statutes are extended to electric light and railway wires. As the statutes are substantially the same in their main provisions, it is deemed unnecessary to give them at length. The three important elements are, first, a malicious intent, second, damage to the telegraph line or some portion of it, and third, a penalty therefor. As the first two elements are the same in all statutes, it will be sufficient to give the variations of the tliird. namely, the penalty. The penalties are as follows. In Arkansas (including telephones). Acts 1885, Act (5i; Act 107, § 9, fine not less than 8200, imprisonment not more than one year, and double damages for the owner of the line for the injury to the line. California, damages to owner for negligent injury and hundredfold damages for malicious injury, and also penalty for the latter as for a misdemeanor. Civ. Code, §§ 537, 5.38; Pen. Code, § .^91. Colorado, fine not exceeding $500; im- prisonment not exceeding one year, or both, and all damages. Mill's Ann. Stat. § 574. Connecticut (including telephone, electric light and power), fine not more than S200, imprisonment not more than one year, or both. Gen. Stats. § 1477. Delaware, penalty to the company or any one suing for it, $25 for first offence ; for every subsequent offence CONSTRUCTION AND MAINTENANCE OF LINES. 235 Rev. Code, p. 9:38, ch. 128, § 19. In this State there is a special statute relating to electric lamps and electric light wires and poles, imposing fine of not less than 81U, nor more than $100, one half to go to the informer and one lialf to the State. Ivev. Code, p. 947 ; Laws of Del. vol. 18, ch. tJ88. Florida, fine not exceeding SlOO, or imprisonment not exceeding twelve months. Kev. Stat. § 2537. Georgia, puni.slinicnt as for a mi.sdemeanor. Code, § 44;J9. Illinois, fine not exceeding S500, or imprisonment not ex- ceeding one year, or both. Ann. Stat., ch. 38, par. 249 ; ch. 134, par. 5; Amended Stats. 1891, p. 205. Indiana (including telephone), fine not more than S500, nor less than $5, and imprisonment not more than six months nor less than thirty days. Ann. Stat. § 2035. Iowa, imprisonment not more tlian five years or fine not exceeding S500, and imprisonment not exceeding one year. Ann. Code, § 5287. Kansas, fine not exceeding §500, or imprisonment not exceeding one year, or both. Gen. Stats. § 1388. Kentucky, imprisonment not less than two nor more than ten years, Gen. Stat. p. 431, § 9; telephones, fine not less than §10 nor more than llOO. Acts 1889, ch. 25. Maine (including telephone and electric light), im[irisonnient not more than three years, or fine not exceeding S300. Acts 1885, ch. 37'">, § 10. Maryland (including telephone), fine not exceeding §500, or imprisonment not exceeding one year, or both. Pub. Gen. Laws, Art. 23, § 229 ; Art. 27, § 251. Massachusetts, fine not exceeding $500, or imprisonment not exceeding two years, or both. Pub. Stat. ch. 27, § 4G; ch. 109, § IG. Michigan, knowingly or wilfully, fine not exceeding SlOOO, or imprisonment not exceeding one year, or both, How. Ann. Stat. § 3000; unlawfully or intentionally, fine not exceeding $500, or imprisonment not exceeding one year, or both, lb. § 3099; injuring telephones, fine not ex- ceeding $100, or imprisonment not exceeding \hvve months, or both. lb. .Suppl. §37l8f. Minnesota, punishment as for a misdemeanor. G. S. 1894, § 6780. Mississippi, fine not exceeding 8500, or imprisonment in county jail not exceeding six months, or both. Aim. Code, § 1300. Missouri (in- cluding telephone), fine not exceeding S500, or imprisortment not exceeding one year, or both. Rev. Stat. § 2731. Nevada, fine not exceeding §.500, or imprisonment not exceeding six months, or both, and liability to the tele- graph company in hundredfold the actual damages, and also liability to a civil suit. Gen. Stats. §§ 929, 930. New Hampshire, fine not exceeding SlOO. Pub. Stats, ch. 81, § 15. New Jersey, imprisonment at hard labor not exceeding two years, or fine not exceeding S2nO, or both. Rev., p. 217, § 115. Also penalty to the company, for the first offence 8100, and all damages, and for the second offence, impri.sonraent not exceeding one year. Kev., p. 1175, § 7. New York, imprisonment not more than two years. Penal Code, § 639. North Carolina (including telephones), fine and imprisonment at the discretion of tlie court. Code, § 1118. Ohio (including telephones, electric light and electric railway.s), fine not more than 81000, nor less than 8200, or imprisonment for not less than one nor more than three years, or both. Rev. Stats. § 3467 a ; Laws 1893, p. 346, § 1. Oregon, 236 THE LAW OP ELECTRICITY, fine not exceeding §500, or imprisonment not exceeding six months, or both, and liability to the company in hundredfold the actual damages. Hill Ann. Laws, § 2001. Pennsylvania, tine not exceedhig igoOO, and im- prisonment not exceeding twelve mouths, or both or either. Bright. Purd. Dig., l'2th ed, Crimes, p. 521, par. 289. Khode Island, imprisonment not exceeding six months or fine not exceeding !?500. Pub. Stats, ch. 242, § 30. South Carolina (including telephone and electric ligiit), fine not ex- ceeding §100, or imprisonment not exceeding thirty days, or both. Geu. Stats. § 2524. Tennessee, punished as for a misdemeanor. Code, § 1544; (including telephones), fine not less than S5, nor more than §50, and im- prisonment at the discretion of the court. Shannon's Code Suppl., p. 135, § 9; p. lo6, §§ 1-3. Texas, imprisonment nut less than two months nor more than five years, or fine not less than §100, nor more than $2000. Crim. Code, § 677. Vermont, forfeit of §100 to the owner of the line, and also fine and imprisonment as in other cases of malicious acts. Rev. Laws, § 3641. Under the Vermont statute, when an action is brought against a person for injury to the telegraph line, it has been held that it is necessary to show that the telegraiah line injured is such an one as comes within the description of the statute, but proof that it is the line of an incorporated company, and that it is so placed as not to incommode public travel along the highway, is sufiicient under this statute. Western Union Telegraph Co. V. BuUard, 65 Vt. 634. Washington (including telephones), through negligence, liability to the company for all damages; maliciously, liable to the company for five times the damages, and liability to civil suit. Hill's Stats. & Codes, §§ 1562, 1568; Penaf Code, §§ 292-298. West Vir- ginia, imprisonment not exceeding twelve months, and fine not exceeding S500, and liability to the owner for all damages. Code, ch. 145, -§ 26 a. Wisconsin (including telephones), imprisonment not more than thi'ee months or a fine not exceeding $100. Code, § 4559. LIABILITY TO EMPLOYEES, 237 CHAPTER X. LIABILITY OF ELECTRIC COMPANY TO EMPLOYEES FOR DEFEC- TIVE CONSTRUCTION AND MAINTENANCE. § 266. Liability of Company to Em- § 269. Latent Defects. plovee, Assumption of Risk. 270. Delegation of Repairs. 267. Duty of providing Suitable Tools 271. Special Orders of Employer. and riaces to work. 272. Contributory Negligence. 268. Question of Negligence. § 2GG. Liability of Company to Employee, Assumption of Risk. — As to the liability of an electric company to its employees for defective construction and maintenance, the leading rule is, as in other branches of the law of master and servant, that the employee in entering the business, accepts all the obvious, incidental, and natural risks thereof, and the company is not liable for injuries resulting to him therefrom.^ ■ Thus in a case where the plaintiff, a lineman in the service of the defendant company, was called upon to ascend one of the poles of the company for the purpose of trimming a lamp at its top, and one of the steps used for climbing the pole was broken ofT, and the plaintiff, before attempting to go up the pole, saw this defect and ascended in safety, but in descending his foot slipped when he reached the broken step, causing him to fall from the pole, by reason of which his leg was injured, it was held that the defect which caused the accident was an open and obvious risk, and ^ Foley V. Jersey City Electric Light Co., 54 N. J. L 411; Flood v. "Western Union Telegraph Co., lol X. Y 603; Junior i-. Missouri Electric Light & Tower Co., 29 S. W. Rep. 9S8; Southwestern Telegraph & Tele- phone Co. V. Woughter, 56 Ark. 206; Essex County Electric Co. v. Kelly, 20 Ail. Rep. 427 (N. J.) ; Byron v. New York St. Printing Telegraph Co., 26 Barb. 39; Clairain v. Western Union Telegraph Co., 40 La. An. 178. On the general subject of negligence, compare supra, §§ 235 et seq. 238 THE LAW OF ELECTRICITY. that the plaintiff could not recover. ^ The employee does not, however, assume risks which are greater than those ordinarily incident to the business or such as are not the natural risks of the business, and the company must take reasonable care and precaution not to expose him to such o-reater or non-natural risks. 2 Neither docs the employee assume such risks as are latent and cannot be discovered on inspection, but are known to the employer and not communicated by it to the employee. In such a case the employing company is liable. ^ Even as to patent and ob- vious dangers, the employing company may be liable if the employee from youth or ignorance is incapable of appre- ciating them without explanation and warning. In such a case it is the duty of the employer to give such instruc- tions and explanations, as, having in view the mental capacity of the employee, are sufficient to warn him of the risks and dangers.* § 267. Duty of providing Suitable Tools and Places to work." Moreover the employer must use reasonable care in pro- viding suitable tools and appliances with which the employee is to work, and to use reasonable care in seeing that the places in which he is to work are reasonably safe for the employee to work in.^ But if the employee, knowing of defects in the tools or places, continues to work in them, the company is not liable.^ In a recent case in Massachusetts the question as to the 1 Foley V. Jersey City Electric Light Co., 54 N. J. L. 412. Cf. Junior V. Missouri Electric Light & Power Co., 29 S. W. Rep. 988. 2 Essex County Electric Co. v. Kelly, 29 Atl. Rep. 427 (N. J.). 8 Southwestern Telegraph & Telephone Co. v. Woughter, 56 Ark. 206. Essex County Electric Co. v. Kelly, stipra. Cf. infra, § 269. * Southwestern Telegraph & Telephone Co. v. Woughter, supra. 6 Essex County Electric Co. v. Kelly, 29 Atl. Rep. 428; Floods. West- ern Union Tele-raph Co., 131 N.Y. 603; Carroll v. Western Union Tele- graph Co., 160 Mass. 152; Southwestern Telegraph & Telephone Co. v. Woughter, supra. 6 Junior v. Missouri Electric Light & Power Co., 29 S. W. Rep. 988. LIABILITY TO EMPLOYEES. 239 liability of an electric company for injuries to an employee caused by the falling of a telegraph i)ole was considered. ^ In this case a party of employees of the telegraph company were engaged in setting poles in the street. As the poles were long and heavy, the workmen had, for the purpose of raising them and putting them into the holes, what was called a "deadman," which consisted of a long pole with a half moon at the end of it extending its concave surface towards the pole, the pole resting against this half moon. The workmen pushed against the other end of the deadman, and thus raised the pole into a standing position and set it into the hole. While trying to raise one of the poles the deadman broke, and one of the laborers in the party, at the order of the foreman, attempted to use his shovel, a long- handled one, as a substitute. The shovel presented a convex surface to the pole, which, as it was being raised, slipped from the point of the shovel and fell, injuring the plaintiff. The plaintiff claimed to recover damages on the ground that the company did not supply proper tools and appliances for the work. The court, however, refused to sustain this claim, saying that there was no evidence that another dead- man was not in the company's depot of tools at a convenient distance, and might have been procured to replace the one which broke. § 2G8. Question of Negligence. — xVs to tools, appliances, and places to work, the liability of the employer to the employee for injury received by the latter is wholly a ques- tion of negligence, both as to the original selection, and as to keeping in proper repair. ^ In the case of electric poles and wires, if the poles, cross-arms, and wires were selected with reasonable care, and are inspected from time to time, with reasonable care, and kept reasonably well repaired, the employer is not liable to the employee for injury resulting 1 Carroll v. Western Union Telegraph Co., 160 Mass. 152. 2 Lee c. Electric Light, Heat & Power Co., 140 Pa. St. 618. 240 THE LAW OF ELECTRICITY. from iDreaking or other accidents. ^ In a case in New Yorkj^ it appeared that the person for whose death the action was brought was a lineman of the Western Union Telegraph Com- pany. He, while mending the lines, and for this purpose, and in the course of his employment, climbed a telegraph pole and sat on one of the cross-arms. The cross-arm broke, and he fell and was killed. In the general term of the Supreme Court a verdict was given for the plaintiff on the ground that there was negligence of the company, but the Court of Appeals reversed this decision. In this case it appeared that the arm was of the usual size and strength, and had been in use six years, and that there was no defect in it which was discernible by ordinary inspection,, and that the inspection of poles actually given by the company was all that could reasonably be given, and further, that the rules of the com- pany did not require inspectors to climb up the pole and inspect the cross-arms, and that the lineman in question knew that this was the rule of the company, as he had been employed by the company as inspector. It was held, there- fore, that the company had used reasonable care in regard to the pole and cross-arms, and that the accident was caused by the rashness of the plaintiff. In another case the accident was caused by poor wires used by the telegraph company. The facts in the case were as follows : The plaintiff's intestate, who was in the employ of the telegraph company, went up a pole to string wires on the cross-arms. In order to reach the extreme end of the cross- arm for the purpose of stringing the wire on it, he was obliged to stick his climbing iron into the pole as a support for his foot, and then lean out to the end of the cross-arm and fasten the wire to the glass insulator with nippers. 1 Essex County Electric Co. v. Kelly, 29 Atl. Rep. 428; Flood v. West- ern Union Telegraph Co., 131 N. Y. 603; Clairaiu v. Western Union Tele- graph Co., 40 La. An. 178. 2 Flood V. Western Union Telegraph Co., 131 N. Y. G03. LIABILITY TO EMPLOYEES. 241 The wire was stretched by a party several hundred feet ahead of him, and owing to the strain }tiit upon the wire, and its poor (quality, being full of kinks and flaws, it broke. The shock of the breaking broke the cross-arm, and the line- man fell to the ground and was killed. The court held that as the accident was caused by the poor ([uality of the wire, it not being a patent defect, the plaintiff's intestate could recover damages.^ § 2G9. Latent Defects. — In order to render the employer liable for latent defects in the poles or cross-arras, causing breakage, it must be shown that he knew of such defects, or might have known them by the exercise of reasonable care, and did not inform the employee of thcm.^ If due inspection would not disclose the defects the employer is not liable.^ In a recent case in New Jersey an electric light pole fell while one of the linemen was on one of the cross-bars, and inflicted injuries upon him. The facts were that the pole had been in use two years to support electric light wires, and was to be changed by the company to another location. The lineman in question went up the pole and cut off the wires, and after he came down the pole fell, partially detach- ing a cross-bar and otherwise injuring the pole. It then was carried to the new location, and after being examined by the linemen it was set up in place, and he climbed up again to string the wires on it, and used for this purpose what is called a strap and vise, by which the wires are strained into position to keep them taut. As he applied this strain to the wire in question, the pole fell carrying him with it, and 1 Clairain v. Western Union Telegraph Co., 40 La. An. 178.,, As to the question of whether it is necessary to use the latest appliances, see Lori- mer v. St. Paul City Ily. Co., 48 .Minn. 3!)1. 2 Essex County Electric Co. v. Kelly, 29 Atl. Rep. 428; Southwestern Telegraph & Telephone Co. v. Woucrhter, 56 Ark. 206 ; Deane v. Roaring Forks Electric Light & Power Co., 39 Pac. Rep. 346. 8 Essex County Electric Co. v. Kelly, supra ; Flood v. "Western Union Telegraph Co., 131 X. Y. G03. 16 242 THE LAW OF ELECTRICITY. inllictiiig injuries. The cause of the fall was either a defect in the core or an injury received in the previous fall. The court discussed at some length the duty of the master to his servant in regard to furnishing sufficient poles in case of electric companies, and lays down certain propositions as applicable to the subject. " The master must take reason- able care to have the tools and appliances with which, and the places on and about which the servant is to be employed reasonably safe for the work he, the latter, is employed to do. . . . The company did not guarantee the safety of the pole. ... Its duty is satisfied if it has taken reasonable care to provide a pole of sufficient strength to bear the strain of the wires, and the weight of the servant employed thereon to do what is required to fit them for the service of the company. . . . The master is not responsible for defects in the pole which the closest examination would not disclose. . . . The company must also take reasonable care to preserve the pole in fit condition, and for this purpose to reasonably examine whether or not it becomes unfit and unsafe from wear and tear or otherwise; and in New Jersey this duty of keeping the appliances in repair may be discharged by selecting and employing competent persons to make inspection and repairs." ^ The court in this case held that the plaintiff could not recover because the defect in the pole was either a decay in the core, which no inspection by the company's servants could have discovered, or the weakness was caused by the previous fall, which the plaintiff saw and knew as much about as the company. § 270. Delegation of Repairs. — It is held in some States that the employer may escape liability for lack of repair if he delegates the duty of attending to the repairs to skilful agents or superintendents, selected with due carc.^ 1 Essex County Electric Co. v. Kelly, 29 Atl. Rep. 427. 2 Ibid. LIABILITY TO EMPLOYEES. 243 § 271. Special Orders of Employer. — Wheil the cmijloyillg company is present at the work by some superintendent or oflicer wiiose orders the employee is l)Ound to obey, and takes direct charj^e of the work, giving special orders as to the manner of performing it, the employer is liable if the employee obeying these orders is injured, if the defect or risk causing the injury was not so open or apparent that a reasonably prudent man would refuse to obey the order even at the risk of losing his employment by so refusing. ^ But even in such case the employer is not liable if there has been no negligence on his part, and the accident was caused by a defect not discernible by reasonable inspec- tion. ^ Thus, in one case, the pole in question was, to all outward appearances, safe, but was, in fact, defective and unsafe. The defendant company's manager employed the plaintiff in changing poles along the line, and personally supervised their removal, in the course of which he ordered the plaintiff to climb the pole in question, and detach the wires as quickly as he could. Both examined the pole and decided it was safe. The plaintiff then climbed the pole, and as soon as the wires were cut the pole fell. The Court held that as the defect was not obvious there was no con- tributory negligence of the plaintiff, and that the question whether the defendant was negligent or not depended upon whether it had used the means which a prudent man would or ought to use, to discover defects in the pole, and had failed to make known to the plaintiff the defects and probable risk, this question being for the jury.^ § 272. Contributory Negligence. — In cascs where the negli- gence of the employer is involved, the negligence of the 1 Southwestern Telegraph & Telephone Co. v. Woughter. 56 Ark. 206. Cf. Carroll i'. Western Union Telegraph Co., IGO Mass. 152. 2 Southwestern Telegraph & Telephone Co. v. Woughter, supra. 8 Southwestern Telegraph & Telephone Co. v. Woughter, 56 Ark. 206. 244 THE LAW OF ELECTRICITY. employee may be also involved, and his recovery may be defeated by showing such lack of care as contributes directly and proximately to the action. ^ But even though the employee may be in the exercise of due care and the employer may be negligent, it does not follow that the employee can recover, for the injury may have been caused by one of the obvious incidental risks of the employment assumed by the employee.^ 1 Flood V. Western Union Telegraph Co., 131 N. Y. 603; Essex County Electric Co. v. Kelly, 29 Atl, Rep. 42« ; Lee v. Electric Light, Heat, & Power Co., 140 Pa. St. 618. 2 Foley V. Jersey City Electric Light Co., 54 N. J. L. 414. Cf. supra, §266. SUBMARINE TELEGRAPH LINES. 245 CHAPTER XI. SUBMARINE TELEGRAPH LINES. § 273. Submarine Telegraph Lines. § 274. Submarine Telegraph. Fouling ^Vnchor. English Kule. § 273. Submarine Telegraph Lines. Construction and Main- tenance. — The subservience of the telegraph in the United States to purposes of travel on the highways is by statute extended to navigation on navigable waters, and lines, if laid under such waters, must be laid and also maintained so as not to obstruct navigation; and the happening of an accident to a vessel caused by the lines is prima facie proof that they were not so laid and maintained. ^ And if the line is properly laid on the bottom of the stream, but afterwards rises so as to become an obstruction to navigation, the tele- graph company is liable for damages to vessels injured there- by. ^ Thus in a case in New York ^ the cable was laid across the Hudson River, a public navigable stream, close by and underneath a drawbridge. A steam tug passing through the bridge fouled the cable and brought suit for the damage. The court held that the telegraph company was responsible ; that it must, under its legislative franchise, lay and maintain its lines so as not to injuriously interfere with navigation; that the fact of the injury was proof that the navigation was obstructed ; the fact that other vessels had felt the cables in 1 Western Union Teleo^raph Co. i-. Inman & I. S. S. Co., 59 Fed. Rep. 365; City of Richmond, The, 43 Fed. Rep. So; Stephens &Condit Trans- portation Co. I'. Western Union Telegraph Co., S Ben. 502; Blanchard V. Western Union Telegraph Co., 60 N. Y. 510; Cf. supra, §§ 3S-5S and 61. ^ Cases supra, note 1. 8 Blanchard v. Western Union Telegraph Co., 60 X. Y. 510. 246 THE LAW OF ELECTRICITY. passing did not make it necessary for navigators to adapt their vessels to this exigency, though if the boat, knowing of the danger, had wilfully run on the cable, the case might have been different. In a later case the principle was again asserted that the telegraph occupies navigable streams in subordination to navigation. The facts were these : The Inman S. S. Co. had a dock and pier in Hoboken, N. J., at which their steam- ships were accustomed to load and unload. The approach to the pier directly in front of it was obstructed by a mud bank and was comparatively shallow. The approach to the docks on either side was deep, and the steamships usually ran into the docks alongside the pier. The Western Union Telegraph Co. had laid submarine cables from New York to Hoboken, which came into the Hoboken shore just in front of this pier in the comparatively shallow water. This was done without the consent of the owners of the pier, but they had knowl- edge of the fact that the cables were there. On one occasion a steamer of the Inman line, approaching the pier, found that another steamer of the same line was lying on one side of it, and the dock on the other side was filled with lighters. It therefore ran along the end of the pier and discharged its passengers. As the tide fell, it became partially aground, and wishing to back out before the vessel was strained by lying on the uneven bottom, two tugs were employed with hawsers endeavoring to pull the stern of the vessel round out into the stream. These hawsers broke, and the vessel then en- deavored to back out by reversing its own screw. At the same time, the tugs got out new hawsers at the side and attempted to swing the stern round towards the stream. In this way the vessel backed out, pulling itself over the mud bank and into water where it floated. In the course of so doing, the second mate, who was on the stern, observed an old pile to come up to the surface of the water, and thinking that it might have been pulled up by the screw and have injured it, SUBMARINE TELEGRAPH LINES. 247 on the next day an examination was made, and several portions of the cables of the telegraph company were found wound around the screw, for which injury the telegraph com{)any brought a libel against the steamship company, and the steamship company brought a cross libel for injury to the screw. The court asserted again the paramount claim of navigation over the telegraphic lines, and held that the vessel in question was, in fact, being navigated, since it was backing out from the wharf under its own power, and that the franchise which the telegraph company had to lay its cables expressly provided that they should not interfere with navigation, and therefore that the steamship company was not liable for damages to the cable, but the telegraph company was liable for damages to the steamship.^ § 274. Submarine Telegraph. Fouling Anchor. English Rule. — A different rule prevails in England, however, where the telegraph is not by statute put in a subservient position to navigation. It is there held that if a vessel's anchor fouls a subaqueous telegraph line, both parties being in the exercise of their proper rights, the whole matter is a question of negligence only; that if the vessel injures the cable by its negligence, the telegraph company may have damages there- for. Thus in one case the essential facts were that the tele- graph company had, under due authority, laid its submarine cable. The defendant's vessel anchored near it, and the anchor fouling the cable, the cable broke when the anchor was weighed. The case came up on demurrer to the plead- ings, and the court examined all the pleadings and held that it was a mere question of negligence ; that the telegraph company had an unquestionaljle right to lay its cable where it did, and the vessel had an unquestionable right to anchor where it did, and the only question was whether the vessel 1 Western Union Telegraph Co. v. Inman & T. S. S. Co., 59 Fed. Rep. 365; afBrmiiig same case, sub nom. The City of Richmond, 43 Fed. Rep. 85. 248 THE LAW OF ELECTRICITY. anchored negligently; that is, whether or not the captain knew or ought to have known that there was a cable in that vicinity, there being no marks or buoys to distinguish it, and this question of negligence was for the jury.i The Eng- lish Court of Admiralty further considered the question of injury to subaqueous cables in a later case,^ and held that if the cable is lawfully in place, and the vessel lawfully anchors in a place where the anchor becomes entangled with the cable, it is the duty of the crew on weighing the anchor to disentan- gle the cable, if possible, without injury to it, and they must aj)ply ordinary skill and take all the time necessary for this, unless the vessel is thereby put into imminent danger, in which case the cable may be cut; and that as the cable in that case was cut before due effort to disentangle it had been made, the vessel was responsible for the damages.^ 1 Submarine Telegraphic Co. v. Dickson, 15 C B. (N. S.) 759. In a case decided in the Federal Court of the United States in Georgia, a vessel, manned and sailed by Portuguese, entered an inlet across which a submarine cable had been laid, and which was marked on each shore of the inlet by a large sign saying, " Cable. Don't anchor." It did not appear in evidence whether the Portuguese could read English or not; but as a fact, the vessel anchored immediately over the cable, and when the anchor was weighed, it came up with it, being fouled in the flukes of the anchor, and one of the men cut the cable in two with an axe. The court discussed the question of which would have been in fault had their rights been equal ; but as it appeared that the telegraph company had been ille- gally organized, the court held that its cable w-as a nuisance in the navi- gable stream, and the company could not recover damages against the vessel owners for the severance of the cable. Doboy & Union Island Tele- graph Co. V. De]\Iagathias, 25 Fed. Rep. 697. In California and Wash- ington by statute, the telegraph company may recover, if it puts up signs indicating the position of the submarine line, Cal. Civ. Code, §§ 537, 539; Wash. Hill's St & Codes, §§ 1.502, 1566. 2 The Clara Killam. L. R. 3 Adm. & Eccl. 161. 2 Cf. Stephens & Condit Transportation Co. v. Western Union Tele- graph Co., 8 Ben. 502. CONSTRUCTION LIENS. 249 CHAPTER XII. CONSTRUCTION LIENS. § 275. Mechanic's ami other Liens. § 278. Material furnished. 276. Statutes affecting this Subject. 279. Railway Lieu. 277. What is covered by such Lien. 280. Mi.^^cellanemis Decisions. Appurtenances. 281. Landlord's Lien. § 275. Mechanic's and other Liens. — TllC property of tele- graph, telephone, electric light and railway companies is generally subject to all liens Avhich apply in case of property of private corporations or individuals unless statutory exemp- tion is made. It has been attempted to hold that the property of an electric light corporation is exemi)t from the applica- tion of an ordinary mechanic's lien statute on the same principle on which the property of a municipal corporation is exempted; namely, that the public character of the work carried on "by the corporation rendered it unadvisable that this should be interrupted by the sale of a portion or all of the plant under a mechanic's lien statute. The court, how- ever, held that while the electric light corporation was in effect a public corporation, yet it was not to be placed in the same line with municipal corporations, and that while the business which it carried on was public, it was done for the profit and advantage of the stockholders of the company as well as for the advantage and convenience of the public, and therefore that its property should be subject to a mechanic's lien in the same way as the property of any private corporation or individual. ^ Presumably the same ruling would be made in case of telegraph and telephone lines, unless some statute expressly exempts them. As to ^ Badger Lumber Co. r. ^Marion Water Supply, Electric Light & Power Co.. 4S Kan. 182. Cf. supra, § 24. 250 THE LAW OF ELECTRICITY. telegraph lines, an indirect decision on this point is a case where a mechanic's lien was claimed by a contractor against a telegraph company, and the court held that the statute giving a mechanic's lien was intended for the benefit of employees only, and not for a contractor who furnishes and strings the wires upon the poles of the company, under a contract.! in this case, the court seems to have tacitly assumed that there was no question of the applicability of the statute to telegraph companies. § 276. statutes affecting this Subject. — In some States statutes have been passed specifically authorizing mechanic's liens upon the property of telegraph or telephone companies. Thus in Florida it is provided that liens prior in dignity to all others may exist in favor of (among others) any person performing, by himself or other, any labor upon any telegraph or telephone line, whether in the construction, repair, or operation thereof; upon such line, any and all franchises, machinery and equipments connected therewith or thereon, and on the land upon which they stand.^ Also in favor of any person who shall furnish any building material for the construction, repair, or use of any telegraph line upon said lines or other property and the lands upon which they stand. ^ Also in favor of any person who shall furnish any machine or parts of machine or instrument for any telegraph or telephone line, upon the articles so furnished.^ Also in Wisconsin a lien is given as follows: Any person who shall do or perform any labor or services in cutting, felling, hauling, driving, rafting, booming, cribbing, towing, sawing, peeling or manufacturing into lumber any logs or timber in any of the counties of this State, shall have a lien upon such logs, timbers, lumber, cord wood, telegraph poles, 1 Bankers and Merchants Telei^raph Co. of Indiana v. Bankers and Merchants Telegraph Co. of Xew York, 27 Fed. Rep. 536. 2 Florida Rev. Stat. § 1727. " lb. § 1729. * lb. § 1737. CONSTRUCTION LIENS. 251 telephone poles for the amount due or to become due for such labor or services, which shall take precedence of all other claims or liens thereon. ^ In most States, however, the application of a mechanic's lien to such property depends upon the ordinary statute creating the usual mechanic's lien, and is regulated by the rules governing such liens in general. It would be outside of the scope of this work to give any discussion of these rules, except as they have been applied to electric companies, which, as yet, has not been the case in many instances. A few points of more or less importance have been decided, which are given in the following sections. § 277. What is covered by such Lien. Appurtenances. — When the statute gives a lien upon the real estate and its appurtenances, it has been held that the poles and wires of an electric company constitute appurtenances to the power station, and, therefore, are covered by the lien.^ Thus in one case the poles were planted in the streets in the usual manner, and the wires and lamps were fixed thereon, and all were connected by the electric light wires with the machinery and premises of the company. The language of the statute provided that when a person under contract with the owner of land "shall furnish material for erecting any appurtenance to any building he shall have a lien upon the whole piece or tract of land, the buildings and appurtenance." It was held that the poles and wires were an appurtenance of the premises of the company. In this case the court says, "If the poles and wires can be regarded as an appurtenance of the power house, the plaintiff acquired a lien and is entitled to enforce it against the property of the defendant. Here the principal thing was the power house, and the poles and wires attached thereto were incident to the power house and 1 Sanb. and Rerr. Ann. St. § 3329. 2 Badger Lumber Co. v. Marion Water Supply, Electric Light & Power Co., 48 Kan. 1S2. 252 THE LAW OF ELECTRICITY. machinery. They were necessary to the enjoyment of the principal thing and indispensable to the transmission of electricity and the lighting of the city. If a conveyance of the property of the company with its appurtenances thereto belonging had been made by the defendant, we do not doubt that the poles and wires would have passed as appurtenant to the premises conveyed. The fact that the poles were planted in the streets of the city, the fee of which is in the public, would not change their character or make them any the less an appurtenance of the premises of the electric light company. " ^ § 278. Material Furnished. — In a State where a statute gave alien for "material furnished about the erection and con- struction, operation and repairs of a building," the court held that an electric light plant furnished for lighting a vessel was material furnished within the language and intent of the statute. 2 § 279. Railway Lien. — Under the statutes of Ohio, which 1 Cf. Fechet v. Drake, 12 Pac. Rep. 694 ; American Union Telegi-aph Co. V. Middleton, 80 N. Y. 408; Boston Safe Deposit & Tr. Co. v. Bankers & Merchants Teleg. Co., 36 Fed. Rep. 288: Harriman v. Woburn Electric Light Co. 163 Mass. 85 ; Ramsdell v. Citizens' Electric Light & P. Co., 61 N. W. (Mich.) 275; Harrisburg El. Light Co. v. Goodman, 129 Pa. St. 206; Vail u. Weaver, 132 Pa. St. 363. As throwing light on this point, the decisions on similar points are valuable. Thus it has been held that when electric lighting machinery, i. e., engine and dynamo, is placed in a building used for other purposes, the question as to whether they become part of the realty is a question of intention, i. e., whether they were intended to remain permanently. Vail v. Weaver, 132 Pa. St. 363. When electric light wires are placed beneath the plastering of a building, to connect with the lamps, the question of ownership, as be- tween the company and the owner of the building, is a question of the intention of the construction contract. Harrisburg Electric Light Co. V. Goodman, 129 Pa. St. 206. Telegraph poles and wires in a highway are realty. American Union Telegraph Co. v. Middleton, 80 N. Y. 408. The lamps of an electric light plant are chattels, and should be mort- gaged as such. Ramsdell v. Citizens' Electric Light & Power Co., 61 N. W. (Mich.) 275. 2 :\Iulholland v. Thomson-Houston Electric Co., 66 Miss. 339. CONSTRUCTION LIENS. 253 give a mechanic's lien for materials furnished for construct- ing a railroad, depot buildings, and water-tanks, the lien does not apply to electrical ap])aratus used in putting an electric lighting plant in a hotel not owned by the railroad company although forming a part of the same enterprise.^ § 280. Miscellaneous Decisions. — It has been held that where the statute gives a lien to an employee, this statute will not extend to a contractor who has, under contract with the telegraph company, strung wires on poles of the company, and he cannot assert a mechanic's lien upon the property of the company. ^ It has also been held that under the laws of Texas, when a mechanic's lien is registered, it relates back to the time when the work or materials were furnished, and will take precedence of subsequent mortgage liens, although they; were recorded prior to the registration of the mechanic's lien, four months being allowed for the registration of the latter lien.^ It has also been held in New York that although the statute relating to mechanic's liens provides simply that persons who have filed notice of lien as well- as those having subsequent liens and claims by judgment, mortgage or conveyance, shall be made parties to an action to foreclose a mechanic's lien, yet this enumera- tion of parties who must be joined in the action does not prohibit making others parties under the section of the Code which provides that all parties necessary to the determining of a controversy may be brought in. In this case the plain- tiffs, having agreed to furnish to the defendant an engine and other fixtures, contracted with a third person to furnish the engine. When the same was furnished, the plaintiffs gave such third person an order on the defendant which the defendant refused to accept. The plaintiffs thereupon noti- ^ Industrial & Mining Guaranty Co. v. Electric Supply Co., 58 Fed. Hep. 739. ' Bankers & ^Merchants Telegraph Co. of Indiana v. Bankers & Mer- chants Telegraph Co. of New York. 27 Fed. Rep. 536. » Keating Impl. & Mach. Co. i'. Marshall Elec. L. & B. Co, 74 Tex. G05. 25-4 THE LAW OP ELECTRICITY. fied the defendant that the order was revoked, but the payee of the order notified the defendant that he would hold the defendant responsible upon the order. Thereafter the plain- tiffs filed a mechanic's lien and sought to foreclose it against the defendant, and the defendant moved that the payee in the order should be joined with or substituted in place of the defendant in the foreclosure suit, and the court held that the payee in the order should be joined in the suit.^ § 281. Landlord's Lien. — In lowa a statute provides that a landlord shall have a lien upon any personalty of the tenant used on the premises during the terms, and this lien is not extinguished by the removal of the property from the premises. It was held, therefore, that a landlord could not enjoin an electric light company which had leased and was occupying his land for a term of years under a written lease, from moving before the end of the lease to other premises in the city on which the company intended to continue and enlarge its business, the company not being, at the time of removal, in arrears for rent, and its personalty being easily identified. These facts showed that the landlord had not, at the time of the removal, any existing lien for his rent, nor would he be deprived of the benefit of his lien by the removal in case rent should become overdue in the future, during the term of the lease. ^ 1 Williams v. Edison Electric Illuminating Co., 16 N. Y. S. 857. 2 Carson v. Electric Light & Power Co., 85 la. 44. OPERATION OF ELECTRIC COMPANIES. 255 BOOK III. OPERATION. CHAPTER XIII. OPERATION OP ELECTRIC COMPANIES. § 282. General View. § 284. Grouping of Electric Com- 283. Statutes. panics. § 282. General View. — In considering the rules of law governing the operations of electric companies in the prose- cution of their business, the main characteristic from which most of such rules as are peculiar to these companies spring, is the public nature of the business in which the companies are engaged. ' The character of this business has been already commented upon in previous sections, i and the privileges incident thereto in the way of acquisition of fran- chises over highways have been heretofore discussed. ^ From this public character of the business arises the principle that in its prosecution, electric companies are bound to serve the public with due care and diligence. This, as will be seen later, is the guiding principle of all the numerous decisions affecting this subject, and the basis of the numerous statutes regulating this matter. § 288. Statutes. — By reason of the importance to the public that electric companies should exercise their privi- leges and carry on their business in accordance witli the above principles, in many States statutes have been passed 1 Supra, §§ 4-6, 18. 2 Supra, cc. iv., v., vi. 256 THE LAW OF ELECTRICITY, which cither express, in definite terms and witli limitations, the common-law duties arising from the nature of the employment, or prescribe additional duties, or grant privi- leges and exemptions which do not exist at common law. For instance, as will be seen fully hereafter, in very many States statutes have been passed compelling telegraph com- panies to receive messages from and furnish telegraphic facilities to every one alike, without unjust discrimination, i. e., against rival companies, and to transmit and deliver messages with care and promptness ; and these statutes have, in some cases, been extended also to telephone companies for the same reasons which caused the enactment of the telegraph acts. So, again, in many cases, an order of transmission of telegrams is prescribed by statute, and a preference is given to messages which the United States government or the State government may find occasion to send over the telegraph lines, including messages in furtherance of justice, and the punishment of crime, and to messages of public and general interest, leaving other messages to be forwarded in order of receipt. The duties of a telegraph company in receiving, transmitting, and deliver- ing messages promptly and correctly are generally enforceable by common-law actions which may be brought by the person interested, as will be seen hereafter; but in some States this common-law right of action is reinforced or supplemented by statutes prescribing a penalty for dereliction on the part of the telegraph company in the performance of its duties. There are also statutes which require telegraph operators to preserve the secrecy of despatches inviolate, and others which prevent outsiders from intercepting messages or other- wise interfering with the operation of the lines. There are also statutes exempting from jury duty the employees of a telegraph company on account of the inconvenience and trouble which their absence from their official duties would be likely to cause, and other statutes of less importance. OPERATION OP ELECTRIC COMPANIES. 257 such US those which provide for the safety and protection of the motonuen o^ electric railway cars in inclement weather, which regulate the length of the hours which electric employees may be required to work, and other similar matters. The statutes and the decisions relating to the operations of electric companies will be discussed in the following chapters. § 284. Grouping of Electric Companies. — ■ In the discussion of the operations of the various electric companies, it will be necessary to consider them, in most cases, separately, as the methods of operation of the companies are radically dis- tinct. The telegraph, which is one of the oldest of the companies, and whose operations have been regulated by numerous statutes and have formed the subject of very numerous decisions, confines its operations to the transmis- sion of messages which it receives in writing and delivers iu writing. The telephone, while, like the telegraph, it is a means of communicating intelligence by electricity, employs a wholly different method for this communication, and, generally, -establishes lines with terminal instruments over which those desiring may talk, and thus communicate intelli- gence orally. These two classes of companies, however, having a very strong resemblance, may in some cases be discussed together, as will Ijc seen hereafter. The opera- tions of electric light companies, so far as they are peculiarly characteristic of such companies as distinguished from ordi- nary manufacturing companies, will be discussed by them- selves. The electric railway company, again, is wholly distinct in its purpose and methods of operation from either the telegraph, telephone or electric light, and therefore the rules which govern this matter are so distinct in character as to require separate treatment. 17 258 THE LAW OF ELECTRICITY. CHAPTER XIV. PROHIBITION OF UNJUST DISCRIMINATION. § 285. Discrimination of Telegraph § 301. Companies. 302. 286. Discrimination against other 303. Telegraph Lines. 304. 287. Messages from other Telegraph 305. Lines. 30G. 288. Parallel and competing Lines. 307. 289. Same {continued}. 290. Reasonable Regulations. 308. 291. Limitations of the Discrimina- tion Rule. 309. 292. Furnishing Market Reports. 310. 293. Reports to Bucket Shops. 311. 294. Board of Trade or Stock Ex- 312. change Reports. 313. 295. Discrimination by Telephone 314. Companies. 315. 296. Special Acts as to Telephone 316. Companies, Arkansas. 317. 297. Statute, Connecticut. 318. 298. Statute, Indiana. 319. 299. Constitution, Kentucky. 300. Statute, Maine. Statute, Maryland. Statute, Massachusetts. Statute, Michigan. Statute, Tennessee. Statute, Vermont. Statute, Wisconsin. Refusal of Telephones to Tele- graph Companies. United States Letters Patent no Defence to Discrimination. ■ Same Subject. Same Suljject (continued'). Same Subject (continued). Same Subject (continued). Same Subject (continued). Telephones for Individuals. Statutory Telephone Rates. Indiana Cases. Same Subject (continued). Same Subject (continued). Discrimination of Electric Light and Railway Companies. § 285. Discrimination of Telegraph Companies. — While the duty of telegraph companies to serve all the public alike exists at common law and arises from the public nature of the employment of the company, ^ yet in many States this duty has been declared or enacted by express statute. A usual form is that which is found in New York, and which is expressed as follows. " Every (Telegraph) corporation shall receive despatches from and for other telegraph and tele- phone lines or corporations, and from or for any individuals, and on payment of the usual charges by individuals for transmitting despatches, as established by the rules and 1 Supra, § 6; infra, § 377. PROHIBITION OP UNJUST DISCRIMINATION. 259 regulations of such corporations, transmit the same with impartiality and good faith, and in the order with which they are received.^ Statutes similar to this in effect, though varying in language, are found in almost all the United States. 2 § 280. Discrimination against other Telegraph Lines. — One important purpose of these statutes in addition to securing to individuals the speedy transmission of their messages, was to build up the system of connecting telegraph lines so that messages could be sent over long distances by trans- mission from one line to another, and to avoid the possibility of rival companies refusing to receive each other's messages for transmission, thereby preventing the extension of tele- graphic facilities, and it was for this purpose that the legis- latures expressly incorporated in the statutes, in most instances, " other telegraph companies " as among the par- ties to whom telegraphic service must be offered on equal terms. There does not seem to have been much disposition to evade this provision on the part of telcgra])h companies, and generally "it is for their advantage to afford telegraphic facilities for the transmission of messages for other com- panies, thereby increasing the volume of business and afford- ing the public such ample accommodations as still further tend to the growth of telegraphy. 1 Acts 1890, ch. 5f5G, Art. 103. 2 Arkansas, Acts ISSS, ch. 107, §§ 7, 8, 10 ; Colorado, Mill's Ann. Stat. § 5S9; Connecticut, Gen. Stats. § 3952; Georgia, Laws 188.9, No. 672, § 2, Laws 1887, No. 365, § 1, Laws 1892, No. 93; Illinois, Ann. Stat. ch. 134, par. 6; Indiana, Ann. Stat. § 5511, as amended by Act 1885, ch. 48; Iowa, Ann. Code, § 2106 ; Kentucky, Const. § 199 ; Maryland, Pub. Gen. Laws, Art. 23, § 228 ; Massachusetts, Pub. Stat. ch. 109, §§ 10, 11; Michigan, Acts 1893, No. 195; INIississippi, Ann. Code, § 4326; Missouri, Rev. Stat. § 2725; Nebraska, Comp. Stat. ch. 89 a, §§ 5,9,11; New Hampshire, Pub. Stats, ch. 81, § 13; New York. Acts 1800, ch. 566, Art. 103 ; Ohio, Rev. Stat. § 3402; Pennsylvania, Bright Purd. Dig. p. 1G29, § 11; Ten- nessee, Code, § 1929 ; Vermont, Rev. Laws, § 3660 ; Virginia, Code. § 1291 ; Washington, Hill's Stats. & Codes, § 1550. See also statutes as to opera- tion in §§ 320-349. 260 THE LAW OF ELECTRICITY. § 287. Messages from other Telegraph Lines. — In a fcw cases, however, arising between companies whose lines covered the same field, either wholly or partially, there have been refusals by one company to accept and transmit messages for another, and in such cases the company whose message has been refused, by due application to the court, may obtain either an injunction restraining the offending company from refusing to receive and transmit the messages, or damages or penalty for refusal to transmit any particular message, as the statutes may provide.^ § 288. Parallel and Competing Lines. — In New York an exception was at one time made which allowed telegraph companies to refuse to receive messages from companies which have parallel and competing lines. In such a case the company which refused to receive the message was obliged, in defence of its action, to show that the company offering the message had a parallel and competing line.^ Thus in a case in New York ^ the plaintiff company brought suit for a penalty of 8100 from the defendant, under the State statute, for refusing to receive a message and transmit the same to Auburn, N. Y. The defendant company main- tained that it was not obliged so to do under the statute, because the plaintiff company had a parallel and competing line to the same [)lace. The facts showed that the defendant company had a line from Albany to Buffalo in a direct line. It also had, between Syracuse and Rochester, a southern line, a loop of the northern line, which passed through Auburn, and that messages were sometimes sent to Buffalo 1 Atlantic & Pacific Telecfraph Co. v. Western Union Telegraph Co., 4 Daly (X. Y.), 527; United States Telegraph Co. v. Western Union Tele- graph Co., 50 Barb. (X. Y.) 46. 2 United States Telegraph Co. v. Western Union Telegraph Co., 56 Barb. (N. Y.) 46 ; Atlantic & Pacific Telegraph Co. v. Western Union Telegraph Co., 4 Daly (X. Y.), 527. 3 United States Telegraph Co. v. Western Union Telegraph Co., 56 Barb. (X. Y.j 46. PROHIBITION OP UNJUST DISCllIMINATION. 2G1 over this line, though it was more ordinarily used for local messages. Plaintiff company had a line from Albany to Buffalo corrcsj)unding to the northern line of the defendant company, but it had no line to Auburn corresponding to the loop, and the nearest it came to Auburn was the city of Syracuse, eight miles off. The message was delivered to the plaintiff company by the sender in Albany, X. Y., and transmitted by it over its line to Syracuse. There it was taken by the operator of the plaintiff company and carried to the office of the defendant company and written on one of their blanks and handed to the operator of the defendant company with the request to forward it to Auburn. This the operator refused to do. The court held that the true test governing this case was the question whether the plain- tiff company had a parallel and competing line from the point where the message was offered for transmission to the point of destination, and that other arrangements of the lines of either plaintiff or defendant were immaterial ; that in the case at bar there was no pretence that the plaintiff company had a parallel and competing line from Syracuse, where the message was offered, to Auburn, its destination, and therefore the defendant company should have received it. The court also held that the plaintiff was the proper person to sue for the penalty, although it was acting as the agent of the sender. § 289. Parallel and Competing Lines (continued). — In another case,^ the Atlantic Telegraph Co. brought suit in New York for an injunction against the Western Union Telegraph Co. to prevent the latter from refusing to accept messages for trans- mission over its Atlantic cable, relying upon the statute in that State which required telegraph companies to receive and transmit messages for other telegraph companies. The Atlantic company had linos running from New York to * Atlantic & Pacific Telegraph Co. v. "Western Uniou Telegraph Co., 4 Daly (N. Y.), 527. 2G2 THE LAW OP ELECTRICITY. Buffalo, and lines from there to San Francisco. The West- ern Union, also, had parallel lines to the same places, and was doing business in competition with the Atlantic Com- pany. The defendant contended that it was excused from taking the messages in question on account of the exception in the statute above stated, which relieved one company from receiving messages from another company which had parallel lines and was working in competition with it. The court, however, held that the exception in the statute applied only to the line over which the message was to be sent, and as the plaintiff company applied in New York to have the message sent from New York to Plaister Cove, in Nova Scotia, to which point messages were sent for transmission to Europe, and had no competing line over this route, the fact that it had competing lines to other places did not affect the case.i § 290. Reasonable Regulations. — A telegraph company may, however, in receiving messages from other telegraph companies, make reasonable rules as to the reception of such messages for transmission, as, for instance, that the sending company must write on the message the date and the name of the company sending it; but a rule that the sending company must produce a power of attorney from the original sender of the message, authorizing the company to transmit it over the connecting company's lines, is unreason- able and impracticable, and simply calculated to keep other companies from doing business over the lines, and therefore will be held void.^ § 291. Limitations of the Discrimination Rule. — Although a telegraph company is obliged to extend its telegraph facilities to all persons alike, yet this rule applies only to ' For a peculiar instance of alleged discrimination, see Mayo v. West- ern Union Telegraph Co., 112 N. C. 343. ■2 Atlantic & Pacific Telegraph Co. v. "Western Union Telegraph Co., 4 Daly (N. Y.), 527. PROHIBITION OP UNJUST DISCRIMINATION. 2G3 telegraphic business of kinds for the transaction of which the company liolds itself out to the public, and it cannot be compelled to undertake kinds of business which it does not consider for the interests of its stockholders. Thus a tele- graph company, whose ordinary business is the conducting of a general telegraphic business, may or may not engage in the business of supplying market reports or stock reports to brokers, or any other special class of business; but it cannot be required to engage in such other and special branches of business in the absence of statutory requirements or charter stipulations compelling it so to do.^ Moreover, only unjust discrimination is prohibited. Therefore, if a telegraph company makes different prices to two different newspaper companies, this discrimination is not unlawful if the condi- tions of expense and difficulty vary, so as to make the difference in price reasonable. ^ § 202. Furnishing Market Reports. — • Whether or not the rule as to discrimination applies to business done by tele- graph companies outside of their regular telegraphic busi- ness, is not well settled by the decisions. It has been held that if the telegraph company engages in the business of supplying market reports to brokers and others interested therein, it must supply the reports to all alike, and cannot, merely for its own convenience or the advantage of its business, supply to some and refuse to supply to others. This point has been discussed in two cases in New York, the first being Shepard v. Gold& Stock Telegraph Co.,^ in which the facts were as follows : — » Smith V. Gold & Stock Telegraph Co., 42 Ilun (X. Y.), 454; Brad- ley V. Western Union Telegraph Co., 17 Fed. Rep. 834; Metropolitan Grain & Stock Exchange v. Board of Trade, 15 Fed. Rep. 850. Compare post, § 307, and see post, §§ 292-294; Shepard v. Gold & Stock Telegraph Co., 38 Hun (N. Y.), 338 2 Western Union Telegraph Co. v. Call Publishing Co., C2 X. W. Rep. 506. 8 38 Hun (N. Y.), 338. 264 THE LAW OF ELECTRICITY. The telegraph company, which was in the business of reporting to various brokers the market prices of stocks and bonds, had an instrument in the phiintiff' s office for this purpose, but attempted to take it out because he forwarded the reports to other brokers, thus interfering with the busi- ness of the telegraph company. He brought suit for an injunction to prevent this removal. In the contract under which he hired the instrument, the telegraph company stipu- lated that the reports were forwarded to subscribers for their private use in their own business exclusively, and that the subscribers should not sell or give up the copies of the reports in whole or in part, nor permit any outside party to copy them, and that subscriptions by one party for the bene- fit of himself and others at their joint expense would not be allowed. The contract also provided an unqualified right in the telegraph company to discontinue these reports and remove the instruments, without notice, when they were used in any way which it considered detrimental to its interests. It was proved that the plaintiff had regularly sent the infor- mation thus obtained to another firm. He excused this action on the ground that he was financially interested in the firm ; but the court held that this was not a valid excuse, as in that way, the plaintiff, if diligent, might absorb a great portion of the business of the defendant, and therefore that the stipulations of its contract were reasonable, and bound the parties. In a later case, however,^ the facts were almost the same as in Shepard's case; but the court came to directly the opposite conclusion, that the telegraph company, being in a public business, must supply equal facilities to all, and that although it might wholly withdraw from the business of furnishing stock reports, yet if it continued in it as to one, it must as to all, and, further, that the stipulation in the contract that it might terminate the same whenever, in its 1 Smith V. Gold & Stock Telegraph Co., 42 Hun (N. Y ), 454. PROHIBITION OP UNJUST DISCRIMINATION. 205 judijment^ the conditions were broken, was unreasonable and void. There docs not appear to have been any proof in this case that the plaintiff was sharing the information he received with other parties. The court in this case notices the difference between ordinary telegraphic business and the business of supplying market reports, but holds that in both, the telegraph company is bound by its public duty not to discriminate. Contrary to the rule in this case, however, the court in Ohio has held that as to such special business as furnishing market reports, the telegraph company was not under obligations as to the public, and might furnish or refuse to furnish to whomever it would. ^ And a case in Penn- sylvania follows this line also.^ The distinction drawn in this case, and in another in the same State, ^ is probably the true one, i. e., that where the charter purposes of the corpo- ration include collecting and furnishing market quotations and other news, or similar purposes, the company may be compelled to perform its charter duty to all without dis- crimination;"* but where the charter purpose is that of receiving, transmitting, and delivering messages only, the furnishing of stock quotations and market news is ultra vires, and the courts will not enforce its performance.^ § 293. Reports to Bucket Shops. — The telegraph company is not, however, bound to furnish such facilities to brokers engaged in mere gambling transactions, as this is an immoral or illegal transaction, and the law will not compel the telegrai)h company to furnish information to further such transtictions.^ In the case in the Federal Court the 1 Bradley v. "Western Union Telegraph Co. (Cinn. Com. Gazette), 17 Fed. Rep. 834. 2 Sterrett v. Philadelphia Local Telegraph Co., 18 Week. N. of Cas. 77. 8 Davis V. Elect. Reporting Co., 10 Week. N. of Cas. 5(J7. * Ibid. » Sterrett v. Thiladelphia Local Telegraph Co., supra. Cf. Cain v. Western Union Telegraph Co., 18 Cinn. Week. L. Bull. 207. 6 Smith V. Western Union Telegraph Co., 81 Ky. 064; Bryant v. West- ern Union Telegraph Co., 17 Fed. Rep. 825. 266 THE LAW OF ELECTRICITY. illciral transaction consisted in buving and selling futures in grain and produce upon margins, the complainants carrying on this business and never dealing in purchases or sales for present delivery, but only on margin, and the customer not being held personally liable, but only to the extent of his margin, the transaction being closed out if the margin was lost, and on the other hand, if the market went in his favor, the customer being able to call for a settlement at any time without regard to the maturity of his contract, and he then being paid the difference between the then market price and the price at which he bought or sold, less the commission. The court held that this was a very pernicious and demoralizing species of gambling, and that a court of equity would not compel the telegraph com- pany to furnish quotations of prices for carrying on such business.^ § 294. Board of Trade or Stock Exchange Reports. — Trouble has arisen in several cases because the boards of trade or stock exchanges have refused to allow the telegraph com- panies to have the reports of their transactions for transmis- sion. There is a conflict of opinion upon the question whether a Ijoard of trade or stock exchange is or is not so far a public corporation that it must furnish its reports to the public without unreasonable or unjust discrimination. It has been held that it must. Thus where the Board of Trade refused to allow a telegraph company to take its reports for transmission because it sent them to persons who paid nothing to the support of the board, i. e., bucket shops, the court held that this was unjust discrimination ; that the Board of Trade was so far affected with a puljlic interest, that it mu»t not discriminate as to who should receive market quotations from the telegraph companies, or what telegraph companies should be allowed facilities for dis- 1 But see Sterrett v. Philadelphia Local Telegraph Co., 18 Week. N. of Cas. 77. Compare /)os<, § 352. PROHIBITION OF UNJUST DISCRIMINATION. 267 tributiiig the information to the publie. ^ On the other hund, it has been held that the Board of Trade is wholly a private corporation, and can give or witlihold such information as it sees fit, as to the transactions within its halls.^ § 295. Discrimination by Telephone Companies. — A tele- phone company being, as has been seen in an earlier part of this work, 3 engaged in a species of telegraphy, and this occupation being of a public nature similar to that of tele- graph companies, it has been deemed best by the State legislatures in many instances to enact statutes providing against discrimination by telephone companies in the fur- nishing of telephonic facilities, covering in some cases merely the leasing of telephones, and connecting them with the central exchange and other subscribers, and in other cases including also in addition the transmission of oral messages in the same manner as telegraph companies transmit written ones. These statutes originated in an attempt, which will be discussed later, on the part of the parent American Bell Telephone Company, of Massachusetts, to prevent any tele- graph companies except the Western Union from em})loying the telephone exchanges in connection with the telegraphic business, the Bell Company being obliged to do this by a fundamental working contract between itself and the Western Union Telegraph Company. The statutes which affect this prevention of discrimination in the case of telephones may be divided into two classes. First, those which merely include telephone companies in the statutes preventing discrimina- tion by telegraph companies. This is the case in Arkansas,* 1 Public Grain & Stock Exchange r. Western Union Telegraph Co., C. C. Cook County, May 1SS3, 17 Fed. Rep. 830; New York cSc Chicago Grain & Stock Exchange v. Board of Trade, 19 N. E. Rep. 855. 2 ]\Ietropolitan Grain & Stock Exchange v. Board of Trade, 15 Fed. Rep. 850; Marino Grain & Stock Exchange v. Western Union Telegraph Co., 22 Fed. Rep. 23. ' Supra, § 13. 4 Acts 1885, oh. 107, §§ 5-10, supplemented by special act, see next section. 268 I'HE LAW OP ELECTRICITY. Connecticut,"' Mississippi,^ Missouri,^ New Hampsliire,^ New York,5 01iio,6 A'^irginiaj^ Washington.^ § 296. Special Acts as to Telephone Companies, Arkansas. — In other States, however, special acts are passed which regiihite with more particularity the duties of telephone companies as to furnishing instruments to all would-be subscribers. Thus it is provided by statute in Arkansas that every telephone company doing business in that State and engaged in the general telephone business must supply all applicants for telephone connection and facilities without discrimination or partiality, provided such applicants comply or offer to comply with the reasonable regulations of the companv, and all conditions or restrictions must be imposed impartially upon all persons or companies in like situations, and no discrimination shall be made against any individual or company engaged in lawful business by requiring as con- dition for furnishing such facilities that they shall not be used in the business of the applicant or otherwise, under penalty of one hundred dollars for each day of discrimination and refusal.^ § 297. statute, Connecticut. — In this State by statute, any person or corporation owning, controlling, or operating a telephone exchange or service in the State must, upon application of any telegraph company, furnish the telegraph company So applying with the use of a telephone or tele- phones, and telephone service, and connection with their respective exchanges, the subscribers thereto and telephone service, without discrimination between telegraph companies as to such connection, service, or use of instruments fur- nished or charges therefor for the same class of service, and ^ Gen. Stats. § 3952, supplemented by special act, see next section. 2 Annot. Code, § 4326. » j>ev. Stat. § 2725. * Pub. Stats, ch. 81, § 13. 6 Acts 1890, ch. .566. Art. 103. 6 Rev. Stats. §§ 3462, ,3471. ' Code, §§ 1291, 1292. 8 Hill's Stats. & Codes, § 1550. » Acts 1885, ch. 107, § 11. PROHIBITION OF UNJUST DISCRIMINATION. 269 any court in that State having equity jurisdiction shall ujion the petition of any party in interest enforce the provisions of that act hy any suital)le process or decree in equity. ^ § 298. Statute, Indiana. — In this State, by statute, every telephone company with lines wholly or partially in the State, and engaged in a general tole])hone business, shall, within the local limits of such telephone company's business supply all applicants for telei)hone connections and facilities with such connections and facilities without discrimination or partiality, provided such applicants comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any conditions or restrictions upon any such applicant that are not imposed impartially upon all persons and companies in like situations, nor shall such companies discriminate against any individual or person engaged in any lawful business or between individuals or companies engaged in the same business, by requiring as a condition for furnishing such facilities that they shall not be used in the business of the applicant or otherwise for any lawful purpose. '^ Any person or company violating the provisions of this act shall be liable to any party aggrieved in a penalty of one hundred dollars for each offence, to be recovered in a civil action in any court of competent jurisdiction, provided noth- ing in this act shall be construed to take awav or abridge the right of such aggrieved party to appeal to a court of equity to prevent such violations or discriminations by injunction or otherwise.^ § 299, Constitution, Kentucky. — In Kentucky by the Consti- tution, telephone companies operating exchanges in different towns or cities or other public stations, shall receive and transmit each other's messages without unreasonable delay or discrimination.* 1 Conn. Stats. 1889, cb. 160. « Ann. Stats. § 5529. 8 lb. § 5.3J9, R. * Const. § 199. 270 THE LAW OF ELECTRICITY- § 300. Statute, Maine. — In this State the Statutes provide that every corporation operating a telephone line in this State shall, upon the application of any other corporation operating a telephone line, allow the corporation first making such application, connection between such lines upon the same rates as charged for the same distance upon the lines of the corporation so connecting, and with the same charges for the use of telephone exchanges as are established for the patrons of such corporations. Every corporation authorized by its charter to grant telephone privileges, including the leasing of instruments and other appliances, shall grant such privileges lipon equal and uniform terms and conditions.^ § 301. statute, Maryland. — Every telephone company with wires wholly or partly within this State, and engoged in general telephone business, shall, within the limits of such telephone company's business, supply all applicants for tele- phone connections and facilities for such connections and facilities, without discrimination or partiality ; provided such applicant comply or offer to comply with the reasonable regu- lations of the company ; and no such company shall impose any conditions or restrictions upon such applicant that are not imposed impartially upon all persons or companies in like situation, nor shall such companies discriminate against any individual or company engaged in any lawful business, or between individuals or companies engaged in the same business, by requiring, as a condition for furnishing such facilities, that they shall not be used in the business of the applicant, or otherwise for any lawful purpose. ^ § 302. Statute, Massachusetts. — Any person or corporation owning, controlling, or operating a telephone exchange or service in this Commonwealth shall, on application of any telegraph company, furnish the telegraph company so apply- ing with the use of a telephone or telephones and a telephone service, and connection with their respective exchanges, the 1 Acts 1885, ch. 378, § 9. « Laws 1892, ch. 387. PROHIBITION OF UNJUST DISCRIMINATION. 271 subscribers thereto and telephone service, without discrimina- tion between telegraph companies as to such connection, service, or use of instruments furnished or charges therefor for the same class of service. ^ Any person or corporation owning, controlling, or operat- ing a telephone exchange or service in this Commonwealth shall, on application of any individual or corporation, and the tender of the charges or rental sum usual or customary fur the class of service required, without discrimination for the same class of service rendered, furnish such individual or corporation so applying with the use of a telephone and telephone service and connection with their respective exchanges and the subscribers thereto, provided that the individual or corporation so applying will secure the rights necessary to make the connections applied for and pay to the telephone company in advance a sufficient sum to cover the actual cost of the extension, if said extension is beyond one mile from any main exchange circuit of the said telephone company applied to.^ Any court in the Commonwealth having equity jurisdiction shall, upon petition of any party in interest, enforce the provisions of this act by any suitable process or decree in equity.^ § 303. statute, Michigan. — It is the duty of every tele- phone company or person, firm or corporation engaged in the business of leasing telephones to the pu])lic, or supply- ing the public with telephones and telephonic service, or operating a telephone exchange, to receive and transmit, without discrimination, mcssaeres from and for anv other company, person, or persons upon payment or tender of the usual or customary charges therefor ; and upon payment or tender of the usual or customary charges, or usual or cus- tomary rental sum, it shall be the duty of every telephone 1 Acts 1885, ch. 267, § 1. « jb. § o. 8 lb. § 3. 272 THE LAW OF ELECTRICITY. company, or person or persons, firm or corporation engaged in the business of leasing telephones to the public, or supply- ing the public with telephones and telephonic service, or operating a telephone exchange, to furnish without unrea- sonable delay, Avithout discrimination, and without any further or additional charge, to the person, firm, or corpora- tion applying for the same, including all telegraph com- panies, a telephone or telephones, with all the proper or necessary wires or fixtures, and the use of such telephone, wires and fixtures, as well as connection with the central office or telephone exchange, if desired, and shall connect the telephone of such person, firm, or corporation with the telephone of any other person, firm, or corporation having connection with the same, or a connecting exchange or central office, whenever requested so to do, without regard to the character of the message to be transmitted, provided it is not obscene or profane; and every company, per- son, firm, or corporation neglecting or refusing to comply with any of the provisions of this act shall forfeit all right to transact a telephone business in this State, and may be enjoined therefrom, and from leasing telephones to the public, from supplying the public with telephones and tele- phonic service, and from operating a telephone exchange, by bill of complaint filed in any court of competent jurisdiction, by any person, firm, or corporation injured, interested in, or denied any of the rights herein given; or such person, firm or corporation, neglecting or refusing to comply with any of the provisions of this act shall forfeit not less than twenty- five nor more than one hundred dollars for each and every day such neglect or refusal shall continue, one-half to the use of the person, firm, or corporation prosecuting therefor.^ § 304. statute, Tennessee. — Every telephone company doing business within this State, and engaged in a general telephone business, shall supply all applicants for telephone 1 HoweU's Ann. Stat. Supp., 1883-1890, § 3718 i. PROHIBITION OF UNJUST DISCRIMINATION. 273 connections and facilities without discrimination or partial- it}', provided such ajtplicants comply or offer to comply with the reasonal>lc regulations of the company; and no such company shall impose any condition or restriction upon any such applicant that is not imposed impartially upon all persons or companies in like situations, nor shall such com- pany discriminate against any individual or company engaged in lawful business by requiring, as condition for furnishing such facilities, that they shall not be used in the business of the applicant or otherwise, under penalty of one hundred dollars for each day such company continues such discrimi- nation, and refuses such facilities, after compliance or offer to comply with the reasonable regulations, and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.^ § 305. statute, Vermont. — The statute in this State is the same as the statute in Massachusetts, ^ except that it includes other telephone companies as well, among the parties to whom telephone connections must be furnished, and also provides tlrat any individual in hiring or leasing any telc- ])hone shall have the right to transmit by telephone, to any telegraph company using a telephone, any message or tele- gram to be forwarded by telegraph, and also the right to re- ceive from said telegraph company, over said telephone wires, any message received by telegraph for said individual. ^ § 300. statute, "Wisconsin. — It shall be the duty of every telephone company or person, firm or corporation engaged in the business of leasing telephones to the public, or supplying the public with telephones and telephone service, or operat- ing a telephone exchange, to receive and transmit, without discrimination, messages from and for any other company, person or persons, upon tender of payment of the usual or ^ Code, Supplement, Shannon, p. 136, § 11. 2 See supra, § 302. 8 Laws 1888, Xo. 124 ; Laws 1892, No. 73. 18 274 THE LAW OF ELECTRICITY. customary charges therefor; and upon payment of the usual or customary charges therefor, or usual or customary sum, it shall be the duty of every telephone company or person, firm or corporation engaged in the business of leasing tele- phones to the public, or supplying the public with telephones or telephone service, or operating a telephone exchange, to furnish, without unreasonable delay, without discrimination, and without any further or additional charge to the person, firm, or corporation applying for the same, including all telegraph companies or other telephone companies, a tele- phone or telephones, with all the proper or necessary fix- tures, as well as connection with the central office or telephone exchange, if desired, and shall connect the telephone of such person, firm, or corporation, with the telephone of any other person, firm, or corporation having a connection with the same, or a connecting exchange or central office, whenever requested so to do, without regard to the character of the messages to be transmitted, provided they are not obscene or profane ; and every person or corporation neglecting or refusing to comply with any of the provisions of this act shall forfeit not less than twenty-five nor more than one hundred dollars for each and every day such neglect or refusal shall continue, one-half to the use of the person or corporation prosecuting therefor. ^ § 307. Refusal of Telephones to Telegraph Companies. — The origin of the statutes above cited was as follows : The parent American Bell Telephone Company, a corporation organized under the laws of the State of Massachusetts, was at an early date in its history obliged, on account of certain complica- tions in its patent affairs, to form a business arrangement with the Western Union Telegraph Company. This arrange- ment contemplated a monopoly by the Western Union Tele- graph Company of the use of the telephone service as an adjunct to telegraphy, and stipulated that the telephone 1 Laws of 1893, c. 236. PROHIBITION OF UNJUST DISCRIMINATION. 275 company should not license its instruments to be so used by any other telegraph company. In accordance with this arrangement, the jjarent Bell Telephone Company, in licens- ing its local com})anies, has inserted in the license contract a clause prohibiting the supplying of telci>hones to telegraph companies for use in their business, or allowing them to become subscribers to the telephone exchanges for this pur- pose. The local telephone companies, acting under this license contract with the parent American Bell Telephone Company, and in accordance with its requirements, have in many instances refused to supply telephone facilities to other telegraph companies than the Western Union Telegraph Coin})any, and this refusal has brought the matter into court. The local companies contended that they were bound by their licenses to act in this manner, and would forfeit them by a breach of their agreements. The courts have, however, with one exception held that the local telephone companies, being engaged in a public occupation, are obliged to furnish equal facilities to all; that although telephone companies cannot be compelled to add certain branches to their busi- nes, yet if they voluntarily add such branches, ^. c, the supplying of telephones for telegraphic purposes, to one telegraph company, they must supply them on the same terms to all telegraph companies, and the fact that their license from the parent company prohibits them from so doing is no defence. ^ 1 Chesapeake & Potomac Telephone Co. v. Baltimore & Ohio Tele- graph Co., 66 Md. 399; State ex rel. American Union Telegraph Co. v. Bell Telephone Co., 36 Oh. St. 296; Commercial Union Telegraph Co. v. New England Telephone & Telegraph Co., 61 Vt. 241; State of Missouri ex rel. Baltimore & Ohio Telegraph Co. v. Bell Telephone Co., 23 Fed. Rep. 539; State ex rel. Postal Telegraph Cable Co. r. Delaware & Atlantic Telegraph & Telephone Co., 47 Fed. Rep. 633; s. c. sub nom. Delaware & Atlantic Telegraph & Telephone Co. v. State of Delaware, 50 Fed. Rep. 677; Bell Telephone Co. v. Pennsylvania, 7 East. Rep. 672; People ex rel. Postal Telegraph Cable Co. v. Hudson River Telephone Co., 19 Abb. N. C. 466. Compare supra, §§ 291-294. 276 THE LAW OF ELECTRICITY. § 308. United States Letters Patent no Defence to Discrimi- nation. In tlie above cited cases the telephone companies, as a portion of their defence, alleged that by virtue of the letters patent of the United States and the federal laws relating thereto, a monopoly was granted to them which State laws could not interfere with or control. The courts, however, while recognizing the validity of this monopoly, held that State laws might impose any reasonable restriction upon the use of articles made and put in use under the letters patent, and that these letters did not authorize the patentee nor its licensees to use the patented articles in any way contrary to the laws of the State. ^ § 309. Same Subject. Chesapeake & Potomac Telephone Company v. Baltimore & Ohio Telegraph Company. — This Case, which gives a full discussion of the obligation to furnish telephones to all telegraph companies alike was an applica- tion by the Baltimore & Ohio Telegraph Company for a mandamus to compel the telephone company to provide it with instruments. Both corporations were organized under the telegraph incorporation law, but the Chesapeake & Potomac Telephone Company was doing a general telephone business. The application for the writ was based on a State statute requiring telegraph companies to " receive despatches from and for other telegraph lines, associations, and com- panies," and to "transmit such despatches in the manner established by the rules and regulations of such telegraph lines, and in the order in which they are received, with impartiality and good faith " under a penalty of one hundred dollars. The court held that a telephone is a species of telegraph, and therefore the above statute applied to the 1 Chesapeake & Potomac Telephone Co. v. Baltimore & Ohio Telegraph Co., GG Md. 309; State ex rel. American Union Telegraph Co. i;. Bell Telephone Co., 3G Oh. St. 296; Commercial Union Telegraph Co. ?;.New England Telephone & Telegraph Co., 61 Vt. 241; State ex rel. Postal Tele- graph Cable Co. c Delaware & Atlantic Telegraph & Telephone Co., 47 Fed. Rep. 633; Munn o. Illinoi.s, 94 U. S. 113. PROHIBITION OF UNJUST DISCRIMINATION. 277 telephone company. The agreed facts showed that all the instruments of the telephone company were the property of the American Bell Telephone Company of ^lassachusetts, and leased to the local company. It was admitted that the otfices of the Western Union Telegraph Company were con- nected with the telephone exchange, and this connection was used in sending and receiving messages over the telegraph lines of the Western Union Company. The aj)})lication of the Baltimore & Ohio Telegra})h Company for similar facili- ties had been refused, unless under certain conditions and restrictions which were not imposed on the Western Union Telegraph Company. It was shown that the parent Bell Telephone Company was under certain obligations to the Western Union Telegra})h Company by contract stipulations, whereby it was provided that the telephone lines should not be used for the transmission of general business messages, market quotations, or news for sale or publication "in com- petition with the business of the Western Union Telegraph Company," and that the parent telephone company "so far as it lawfully and properly can prevent it, will not permit the transmission of such general business messages, market quotations, or news, for sale or publication," over the tele- phone lines, nor license the use of its telephones or patents for that species of business in competition with such tele- graph business of the Western Union Telegraph Company. It was also shown that the license contract under which the local telephone company was operating, contained restrictive provisions to conform with the above agreements, among which was the stipulation that "no telegraph company, unless specially permitted by the licensor, can be a sub- scriber, or use the svsteni to collect and deliver messages from and to its customers, etc." The telephone company relied on these contracts to support its demand that the telegraph company, on becoming a subscriber, should observe the restrictions in favor of the Western Union Telegra{)h 278 THE LAW OF ELECTRICITY. Company, and alleged that it could not, under its contract with the parent telephone company, allow the telegraph company to become a subscriber on any other conditions. The court, however, held that the duty prescribed by law was paramount to that prescribed by the contract ; that the owner of the property employing it in a public use must submit to legal regulations of that use, nor did the United States letters patent confer any right to use the patented instruments in any other manner than is authorized by law.i § 310. Same Subject (cotitinued). — In a case in Ohio^ the action was mandamus to compel the telephone company to put a telephone in the telegraph office of the relator, for the purpose of assisting it in carrying on its telegraph business. The telegraph company on whose relation the suit was instituted was a rival of the Western Union Telegraph Company, and was connected with the Baltimore & Ohio Railroad Company, taking charge of its telegraphing depart- ment, and also doing a commercial business. This case again brought in question the usual contract or license between the local telephone company and the American Bell Telephone Company, by which the local company was pre- vented from giving telephone facilities to any telegraph company except the Western Union. The license is given at length in this case. The usual State statutes requiring telegraph and telephone companies to receive and transmit despatches from other telegraph companies and from indi- viduals was the foundation of the action, and it appeared that the Western Union Telegraph Company was enjoying the telephonic facilities. The court held that the contract between the parent Bell Company and the local company could not excuse the local company from subjection to the Ohio statute requiring all telephone companies to furnish 1 Chesapeake & Potomac Telephone Co. v. Baltimore & Ohio Telegraph Co., 66 Md. 390. ^ State ex rel. American Union Telegraph Co. v. Bell Telephone Co., 36 Oh. St. 296. PROHIBITION OF UNJUST DISCRIMINATION. 279 equal facilities to all sul)scribers. The same question was considered and decided in a case in Vermont.^ The tele- phone company, as usual, made its defence on the ground that it was bound by its contract with the parent Bell Tele- phone Company to furnish telephones only to the Western Union Telegraph Comi)any. The court overruled this defence, and held that the telephone company, under its obligation as a public servant, must furnish equal facilities to all telegraph companies. § 311. Same Subject [continued). — The same line of decisions has been followed out in the Federal courts, the earliest case being a case arising in Missouri. 2 In this case the local telephone company, a Missouri corporation, was licensed by the parent Bell Telephone Comi)any to carry on a telephone business in the city of St. Louis upon condition that it should not establish telephonic communication with any telegraph company unless thereto authorized by the parent Bell Telephone Company, and it was expressly authorized so to connect with the Western Union Telegraph Company. "The Baltimore &, Ohio Telegraph Company, wishing to establish telephonic connections, was refused by the local company and applied for a mandamus to compel the local company to permit it so to do. The parent Bell Telephone Company was not made a party to this suit. It was held that all telegraph companies must be allowed tele- phonic privileges upon the same terms as the Western Union Telegraph Company, and that the parent Bell Telephone Company was not a necessary party to the suit, and the mandamus was granted. In a later case in the Circuit Court of the United States,^ 1 Commercial Union Telegraph Co. v. New England Telephone & Telegraph Co., 61 Vt. 241. ^ State of Missouri ex rel. Baltimore & Ohio Telegraph Co. v. Bell Telephone Co., 23 Fed. Rep. 539. « State ex rel. Postal Telegraph Cable Co. v. Delaware & Atlantic Tele- graph & Telephone Co., 47 Fed. Rep. 633. 280 THE LAW OF ELECTRICITY. the applicant for telephone privileges was the Postal Tele- graph Cable Company, which sued for a writ of mandamus to compel the Delaware & Atlantic Telegraph and Telephone Company to place telephone instruments in the office of the petitioner on the same terms as given to other subscribers. The local telephone company refused to furnish its instru- ments to the telegraph company except on condition that they should not be used in receiving and transmitting tele- graphic messages, although the Western Union Telegraph Company had instruments from the telephone company with- out any such restriction. The court held that under the public duties of the telephone company it was obliged to furnish instruments to all without discrimination, with equal facilities, and that telegraph companies were included as well as individuals. In this case also the telephone com- pany tried to defend on the ground that it was forbidden by its license from the parent telephone company to supply instruments to any telegraph company to be used for tele- graphic purposes, except the Western Union Telegraph Company. This defence was overruled by the court, which held that such a stipulation in the license of the local com- pany was void as against public policy. This case was carried to the Circuit Court of Appeals, and the decision was affirmed, the court holding that while the telephone com- panies are not required to extend their facilities beyond such reasonable limits as they may prescribe for themselves, they cannot discriminate between individuals of the class which they undertake to serve; that if the telephone company in question had undertaken simply the business of furnishing telephones for the transmission of personal messages for individuals, excluding telegraph companies and others who forward messages for hire, it would not have been under any obligation to furnish telephones to any telegraph company, but that having, in fact, undertaken the business of furnish- ing telephones to telegraph companies for use in their PROHIBITION OF UNJUST DISCRIMINATION. 281 business, and thus extending the telephone business from individuals to telegraph companies even in a single instance, it was obliged to furnish telephones to all telegraph com- panies for similar purposes upon the same terms. ^ It was further held in the same case that the fact that the instru- ments which they use are protected by letters jjatent of the United States did not furnish any defence to the action, and further, that the allowing of exclusive privileges to the Western Union Telegraph Company of this nature created a monopoly, which was void under the laws of the State of Delaware. § 312. Same Subject {continued). — The only case in which a different decision has been rendered was American Rapid Telegraph Company y. Connecticut Telephone Company. ^ In this case the local (Bridgeport) telephone company was by its license from the parent telephone company restricted from allowing any telegraph company except the Western Union to use its telephone exchange for telegraphic purposes. The American Rapid Telegraph Company, having an office in Bridgeport, applied to the Connecticut Telephone Company for the use of its exchange for telegraphic purposes, but was refused, and thereupon applied for a mandamus, which was granted in the alternative. The defendant alleged as a de- fence the restrictions in its contract with the parent Bell Tele- phone Company, and the trial court held the defendant's answer was sufficient, and dismissed the application. The American Rapid Telegraph Company brought the case on error to the Supreme Court of the State of Connecticut, but the court affirmed the decision of the court below on the ground that CD the restriction in the contract with the parent company re- stricted the actions of the local company. The court says : — "The plaintiff insists that the defendant (telephone cora- ^ Delaware & Atlantic Telegraph & Telephone Co. v. State of Delaware, 2 C. C. A. 1; s. c. 50 Fed. Rep. G77. 2 49 Coun. 352. 282 THE LAW OP ELECTRICITY. paiiy) has, with its services to the public as a common carrier of articuhxtc speech, thereby made itself the servant of the public, and has subjected itself to the operation of the general law which compels all such servants to serve appli- cants impartially, regardless of the limitations placed upon its use of the instruments. But the property of the American Bell Telephone Company in its patent is absolute and exclusive. It can rent or sell it in whole or in part. It can refuse to make or use or to allow any one else to make or use the telephone described in it. Or it can make and sell one and no more, and put such restrictions as it pleases upon the time and manner of using that, and it was the privilege of the Connecticut Telephone Company to purchase from it even the most limited right to use one or more of its instruments, and it is not within the power of the court either to enlarge or diminish the purchase. In this respect the position of the telephone is quite unlike that of railroad companies, which have, in the exercise of their respective franchises, voluntarily undertaken by contract to put limi- tations upon the use of property absolutely their own, and to discriminate in favor of certain applicants for transportation ; unlike that of proprietors of grain elevators, who have been declared to be warehouse men, and as such to have brought themselves Avithin the power of the legislature to regulate their tolls and compel them to render impartial service to applicants for storage; and unlike that of railroad companies which have undertaken to bind themselves by contract not to do, in behalf of the public, the service the doing of which was the consideration upon which they received valuable franchises. The record does not show that the defendant ever exercised the right or declared to the public that it had the right to use the telephonic instruments upon any other terms than such as are strictly conformable to the measure of the use granted to it by the owner of them. It does not show, and we may not assume, that it failed to perform the PROrilBITION OF UNJUST DISCRIMINATION. 283 largest possible measure, and does show that it has offered that measure to the })laintif'f. " § 318. Same Subject {continued). — This decision, being contrary to the general current of decisions on this point, especially those in the federal courts, proljably would not furnish authority outside of the State in which it was decided. It is also to be noticed that in this case no ques- tion was raised of the telephone company having, in fact, furnished telephonic facilities for telegraphic purposes to any other telegraph company, and possibly this fact may have affected the decision of the court, on the principle estab- lished in the Maryland and Delaware cases, that the tele- phone company may limit the business which it holds itself out to do, and if, in fact, it does not engage in the business of furnishing telephones to telegraph companies for telegraph purposes, it cannot be compelled to establish that branch of the business. Further, by a recent statute in that State, the rule is changed, and telephone companies are obliged to furnish their instruments and service to all telegraph com- panies, without discrimination as to use or price, and equity courts are given jurisdiction to enforce this law.^ § 314, Telephones for Individuals. — In several CasCS the courts have been called upon to compel telephone companies, by mandamus, to furnish telephones to individuals. The objection of the telephone company in these cases has mainly been a question of i)rice or rental, and the real question involved is the right of the local authorities to interfere with the prices or the rental of telephones. This point was raised in a case in Pennsylvania. ^ The question was largely one of the sufficiency of the pleadings, the telephone company filing an answer to the petition, and the petitioner demurring thereto. The petition was brought 1 Acts 1889, c. 160. See supra, § 297. 2 Central District & rrinting Telegraph Co. v. Comruonwealtb, Hi Pa. St. 592. 284 THE LAW OF ELECTRICITY. on the relation of one Friend, to compel the telephone com^ pany to put a telephone in his place of business for the sum of eighty-four dollars. The allegations of the petition sub- stantially showed that the telephone company charged one hundred and fifty dollars to Friend for putting in his tele- phone, and that they charged only eighty -four dollars for simi- lar service at similar distances from their central office. The answer denied these allegations, and stated that the relator's place of business was a mile and a half from their central office, and that the eighty-four-dollars rate was limited to one half-mile from the central office. The petitioner filed a demurrer to this answer, and the court held that the allegations of both petition and answer were substantially good, although not technically perfect; that the petition alleged a good cause of action, and the an- swer alleged a good defence. No question of statutory price was raised in this case, and the demurrer was overruled. ^ § 315. statutory Telephone Rates. — The validity of an ordinance of the city of St. Louis establishing a maximum rate for the rental of telephones was brought up in the case of St. Louis V. Bell Telephone Company. 2 The defendant company admitted that the State of Missouri might fix such a maximum rate, but denied that the city of St. Louis had ever been authorized by the State to exercise this power. The city admitted that there was no direct delegation of this power by statute to it, but claimed it under a statute giving it the right to "license, tax, and regulate telegraph com- panies. " The court held that the telephone company was, in substance, a telegraph company for the purposes of this statute, but that as the right to fix certain rates of charge for ferries, hacks, and other similar public employments was 1 Cf. Martinsburg Bank v. Central Pennsylvania Telephone & Supply Co., 1.50 Pa. St. 36; Louisville Transportation Co. v. American District Telephone Co., 24 Alb. L. J. 283. =^ 96 Mo. 623. PROHIBITION OF UNJUST DISCRIMINATION. 285 frivcn to the city in express terms, a similar rih lines or other companies or individuals, and shall, upon the usual terms, transmit the same with inT])artiality and good faith, and in the order of time in which they arc received, and shall in no manner discriminate in the rates charged or words or figures charged for or manner or conditions of service between any of its patrons, but shall serve individuals, companies, and other telegraph corpora- tions with impartiality, provided, however, that arrange- ments may be made with the i)ublishers 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. ^ Any i)erson or corporation violating any of the provisions of this act shall be liable to any party aggrieved in a penalty of one hundred dollars for each ofTence, to be recovered in a civil action in any court of competent jurisdiction; provided that nothing in this act shall be construed to take away or abridge the right of such aggrieved party to appeal to a court of equity to prevent such violations or discriminations, by injunction or otherwise. ^ Telegraph companies shall be liable for special damages occasioned by failure or negligence of their operators or servants in receiving, copying, transmitting, or delivering despatches, or for the disclosure of the contents of any private despatch to any person other than to him to whom it is addressed or his agent. ^ § 328. Iowa. — If the proprietor of any telegraph within this State, or the person having the control and manage- ment thereof refuses to receive despatches from any other 1 Ind. Ann. Stat. § 5511, amended by Act of 18S5, c 48. 2 lb. § 5512, amended by Act of 1685, supra. 8 lb. § 5513. 298 THE LAW OF ELECTRICITY. telegraph line, or to transmit the same with fidelity and without unreasonable delay, all the laws in the State in relation to limited partnerships, to corporations, and to the obtaining of private property for the use of such telegraph shall cease to operate in favor of the proprietor thereof; and if private property has been taken for the use of such tele- graph without the consent of the owner, he may reclaim and recover the same.^ Any person employed in transmitting messages by tele- graph must do so without unreasonable delay, and any one who wilfully fails thus to transmit them, or who inten- tionally transmits a message sent or received to any person except him to whom it is addressed, or to his agent or attorney, is guilty of a misdemeanor."^ The proprietor of a telegraph is liable for all mistakes in transmitting messages made by any person in his employ- ment, and for all damages resulting from a failure to perform any other duties required by law.^ § 329. Louisiana. — Any operator, clerk, director, mes- senger, or other person in the employ of any telegraph com- pany having an office or station in this State, who shall refuse or omit to send or deliver any despatch or message, on which charges or fees shall have been paid or offered to be paid, or for the payment of which a contract shall have been made, or cause or direct to be detained or delayed such despatch or message in order to give precedence to a message or despatch subsequently brought to the office or station, or who shall in any way give precedence in time in sending or delivering any despatch or message belonging to a director, officer, or stockholder of such company or other person, over any despatch or message previously offered for trans- mission, or who shall reveal, make use of, or make public, any despatch or message, shall, on conviction, be fined not 1 la. Ann. Code, § 2100. « jb. § 2107. 8 lb. § 2108. OPERATION OP TELEGRAPH LINES. — STATUTES. 299 less than fifty dollars nor more than one hundred dollars, one half of which goes to the Charity IIosi)ital of New Orleans, and the other half for the use of the parish where the offence is committed.^ § 330. Louisiana {continued). — No operator or agent of any telegraph company shall be permitted to transmit any message which can in any way tend to defeat the ends of justice by preventing the apprehension of fugitives from justice, or by communicating such information as may enable persons charged with offences to escape. Any per- son so offending shall 1)0 imprisoned not less than twelve months nor more than two years at hard labor, and fined not less than two hundred nor more than five hundred dollars. 2 All telegraph companies shall be bound on application of any officer of this State or of the United States, in the event of any riot, insurrection, or resistance to public authority, or whenever it may be necessary for the prevention of crime or the apprehension of persons accused of crime or fleeing from justice, to give these communications immediate despatch. And if any officer, clerk, or operator shall refuse or inten- tionally omit to transmit such communications, or shall designedly alter or falsify the same for any purpose what- ever, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not exceeding one thousand dollars and imprisoned not longer than one year. It shall further be their duty to transmit all communications which are not immoral or contrary to law or public policy as are presented by persons offering to pay the usual rates therefor, and in the order in which the applications are made.^ § 331. Maine. — A person or company owning or using a line of telegraph, wholly or partly in the State, for any error or unnecessary delay in writing out, transmitting, or deliver- 1 La. Rev. Stat. § 921. 2 lb. § 922. » lb. § 923. 300 THE LAW OF ELECTRICITY. iiig a despatch within its delivery limits, making it less valuable to the person interested therein, is liable for the whole amount paid on such despatch. All despatches shall be transmitted in the order in which they are received, under a penalty of one hundred dollars, to be recovered by the person whose despatch is wilfully postponed. An operator or agent who designedly falsifies a despatch forfeits not less than twenty nor more than one hundred dollars, to be recovered in an action of debt; and in case of his avoidance or inability to pay such judgment, the person or company employing him forfeits a like sum ; and if such operator or agent wilfully divulges any part of the contents of a private despatch intrusted to him for transmission or delivery, he shall be fined not exceeding one hundred dollars, or imprisoned not more than three months.^ Nothing herein exonerates telegraph operators, agents, clerks, or other officers from liability for fraud committed or attempted by means of telegraphic communication, or the company from any liability existing at common law for the neglect or wrong-doing of such company or its agents. 2 § 332. Maryland. — Persons, associations, or corporations owning any telegraph line doing business within the State shall receive despatches from and for other telegraph lines, associations, and companies, and from and for any indi- vidual, and shall transmit such despatches in the manner estaljlished by the rules and regulations of such telegraph lines, and in the order in which they are received, with impartiality and good faith, under the penalty of one hundred dollars for every neglect or refusal to do so, to be recovered with costs of suit, in the name and for the benefit of the person or persons sending or desiring to send such despatch; provided, however, that arrangements may be made with the proprietors or publishers of newspapers for 1 Me. Rev. Stat., c. 53, § 1. 2 i^. § 0. OPERATION OF TELEGRAPH LINES. — STATUTES. 301 transmission of intelligence of general and public interest, for the purpose of publication, out of its order. ^ § 333. Massachusetts. — Every company shall receive de- spatches from and for other telegrai)h lines, companies, and associations, and from and for any person, and on payment of the usual charges for transmitting despatches according to the regulations of the company, shall transmit the same faithfully and impartially. For every wilful neglect or refusal so to do the company shall forfeit a sum not exceed- ing one hundred dollars, to be recovered in an action of tort by the person, association, or company sending or desiring to send the despatch.- Telegraph companies and associations shall receive, com- pute, and transmit despatches received at their office from other telegraph companies or by mail, at the same rates of charge as for despatches received for transmission from individuals in person at the same offices, bearing date of the day and at the place of the office where any such despatch is received. For every wilful neglect or refusal to comply with the foregoing provisions by a telegraph company or association, it shall forfeit a sum not exceeding one hundred dollars, to be recovered in an action of tort by the person, company, or association sending or desiring to send the despatch. ^ All persons, associations, and corporations engaged in the business of transmitting or receiving telegraphic messages for hire shall be liable and responsible in each case for all damages up to the amount of one hundred dollars actually caused by their negligence, or that of their servants or agents, in transmitting, receiving, or delivering such messages, and any limit of such liability or responsibility by contract or regu- lation shall be valid and binding only for the excess of such damages in each case above said sum of one hundred dollars.^ 1 Md. Pub. Gen. Laws, Art. 23, § 228. "•« INIass. Tub. St., c. 100. § 10. s lb. § 11. * Acts 1885, c. 380, § 1. 302 THE LAW OP ELECTRICITY. No action for the recovery of such damages shall be main- tained unless a claim therefor is presented in writing to such person, association, or corporation, or to some officer or agent thereof within sixty days of the time when such right of action accrues. ^ The provisions of this act do not apply to any negligence occurring in a telegraph office established for the conven- ience and safety of a railroad corporation in the running of its trains, and transacting a telegraph business only as inci- dental thereto, nor to any negligence in the delivery of messages received at any such office. ^ § 334. Michigan. — It is the duty of all telegraph com- panies incorporated either within or without this State doing business within this State, to receive despatches from and for other telegraph companies' lines, and from and for any individual, and on payment of their usual charges for indi- viduals for transmitting despatches as established by the rules and regulation of such telegraph companies, to trans- mit the same with impartiality and good faith. Such tele- graph companies are liable for any mistakes, errors, or delays in the transmission or delivery, or for the non- delivery of any repeated or non-repeated message, in damages to the amount which such person or persons may sustain by reason of mistakes, errors, or delays in the transmission or delivery, due to negligence of such company, or for the non-delivery of any such despatch, due to negligence of such telegraph company or its agents, to be recovered with costs of suit by the person or persons sustaining such damage. ^ It is likewise the duty of every such telegraph company to transmit all such despatches in the order in which they are received. In case such telegraph company shall refuse or neglect to so transmit such despatches, such telegraph com- pany is liable for all damages sustained by any person or 1 Acts 1885, c. 380, § 2. « Jb. § 3. 3 Acts 1893, No. 105, § 1. OPERATION OP TELEGRAPH LINES. — STATUTES. 303 persons whose desj)atch is postponed or delayed out of its order as herein prescribed, to be recovered as in the fore- going section; provided, liowever, that arrangements may be made with the proprietors or publishers of newspapers for the transmission, for the purpose of publication, of intelli- gence of general and i>ublic interest out of its regular order. ^ § 335. Minnesota. — In the transmission and delivery of messages, persons, companies, and corporations transmitting messages by telegrajJi lines are liable for want of ordinary care, any contract, notice, or condition to the contrary not- withstanding, and any notice, condition, or contract stipu- lating for exemption from consequences of lack of ordinary care shall be void.^ When the party to whom a message is addressed resides or docs business within the corporate limits of any city or village where a telegraph oflice is located, at the point of destination, the same shall be promptly delivered at his place of residence or business if known. In other cases he shall be notified by next mail where he can find same.^ Messages delivered to the owner or agent of any telegraph line operated in this State, in whole or in part, shall bo transmitted in the order in which they are received; pro- vided, howevei", that any message directing the movement of railroad trains, in case of sickness or death, and those relat- ing to the administration of criminal laws, and government despatches shall take precedence if the officer or person sending the same so request.* If any person, persons, company, or corporation owning or operating a telegraph line, in whole or part, within this State shall fail to transmit any message within a reasonable length of time, or if it is shown due diligence has not been exercised after reception thereof for that purpose, or shall 1 Acts 1893, No. 195, § 2. » G. S. 1S94, § 263G. 8 lb. §2037. * lb. §2(528. 304 THE LAW OF ELECTRICITY. fail to deliver the same to the party to whom the same is addressed, if known, as provided for in section three of this act, within a reasonable length of time after the same shall have arrived at the point of destination, they shall be liable to a civil action at the suit of the party injured, for all actual damages sustained by reason of such neglect or omission, with the legal costs of suit to be recovered in such action before any court having competent jurisdiction. ^ Any telegraph company delivering a message shall state plainly upon such message the date and the hour at which such message was received at the original point fortransmission.^ § 336. Mississippi. — Telegraph companies or associations are bound, on application of any officer of this State, or of the United States, in case of any war, insurrection, riot, or other civil commotion or resistance of public authority, or for the prevention and punishment of crime, or for the arrest of persons suspected or charged therewith, to give to the communications of such officers immediate despatch at the price of ordinary communications of the same length.^ A telegraph or telephone company must deliver all mes- sages 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 receives any message or matter for transmission, and fails, neglects, or refuses 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 is entitled to recover of the company in default the sum of twenty-five dollars in addition to damages for any injury.^ § 337. Missouri, — It is the duty of every telephone or tele- graph company, incorporated or unincorporated, operating any telephone or telegraph line in this State, to provide suffi- 1 G. S. 1894, § 2G39. ^ jb. § 2040. 3 Annot. Code, § 857. * lb. § 4326. OPERATION OF TELEGRAPH LINES. — STATUTES. 305 cient facilities at all its ofTices for the despatch of the busi- ness of the public, to receive from and for other telephone or telegraph lines, and from and for any individual, and on payment or tender of their usual charges for transmitting despatches, as established by the rules and regulations of such telephone or telegraph line, to transmit the same promptly and with impartiality and good faith under a penalty of two hundred dollars for any neglect or refusal so to do, to be recovered with costs of suit, by civil action, by the person or persons or company sending or desiring to send such despatch, one-half of the amount recovered to be retained by the plaintiff, and one-half to be paid into the county public-school fund of the county in which the suit is instituted ; and the burden of the proof shall be upon the company to show that the wire was engaged, as the reason for the delay in transmitting such despatch. ^ Every telephone or telegraph company organized under the laws of this State is liable for special damages occasioned by the failure or negligence of their operators or servants, in re- ceiving, copying, transmitting, or delivering despatches; and for the disclosure of any of the contents of any nrivate des- patches to any person other than to him to whom it is ad- dressed, or to his agent, they are liable to the sender of the despatch and to the person to whom it is addressed, in the sum of fifty dollars to each, recoverable by an action before a justice of the peace, and for all special damages in addition thereto.- § 338. Nebraska. — All telegraph companies and associa- tions operating telegraph lines in this State must transmit and forward all despatches directed to newspapers, or private individuals, or public oflficers with impartiality, in the order in which they are received, and use due diligence in their delivery without discrimination as to any person or party to whom they may be directed. ^ 1 Rev. Stat. :Mo. § 2725. 2 Mo. Txev. Stat. § 2729. 8 Comp. Stat. c. 89 a, § 5. 20 306 THE LAW OF ELECTRICITY. Every officer or employee of any telegraph company or association engaged in the transmission of despatches who shall wilfully delay the transmission or delivery of any despatch, or divulge the contents of any despatch intrusted to his or her care, to any person except the party entitled to receive the same, shall be guilty of a misdemeanor, and upon conviction shall be punished by fine of not less than fiftv dollars, nor more than one hundred dollars for each offence, or imprisonment of not less than thirty days nor more than three months in the county jail at the discretion of the court.^ If any telegraph company, association or organization, engaged in the transmission of telegraphic despatches from any place in this State, or the person having the control or management thereof, refuses to receive despatches from any person, corporation, or other telegraph company, or to trans- mit the same with fidelity and without unreasonable delay, it shall be guilty of a misdemeanor, and, upon conviction shall be fined for each and every offence in the sum of not less than fifty dollars nor more than one hundred dollars, and in addition be liable for damages to the person or cor- poration sustaining a loss by reason of such failure or refusal to so transmit.2 Any telegraph company engaged in the transmission of telegraphic despatches is liable for the non-delivery of despatches intrusted to its care, and for all mistakes in transmitting messages made by any person in its employ, and for all damages resulting from a failure to perform any other duty required by law, and any such telegraph company shall not be exempted from any such lial)ility by reason of any clause, condition, or agreement contained in its printed blanks.^ 8 339. Nevada. — Such line or lines of telegraph as avail 1 Comp. Stat. c. 89 a, § 6. ^ ib. § U. 8 Tb. § 12. OPERATION OF TELEGRAPH LINES. — STATUTES. 307 themselves of the provisions of this act are to be governed in all respects by the general laws of the State regulating telegraph lines, do the business of side lines, and transmit all despatches in the order in which they are received, under the penalty of one hundred dollars, and all damages sus- tained thereby, to be recovered, with costs of suit, by the per- son or persons whose despatch is postponed out of its order, provided that arrangements may be made with publishers of newsi)apers for the transmission of intelligence of public and general interest out of its order; and provided further that preference may be given to official despatches for the detection and capture of criminals. Messages on public business may be sent by the State of Nevada over such line free of charge. ^ By another section it is the duty of any telegraph company doing business in this State to transmit all despatches in the order in which they are received, under the penalty of one hundred dollars, to be recovered with costs of suit by the person or persons whose despatch is postponed out of its order, provided that communications to and from public officers on "official business may have precedence over all other communications ; and provided also that intelligence of i)ublic and general interest may be transmitted for publication out of its order. 2 § 340. New Jersey. — Any telegraph or telephone company is prohibited from knowingly carrying any message or mes- sages that shall further or promote the interest of unlawful pursuits, or in any way enable any person or persons to carry on any business or pursuit declared unlawful by the statutes of New Jersey.^ Any company, person, or corporation carrying such message is deemed guilty of a misdemeanor, and upon conviction may be punished by a fine of one thousand dollars.* 1 Gen. Stat. Nev. § 919. See also § 925 for fine. a Gen. Stat. § 941. As to New Hamp.shire see Pub. St. c. SI, § 13. » New Jersey, Acts 1894, c. 48, § 1. * lb. § 2. 308 THE LAW OF ELECTRICITY. § 341. New York. — Every such corporation, telegraph and telephone, shall receive despatches from and for other telegraph and telephone, lines or corporations, and from or for any individuals, and on payment of the usual charges by individuals for transmitting despatches, as established by the rules and regulations of such corporations, transmit the same with impartiality and good faith, and in the order in which they are received; and if it neglects or refuses so to do, it shall pay one hundred dollars for such refusal or neglect to the person or persons sending or desiring to send any such despatch, or entitled to have the same so trans- mitted; but arrangements may be made with the publishers of newspapers for the transmission for publication of intelli- gence of general and public interest out of its regular order. ^ § 342. Ohio. — Every company incorporated or unincorpo- rated, operating a telegraph line in this State must receive despatches from and for other telegraph lines, and from and for any individual ; and on payment of its usual charges for transmitting despatches as established by the rules and regulations of the company transmit the same with impar- tiality and good faith, under a penalty of one hundred dollars for each case of neglect or refusal so to do, to be recovered with costs of suit by civil action in the name and for the benefit of the person or company sending or forwarding or desiring to send or forward the despatch. ^ Every telegraph company, incorporated or unincorporated, operating any telegraph lines in this State, must transmit and deliver all despatches in the order in which they are received, for transmission or delivery under the like penalty of one hundred dollars, as provided in section thirty-four hundred and sixty -two ; but arrangements may be made with 1 New York, Acts 1890, c. 5G6, art. 103. 2 Rev. Stat. (Smith & Ben.), § 3462. These sections apply also to telephones, § 3471. OPERATION OP TELEGRAPH LINES. — STATUTES. 309 the proprietors and publishers of newspapers for the trans- mission, for the purpose of publication, of intellij^cnce of general and public interest out of its regular order, and dcsjiatches by officers of the State or the United States on public business may have preference over all private busi- ness when the public interest requires such preference. No company shall be required to deliver despatches at a greater distance from the station at which they are received than its published regulations require; and if an applicant direct a desi)atch to be mailed at the i)lace of delivery, and offer to pay the necessary postage thereon, the company shall affix the necessary postage stamp, and mail the despatch in time for the first mail that departs after such despatch is received at the office of delivery; and for the omission so to do, the company shall be liable to a like penalty as provided in section thirty-four hundred and sixty -two. ^ § 343. Oregon. — In consideration of the right of way over public property, every telegraph company shall be bound, on application of any officer of this State, or of the United States, in case of any war, insurrection, riot, or other civil commotion or resistance of public authority, for the preven- tion and punishment of crime, or for the arrest of persons suspected or charged therewith, to give to the communica- tions of such officers immediate despatch, at the price of ordinary communications of the same length; and if any officer, agent, operator, or employee of any such company shall refuse or wilfully omit to transmit such communica- tions as aforesaid, or shall designedly alter or falsify the same, for any purpose whatever, the person so offending shall be liable to indictment, and on conviction may be fined or imprisoned at the discretion of the court. ^ § 844. Pennsylvania. — The various telegraph companies within the limits of this State are required to receive and 1 Rev. Stat (Smith & Benn.), § 346.3. 2 Oreg. Hill's Annot. Laws, § 2000. 310 THE LAW OF ELECTRICITY. forward over their lines all messages that may be offered for transmission by individuals or incorporated companies, provided the parties offering such messages or despatches tender for the transmission thereof the amount of the usual fee for such transmission. And in case of a re- fusal or neglect on the part of any of the agents of any of the telegraph lines in this State, to send or receive in their regular order, except as hereinbefore excepted, such messages or despatches, the company is liable to a fine of one hundred dollars for each and every mes- sage so refused or neglected, to be sued for and recovered before any justice of the peace of this Commonwealth, as debts of like amount are recovered, the one-half of said fine to go to the State, and the other half to the parties suing for the same ; and provided further that in any suit to be brought fur the recovery of said fine, notice served on the president, director, agent, or either of them, shall be sufficient.^ § 345. Tennessee. — In consideration of the right of way over public property, every telegraph company must in the case of war, insurrection, or civil commotion of any kind, and for the arrest of criminals, give immediate despatch at the usual rates of charge to any message connected therewith of any officer of this State or of the United States ;2 and any officer or agent of a telegraph company who fails or refuses to carry out the provisions of this section is guilty of a misdemeanor.^ All other messages, including those received from other telegraph companies, must be transmitted in the order of their delivery correctly and without unreasonable delay, and shall be kept strictly confidential.* Any officer or agent of a telegraph company who wilfully violates either of the provisions of this clause is guilty 1 Bright. Purd. Dig. p. 1C29, § 11. = Code, § 1539. 8 lb. § 1540. * lb. § 1541. OPERATION or TELEGRAPH LINES. — STATUTES. 311 of a misdenicanor, and he and the telegraph company or jiroprietor are also liable in damages to the party aggrieved.^ § 346. Virginia. — It IS the duty of every telegraph and telephone company doing business in tliis State to receive desj)atchcs from and for other telegraph or telephone com- panies or lines, and from and for any person, and upon the payment of the usual charges therefor, according to the regulations of the company to transmit the same, faithfully and inipartially, and as promptly as practicable, and in the order of delivery to the said company. For every failure to transmit a despatch faithfully and impartially, and for every failure to transmit a despatch as promptly as practicable, or in the order of its delivery to the company, the company shall forfeit the sum of one hundred dollars to the person sending or wishing to send such despatch. But nothing herein shall prevent such company from giving preference to despatches on official business, from or to officers of the United States, or the State of Virginia, or from making arrangements with proprietors or publishers of newspapers, for the transmission to them for publication of intelligence of general and public interest out of its regular order. ^ It is also the duty of a telegraph or telephone company, upon the arrival of a despatch at the point to which it is to be transmitted by said company, to deliver it promptly to the person to whom it is addressed, where the regulations of the company require such delivery, or to forward it promptly as directed, when the same is to he forwarded. For every failure to deliver or forward a despatch as promjjtly as practicable, the company shall forfeit one hundred dollars to the person sending the despatch, or to the person to whom it was addressed. § 347. "Washington. — It is the duty of any telegraph com- 1 Code, § 1542. a Va. Code, § 1291. 8 lb. § 1292. 312 THE LAW OF ELECTRICITY. pany doing business in this State to transmit all despatches in the order in which they are received, under the penalty of one hundred dollars, to be recovered with costs of suit, by the person or persons whose despatch is postponed out of its order, provided that communications to and from public officers on official business may have precedence over all other communications; and provided also that intelligence of general and public interest may be transmitted out of its order. 1 In case of the refusal or neglect of any telegraph or telephone company to comply with the provisions of these statutes, the penalty for the same shall be a fine of not more than five hundred nor less than one hundred dollars for each offence. ^ § 348. "Wisconsin. — Any person, association, or corpora- tion operating or owning any telegraph line doing business in this State is liable for all damages occasioned by failure or negligence of their operators, servants, or employees, in receiving, copying, transmitting, or delivering despatches or messages.^ § 349. Summary. — There are several main features of importance which may be gathered from a careful study of the foregoing statutes; first, that in almost every instanee the order of transmission prescribed by the statute is the order in which the messages are received at the sending office. In a few statutes, however, there are express excep- tions to this order in favor, — (a) Of messages sent by gov- ernment officials, or officers of justice in cases of war, riot, or the prevention of crime, or the arrest and punishment of criminals. This exception exists in Arkansas, California, Connecticut, Indiana, Louisiana, Minnesota, Mississippi, Nevada, Ohio, Oregon, Tennessee, Virginia,^ (b) Another exception occurs in some States whereby arrangements may 1 Hill's Stats. & Codes, § 1551. ^ lb. § 15G4. 8 San. & Berr. Ann. Stat. § 1770 b. * See statutes, supra, & post, § 405. OPERATION OF TELEGRAPH LINES. — STATUTES. 313 be made for giving priority of transmission to news of public and general interest intended for publication in newspapers. Such an exception exists in Arkansas, California, Connecti- cut, Georgia, Indiana, Maryland, Nevada, New York, Ohio, Virginia, and Washington. ^ Second, that in many States the statutes prescribe that the messages shall be transmitted "with good faith and impartiality," while in others no use is made of these words. This phrase is important in view of many decisions of the courts, which will be subsequently ex- amined, in regard to the effect given these statutes when con- strued by the courts.^ Third, that in many cases a penalty is imposed for neglect of the duty imposed by the statutes, while in other cases a company is made liable for the actual damages caused by the breach of the statutory duty. This fact has, in effect, divided the actions against telegraph comjianies into two great classes: first, actions for the penalty; and second, actions for damages. These different species of actions will be discussed at length hereafter.^ In general, it may be said that the importance of the statutes given above cannot be overestimated in their effect upon the liability of telegraph companies for negligence, as these statutes confer on telegraph companies a public character, which has been heretofore adverted to, which renders them liable for negli- gence in the transaction of their duties, even to those sustaining no contract relation with the company. This liability depends, it is believed, wholly upon these statutes relating to the telegraph company, for, in England, where such statutes do not exist, the telegraph company is held not liable to any action by a person to whom the message is sent, as will be shown later.* ^ See statutes supra, passim. * Post, §§ 404-428. * Post, cc. xxiv.-xxvi. * Post, ch. xxiii. 314 THE LAW OF ELECTRICITY. CHAPTER XVI. DUTY OP ACCEPTANCE OF MESSAGE. § 350. Duty of Company to receive Messages. 351. Obligatiou coufiiied to Scope of § 362. Business. 363. 352. Criminal and Immoral Messages. 364. 353. Gambling Transactions. 354. Transmission of Messages on 365. Sunday. 366. 355. Telegraph Offices may be open on Sunday. 367. 356. Ordinary Business Messages, not 368. to be sent on Sunday. 369. 357. Contract of Transmission made on Sunday vuid. 370. 358. Penal Statutes. 37 L 359. Messages of Charity and Neces- sity. ' 372. 360. Nature of the Necessity. 373. 361. Messages relating to Sickness 374. and Death are Works of Charity or Necessity. Messages to Doctors. Messages to Lawyers. What are not Works of Ne- cessity. Sunday Delivery. Nece.'isity caused by Sender's In- advertence. Burden of Proof. Waiver of Sunday Law. Company may require Written Message. Waiver of Writing. Waiver of requiring Use of Blanks. Pre-pay ment of Toll. Pre-payment of Answer. Eeasonable Pules. 350. Duty of Company to receive Messages. — The duty of a telegraph company, as declared in the statutes set forth in the foregoing chapter, as well as arising from the public character of its occupation, is to receive messages from all persons for transmission, without discrimination. ^ There are however, certain limitations to this duty and oljligation.^ ^ State, Trenton & New Biiinswick Turnpike Co. v. American & Euro- pean Commercial News Co., 43 N. J. L. 381, 384 ; Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14; and .see statutes supra, §§ 320-349. 2 The company may make reasonable rules as to where messages must be presented for transmi.s.sion. A regulation often printed upon the blanks of the company, is to the effect that no responsibility regarding me.ssages attaches to the company until the same are presented and accepted atone of its transmitting offices, and if a message is sent to such office by one of the company's messengers, he acts for tliat purpose as the agent of the DUTY OF ACCEPTANCE OF MESSAGE. 315 § 351. Obligation confined to Scope of Business. — The tele- graph coiupaiiy is only obliged to ofier its facilities to the I)ul)lic in that branch of telegraphic business for which it is chartered, and for which it has i)rovided instruments and facilities. It is not obliged, at the request of any indi- viduals or other corporations, to engage in a distinct branch of business which it does not desire to undertake.^ § 352. Criminal and Immoral Messages. — The duty of a telegraph company to receive messages from the public does not include criminal or immoral messages or messages which arc intended to aid and abet the furtherance of criminal designs or immoral proceedings. Messages of this character a telegraph comi)any has a right to refuse to accept for transmission, and no liability is incurred by such refusal or by failure to transmit after receipt.^ This principle is embodied in the statutes in Kentucky, Louisiana, Nevada, and New Jersey.^ It would be the duty of the telegraph company to refuse to receive such desi)atches if, upon their face, they carried evidence of the purpose for which they are sent; but it is not the duty of the telegraph company to sender. Such a regulation is a reasonable one, and a person who writes a message upon one of the blanks containing it, and delivers it to a messen- ger boy of the telegraph company, is bound by it, and if the boy does not present it at the transmitting station for transmission, the telegraph com- pany incurs no liability. Stamey r. Western Union Telegraph Co., 18 S. E. Rep. 1008. The telegraph company may, also in proper cases, exer- cise a discretion as to what office it will receive messages at for transmis- sion. Thus if the company has two offices in the same place, each near the centre of the town, and only about eighty yards apart, from one of wliich offices a line runs directly to the place of destination of the tele- gram, wliile from the other the line is indirect and much longer, the tele- graph company may lawfully refuse to receive the message at the office of tlie longer line, if it states the reason at the time of refusal, and informs the person desiring to send tlie message of the other office from which it can be sent more directly. Western Union Telegraph Co. r. Wilson, 108 hid. 308. 1 See supra, §§ 201-294. ^ Western Union Telegraph Co. v. Ferguson, 57 Ind. 495. 8 See statutes, supra, §§299, 329, 339, 340. 316 THE LAW OF ELECTRICITY. investigate into the purposes or meaning of despatches delivered to it for transmission, and if a message is, in its hmguage, free from profanity or indecency, or evidences of criminal intent, the telegraph company may, and it seems nuist, in the absence of extrinsic knowledge of the true character of the message, receive it for transmission. ^ § 353. Gambling Transactions. — A diversity of opinion exists as to whether, if a message in its language bears open reference to transactions in the nature of futures, or similar gambling transactions, the telegraph company which has accepted it for transmission, and received its fee there- for, but has negligently performed its duties, can defend in a suit based on such negligence, by alleging the illegal and immoral character of the message. Thus it has been held that in an action to recover the statutory penalty for a failure to deliver a telegram with due promptness, the fact that the contents of the telegram related to a sale of futures, which was an immoral transaction, but not illegal in the State where the message was sent, was not a bar to the action. In this case the messages were " Shall I draw for more bonus? Answer quick," and "If necessary draw for more bonus." The court distinguishes the case from actions brought on messages transmitted on Sunday,^ and while approving the principle of Ferguson's case,^ says that it is not illegal for a telegraph company to receive and transmit messages relating to speculative transactions in futures where that class of business has not been made penal by statute.^ On the other hand, messages relating to similar transactions have been held to be so far illegal in their nature that a tele- graph company is not liable for failure to transmit thcm.^ 1 Western Union Telegraph Co. v. Ferguson, 57 Ind. 495 ; Gray v. Western Union Telegraph Co., 87 Ga. 350. 2 See post, §§ 354-368. s Supra, § 352. ■* Gray v. Western Union Telegraph Co., 87 Ga. 350. ^ Bryant v. We.stern Union Telegraph Co., 17 Fed. Rep. 825; Smith V. Western Union Telegraph Co., 84 Ky. 604. DUTY OF ACCEPTANCE OF MESSAGE. 317 § 3o4. Transmission of Messages on Sunday. — A kindred subject is the transmission of messages on Sunday. Ju almost all the States of the Union, Sunday is regarded as a day upon Avhich the ordinary occupations of life are to be omitted, and the day set apart as a day ujjon -which no work shall be carried on except of charity and necessity, and as a corollary to this })rinciple contracts made on Sunday are held void, except when they relate to works of charity or necessity. There are also generally statutes prohibiting the carrying on ordinary occupations on Sunday. § 355. Telegraph OfEces may be open on Sunday. — The telegraph business, however, is not an ordinary occupation. It is a public benefit, and is of absolute necessity to the civilized world. Telegraph companies are therefore per- mitted to keep open their offices for the transmission of messages on Sunday, because there are emergencies requir- ing that messages be transmitted on that day. It is often of the highest importance and most serious moment that mes- sages should be received and transmitted on Sunday, and in many instances the transmission of a message on Sunday may be necessary to prevent great loss, and even to save life, and therefore the business of telegraphy cannot be brought under the same rules as that of a farmer, mechanic, or merchant. 1 But it is believed that the telegraph company could not be required to keep its offices open on Sunday, nor would it forfeit its franchise by closing its offices on that day. § 3o6. Ordinary Business Messages not to be sent on Sunday. — Although a telegraph company may keep its office open on Sunday, yet it cannot be required to send an ordinary busi- ness despatch on Sunday, and by refusing to receive or send it, the telegraph company incurs no penalty or liability. ^ i Western Union Telegraph Co. v. Yopst, 118 Ind. 251; and see cases post, §§ 3o!)-368. '■^ Thompson v. Western Union Telegraph Co., 32 Mo. App. 191; Bur- 318 TnE LAW OP ELECTRICITY. Ill the case of Thompson v. "Western Union Telegraph Com- pany, 32 Mo. App. 101, the facts were that a statute imposed a penalty upon any telegraph operator for not informing a person applying to send a despatch that the line was not in working order, or that despatches already on hand would pre- vent transmission within the required time, as the case might be. The plaintiff offered a despatch on Sunday evening, and inquired whether it could be sent on that day. The operator said it could; but this information was, in fact, false, for the office of destination was not open on Sunday night, and the despatch was therefore delayed. The court held that the statute only covered cases where application was made for the transmission of a message which could lawfully be transmitted, and therefore the telegraph company did not incur a penalty by the false information above stated, for no application could be said to have been made under the statute. § 857. Contract of Transmission made on Sunday void. — Even if the telegraph company receives an ordinary business message not of charity or necessity for transmission on Sunday, and is paid its charge therefor, it is generally held that the contract of transmission entered into between the sender and the company is void, since the general rule applies to such transactions, holding all contracts made on Sunday, except when relating to works of charity or necessity, to be void, and the telegraph company incurs no liability on the contract for negligence, error, or delay in transmitting the message.^ And for the same reason, the telegraph company incurs no liability in tort for error or nett 17. Western Union Telegraph Co., 39 Mo. App. 612; Western Union Telegraph Co. r. Hntcheson, 91 Ga. 252; Willingham v. Western Union Telegraph Co., lb. 449. 1 Rogers V, Western Union Telegraph Co., 78 Tnd. 170 ; Western Union Telegraph Co. v. Yopst, 118 Tnd. 248; Western Union Telegraph Co. v. Griffin, 1 Tnd. App. 50; Western Union Telegraph Co. v. Hutcheson, 91 Ga. 252; Willingham v. Western Union Telegraph Co., 91 Ga. 449. DUTY OF ACCEPTANCE OF MESSAGE. 319 delay in trfinsniitting the message, since there is no legal duty u})on it to transmit such messages on Sunday.^ In one or two cases, however, it has been held that if the telegrajjli com})any accepts the message for transmission and receives the fee therefor, and then is guilty of negligence in the transmission or delivery of the message, it has waived the defence of the Sunday laws, and can be held liable for its negliircnce.2 §358. Penal Statutes. — The same rules as to Sunday messages a})ply to actions to recover penalties under statutes, since in such actions the plaintiff relies either upon a con- tract formed on Sunday for the transmission of the message, or upon nn alleged duty to transmit messages which only extends on Sunday to messages of charity or necessity. In either event, therefore, the plaintiff cannot recover the penalty unless he shows that the telegram was a work of necessity or charity, ^ unless, indeed, by statute, in cases where telegraph companies voluntarily engaging in general business on Sunday are estopped to set up the Sunday laws as a defence.* § 359. Messages of Charity and Necessity. — A large portion of the messages sent over the telegraph lines are, however, messages of such a character as to fall within the exception of the Sunday laws, as being messages of charity and neces- sity, and as such messages may lawfully be transmitted on Sunday, the contract for such transmission is valid, and the telegraph company may be held lial)le for its breach on the same principles as are discussed at length in the succeeding chapters.^ The question whether a message is of such a ^ Cases supra, p. 318, note 1. 2 Western Union Telegraph Co. v. McLaurin, 70 Miss. 2G. See post, §368. 8 Rogers i'. Western Union Telegraph Co., 78 Ind. 169. * Bassett r. Western Union Telegraph Co., 48 Mo. App. 566. See post^ § 368. * Post, cc. xvii. toxxviii. 320 THE LAW OP "electricity. nature as to be within this exception is for the court, and while the coui-ts will not, as a matter of law, declare that the business of telegraphy as a whole is a work of necessity, nor that all contracts for the transmission of telegraphic messages are to be deemed within the exceptions of the Sunday laws, yet there are many cases in which the sending and delivering of a message is, without question, a work of necessity within the meaning of the statutes. Whether the message in question is within the exception must be deter- mined in each case from the language of the message, as explained by the facts of the case.^ The court, in deciding whether a message is or is not a message of charity or neces- sity, is not limited to the message alone, but may examine all the facts relating to the sending of the message. ^ Often the message itself shows from its very language that it is a work of necessity,^ e. g.^ " My daughter is very sick. Come at once. " ^ § 360. Nature of the Necessity. — In regard to the charac- teristics which will render a message so far a work of necessity or charity as lawfully may be sent on Sunday, there need not be an absolute or physical necessitj^, but a moral fitness or propriety of the work or labor done, under the circumstances of any particular case.^ Thus it has been held that a message which is necessary to prevent serious loss or to protect property may lawfully be sent on Sunday. ^ So it has been said that messages designed to relieve suffer- ing, avert harm, and prevent serious loss are messages of charity or necessity.'' In another case it was said there may be such a thing as "social necessity."^ 1 Rogers v. Western Union Telegraph Co., 78 Ind. 169. 2 ibj^j 8 Western Union Telegraph Co. v. Griffin, 1 Ind. App. 50. 4 See/)os^§361. s Burnett v. Western Union Telegraph Co., 39 Mo. App. 613; Flagg V. Millbury, 4 Cush. 213; Western Union Telegraph Co. v. Yopst, 118 Ind. 248; We.stern Union Telegraph Co. v. McLaurin, 70 Miss. 31. 6 Western Union Telegraph Co. v. Yopst, 118 Ind. 248. ' Ibid. 8 Western Union Telegraph Co. v. McLaurin, 70 Miss. 31. DUTY OF ACCEPTANCE OF MESSAGE. 321 § 301. Messages relating to Sickness and Death are Messages of Charity or Necessity. — It is uniformly lield that any tele- grai)hic message relating to or concerning the illness or death of any person in whom either party to the telegram is interested by relationship or friendship, is a work of charity and necessity within the exception of the Sunday laws.^ Thus a message relating to the burial of one's wife is a message of necessity, and as such can be sent on Sunday. ^ In the case last cited it appeared that the plaintiff's wife and child both died, and that the plaintiff, being in strait- ened circumstances among strangers, and in need of pecuni- ary assistance about the funeral obsequies of his wife, and desirous of removing the corpse to a different place for inter- ment, and requiring the assistance of his father for this purpose, and also desiring the help and comfort of his wife's mother, both living in a town at some distance, delivered to the telegraph company a message addressed to the father summoning them to his assistance. The day on which the telegram was delivered to the company was Sunday, and the message was transmitted to the town where the addressee lived, but the only effort made by the messenger of the tele- graph company to deliver it was to go three times to the place of business of the plaintiff's father. No effort was made to deliver it at his residence, although he was there most of the day. The court in an action by the sender of the message said that the message was necessary to secure decent interment for the deceased wife and the presence of the relatives, and that the jury should have been instructed that a contract to do things necessary to such an end was a contract to do a work of charity and necessity, and therefore valid. 3 So also a telegraphic message informing a son that his father was dead, and requesting the son to come home, is 1 AVestern Union Telegraph Co. v. Wilson, 93 Ala. 32. 2 Gulf, Colorado & Santa Fe Ry. Co. v. Levy, 59 Tex. 5i2. 8 Ibid. 21 322 THE LAW OF ELECTRICITY. such a work of necessity as renders the contract for trans- mitting Talid, though made on Sunday. ^ So a message sent by one tft allay the anxiety which might be caused to his wife by an absence from home beyond the time he had appointed, is a work of necessity or charity, and such a message may legally be sent on Sunday if the tele- graph office is open on that day.^ § 362. Messages to Doctors. — Owing to the importance of securing medical advice and assistance in cases of illness, it is universally held that messages to and from doctors relat- ing to the rendering of professional services, are messages of necessity which may be transmitted even on Sunday. ^ § 363. Messages to Lawyers. — There does not seem to be as much uniformity in regard to messages to attorneys. The facts of each case must be investigated, and the court will say whether, as a matter of law, the emergency was sufficient to render the message a message of charity or necessity. In one case where a message was sent on Sunday to get counsel to defend a homicide, and the message was not delivered, and the attorney, thus losing his employment, brought suit to recover the fees to which he would have been entitled had he been employed, the court held that the message was a message of necessity, and the plaintiff might recover.* In this case the message was "Metcalf has killed Dwyer. Come on first train. Good fee for defence." The court held that the necessity might be either that of the sender or of the sendee. In this case, however, the court placed the recovery upon the ground that, the telegraph company having accepted the message for transmission and transmitted it, the negligence being in the delivery, the company had waived the defence of the Sunday laws.^ 1 Western Union Telegraph Co. v. Wilson, 93 Ala. 32. 2 Burnett v. Western Union Telegraph Co., 39 Mo. App. 612. 8 Western Union Telegraph Co. v. Griffin, 1 Tnd. App. 46. * Western Union Telegraph Co. v. McLaurin, 70 Miss. 26. 6 Ibid. DUTY OF ACCEPTANCE OF MESSAGE. 323 § 864. What are not "Works of Necessity. — An Ordinarv business message, even thuugii it may relate to important matters, is not necessarily a work of necessity.^ For instance, the following message, "Bring 840 if you want report," was held not to be a message of charity or necessity, it being shown that it was merely a message from a stenographer notifying counsel that a typewritten report of a case had been copied out, and was ready for them if they desired it, and that the report had been ready for some time previously, during which time a message could just as well have been sent.^ Where the message was " Come up in the morning. Bring all," the court held that it could not, as a matter of judicial construction, say that this message was one of necessity or charity. On its face it appeared to be merely a friendly invitation, and if there were facts showing that it Avas a message of necessity or charity, these facts should have been shown by the plaintiff. ^ A message from a son to his mother, stating that he and a friend will be at home to dinner on Sunday, is not a work of charity or necessity,* and the action may be dismissed on demurrer if the character of the message appears on the declaration.^ § 365. Sunday Delivery. — If the message IS One of charity or necessity, and the company receives it for transmission, it is not excused from delivery on Sunday by the fact that the sendee had notified the company not to deliver telegrams at his house on Sunday. "^ § 366. Necessity caused by Sender's Inadvertence. — Though the necessity for sending the telegram on Sunday may have ^ Thompson v. Western Union Telegraph Co., 32 Mo. App. 191. 2 Western Union Telegraph Co. v. Yopst, 118 Ind. 218. 8 Rogers v. Western Union Telegraph Co., 78 Ind. 169. * Western Union Telegrapli Co. r. Ilutcheson, 91 Ga. 252. 6 Williugham i-. Western Union Telegraph Co., 91 Ga. 449. « Brashears i'. Western Union Telegraph Co., 45 Mo. App. 444. 824 THE LAW OF ELECTRICITY. been caused by a lack of perception, or even prior negligence on the part of the person sending it, who might, by fore- sight, have sent it on Saturday, yet this fact will not render the message less one of necessity, for the moral necessity may exist, although it is produced by the sender's own acts. 1 § 367. Burden of Proof. — The question, on whom the burden of proof lies of showing that the message is within the exceptions to the Sunday laws, has been discussed in several cases, but the result is not very satisfactory. The leading principle seems to be that the plaintiff suing a tele- graph company for negligence must allege and prove all the facts which are necessary to make out his case, and that if the statement of the day on which the message was delivered to the telegraph company for transmission is a part of his case as identifying the message, or otherwise, he must, if this day was Sunday, show that the message was a work of charity or necessity. ^ If, however, the message by its very language shows that it was a work of necessity or charity, this is sufficient to throw the burden of proof upon the defendant to excuse its negligence.^ Moreover, if, as in some States,* the statutes provide that any person or corporation which voluntarily engages in business on Sunday cannot defend actions of negligence by interposing the Sunday laws ; then if the plaintiff alleges a delivery of the message on Sunday for transmission, and also inserts allegations showing that the company was voluntarily engaging in business on that day, this makes out a prima facie case, and it is incumbent upon the telegraph company to show that it was doing busi- 1 Burnett V. Western Union Telegraph Co., 39 Mo. App. 612. 2 Bassett v. Western Union Telegraph Co.,4SMo. App. 566; Western Union Telegraph Co. v. Yopsfc, 118 Ind. 248; Rogers v. Western Union Telegraph Co., 78 Tnd. 160; Western Union Telegraph Co. v. Griffin, 1 Ind. App. 50; Western Union Telegraph Co. v. Wilson, 93 Ala. 32. 8 Western Union Telegraph Co. v. Wilson, 93 Ala. 32. 4 See post, § 368. DUTY OF ACCEPTANCE OF MESSAGE. 325 ncss only in the transmission of messages of charity and necessity.^ In any event, the plaintiff must show that the telegraph company knew that the sending of the message was a work of charity or necessity. It may gain this infoi- mation either from the language of the message or from facts stated to it at the time of the delivery of the message to it for transmission. 2 § 3G8. "Waiver of Sunday Law. — The view Is advanced by a few cases that if a telegraph company accepts a message on Sunday for transmission, and takes pay therefor, it cannot under these circumstances be heard to sav, in defence of its own negligence in transmitting the message, that it ought not to have taken it for transmission because it was offered on Sunday, for such a defence would in effect be alleging its own wrong-doing in one respect as a defence for its own wrong-doing in another, and cannot be a valid defence ;2 but this view is not in accordance with the majority of the decisions, and is not on principle correct, for the Sunday laws are not intended as a personal privilege, ])ut for the good of the whole community.* In some States, however, by statute, persons or corporations engaging voluntarily in general business on Sunday are prevented from setting up the defence of the Sunday laws.^ But a telegraph company by keeping its office open on Sunday does not necessarily engage in a general telegraphing business on that day. It may be open only for messages of charity or necessity,^ but prima facie it is open for general business. § 369. Company may require Written Message. — Alth0U!2'h a telegraph company is bound to accept messages from all 1 Bassett v. Western Union Telegraph Co., 48 Mo. App. 568. - Western Union Telegraph Co. i'. Griffin, 1 Ind. App. 50. 8 Burnett v. Western Union Telegrapli Co., 39 Mo. App. 615; West- ern Union Telegraph Co. i\ McLaurin, 70 Miss. 26. * See 071^6, § 357. 6 Bassett y. Western Union Tdu'^rapli Co., 48 Mo. App. 569. « Ibid. 326 THE LAW OF ELECTRICITY. the public without discrimination, for transmission over its lines, vet it may make reasonable regulations for the con- duct of its business, and for its own protection, and as one of these it may require that the messages which are pre- sented to it for transmission shall be in writing, and even that they shall be written upon the blank printed forms furnished by the company for this purpose, and containing restrictions and stipulations concerning the liability of the company. 1 And such a regulation is generally preva- lent in the business of all telegraph companies at the present day. § 370. Waiver of Writing. — The telegraph company, how- ever, may, by its dealings with a customer, so act as to be estopped from defending a suit on the ground that its regu- lation as to writing was not complied with.^ Thus if the telegraph company, at any particular ofhce, establishes the custom of receiving oral messages, and does its business by this method, it will be held to its usual liability as if the message had been in writing. ^ So, if a telegraph company, in its dealings with a particular customer, habitually receives from him oral messages, it cannot defend a suit brought for its negligence in transmitting a message on the ground that the message was not in writing, nor can it, in such a case, set up the stipulations which are contained in its printed blanks, and which are known to the customer, if, as a matter of fact, the jury find that the dealings of the parties consti- 1 Western Union Telegraph Co. v. Dozier, 67 Miss. 288; Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14. •^ Western Union Telegraph Co. v. Dozier, 67 Miss. 288; Western Union Telegraph Co. v. Stevenson, 128 Pa. St. 442. 3 Western Union Telegraph Co. v. Dozier, 67 Miss. 288 ; Texas Tele- graph & Telephone Co. v. Seiders, 29 S. W. Rep. 258. Cf. Southwestern Telegraph & Telephone Co. v. Dale, 27 S. W. Pvep. 1059. And it would seem that accepting a message orally for transmission, and receiving pay therefor, would bind the company to transmit the message with due care, even though the rules of the company forbid operators to waive any rules. See post, § 371. DUTY OF ACCEPTANCE OF MESSAGE. 327 tutc a waiver of these stipulations.^ Thus in the case cited the facts were tliat the ])laintiff company had an arrangement witli the defendant for sending his tclcgra})liic messages relating to the oil market. The defendant was a heavy operator in oil, and bought and sold through his agents in New York, Chicago, and other places, and for this purpose found it necessary to send numerous despatches. The plain- tiff's office was in the Oil Exchange Building, and defendant established an office in the same building outside of the room of the Oil Exchange. The defendant was accustomed to send his messages to plaintiff company's operator by a messenger boy, who took them out of the Oil Exchange room, and delivered them to the operator in the room adjoining. In order to obviate the inconvenience of having a messenger boy running to and fro between the offices, the telegraph company put a speaking tulje from its operators' room in the oil exchange, and the defendant used this for the transmis- sion of his messages. A large bill for thc^c messages having been incurred by the defendant, the plaintiff company requested him to settle it, but he claimed a set-off of damages incurred by him by reason of erroneous transmis- sion of two messages by plaintiff's operators. The plaintiff company refused to allow him this reduction, claiming that he was familiar with the printed regulations on the blank form of telegram, and was, therefore, bound by knowledge of the regulations, one of which was that unrepeated messages were sent liable to any errors, and the company should not be responsible for them. The court held that the repeating regulation in the telegraph blanks was a reasonable one, and ])ound a sender of messages if he was acquainted with it, but that in this case the service given by the plaintiff company to the defendant was of so unusual a character, and so differ- ent from the ordinary sending of telegraph messages, that the jury might fairly infer that the telegraph company had 1 Western Union Telegraph Co. v. Stevenson, 128 Pa. St. 442. 328 THE LAW OF ELECTRICITY. waived its right to rely upon the regulations which governed it as to ordinary sending of telegrams on the printed blanks, and that from its establishing a speaking tube and receiving messages orally, such an inference might be drawn by the jury, and as they had found in favor of the defendant in his claim for set-off, the court must assume that this was the case. § 371. Waiver of requiring Use of Blanks. — Although a telegraph company may have a rule that messages must be written upon its blank printed forms, yet if the message is received by the operator on an ordinary piece of paper from a person not knowing of this rule, and the charges for transmission are paid, the company will be responsi- ble for duly transmitting the same, even though by its rules its operators are forbidden to waive any of its regu- lations or stipulations. 1 The effect of receiving messages on ordinary paper or orally, so far as it concerns the validity of the regulations of the telegraph company, will be con- sidered later. 2 § 372. Pre-payment of Toll. — Another condition precedent which a telegraph company may require of every person offer- ing it a message for transmission is the payment or tender of the usual rates for the transmission of such messages. This is in many States, by statute, made a condition prece- dent to the inception of the ordinary duties of a telegraph company as to the transmission and delivery of a telegram.'^ But even where this condition is not expressly enacted by 1 Beasley v. Western Union Telegraph Co., 39 Fed. Rep. 181 ; Western Union Telegraph Co. v. Jones, 6!) Miss. 658; Western Union Telegraph Co. -;;. Arwine, 3 Tex. Civ. App. 156; Western Union Telegraph Co. v. Hinkle, 3 Tex. Civ. Ap. 518; Western Union Telegraph Co. v. Shumate, 2 Tex. Civ. App. 429. 2 Post, § 496. 8 Connpcticnt. (ieorgia, Indiana, Louisiana, Michigan, Missouri, New York, Pennsylvania, Virginia, Wisconsin. See statutes, xvpra, §§ 320-349; Western Union Telegraph Co. v. Ryals, 21 S. E. Rep. 573. DUTY OF ACCEPTANCE OF MESSAGE. 329 statute, it is implied by the law, for the duty of the tele- graph company, as engaged in a puljlic occupation, is to serve the public only upon receipt of its reasonable compen- sation therefor. § 373. Pre-payment of Answer. — For the samc reasons, a telegraph company may require the deposit of a sum suffi- cient to pay for a reasonable answer in cases where the original message asks an answer. For instance, one regulation of the telegraph company often is that transient persons sending messages which require answers must deposit in advance an amount suffi- cient to pay for an answer of ten words. This rule has been held to be a reasonable one in two cases, and to bind the sender if brought to his knowledge. ^ The regulation was upheld in the Indiana case, because a person who sends another a message, and asks an answer, promises by fair and just implication to pay for transmitting the answer. It is fairly inferable that the sender Avho asks an answer to his message will not impose ui)on the person from whom he requests an answer, the burden of paying the ex[)ense of its transmission. The telegraph company has a right to pro- ceed upon this natural inference, and to take reasonable measures for securing legal compensation for its services. In the case in the Federal court, however, the judge did not agree with this view of the case,- but thought the regulation might be sustained because, taken in connection with other regulations of tolls by telegraph company, it makes a care- fully devised system of securing the payment of tolls, con- sistently with an enlarged accommodation of the public, in allowing customers to regulate among themselves this very matter of adjusting the burden of the tolls. § 374. Reasonable Rules. — In general, it may be said that telegraph companies are allowed to make reasonaVde rules 1 Hewlett V. Western Union Telegraph Co., 28 Fed. Kep. 181; West- ern Union Telegraph Co. v. McGuire, lUl lud. loO. oo CO THE LAW OF ELECTRICITY. and regulations for the conduct of their business.^ Some of these have already been adverted to, such as rules requiring messages to be written,^ requiring pre-payment of charges.^ The most important set of rules and regulations, so far as concerns the operation of telegraph lines, are those which are generally printed upon the blank forms of the telegraph company for the transmission of messages. These rules and regulations comprise limitations of the company's liability in case of non-repeated messages ; rules as to insurance of messages, as to the liability of the company in case of con- necting lines, as to the delivery of messages, and as to the time within which claims for damages must be presented. As these rules and regulations form a part of the contract between the telegraph company and the sender of the mes- sage, they will be considered at length in discussing the special contract stipulations in a later chapter.* 1 Western Union Telegraph Co. v. Reynolds, 77 Va. 173 ; Schwartz v. Atlantic & Pacific Telegraph Co., 18 Hun, 157; Telegraph Co. v. Gris- wold, 37 Oh. St. 301; Shepard v. Gold & Stock Telegraph Co., 38 Ilun, 338;. Atlantic & Pacific Telegraph Co. v. Western Union Telegraph Co., 4 Daly, 527; Western Union Telegraph Co. v. McGuire, 104 Ind. 130; Hewlett V. Western Union Telegraph Co., 28 Fed. Rep. 181 ; Stamey v. Western Union Telegraph Co., 18 S. E. Rep. 1008; Commonwealth v. Western Union Telegraph Co., 14 Week. Not. Cas. 535. Cf. supra, §§ 289, 292, 293. A rule of the telegraph company not to receive tele- grams at time of a general strike of its operators, unless marked " Ac- cepted subject to mailing and other delays," has been held to be a reasonable regulation. Commonwealth v. Western Union Telegraph Co., 14 AVeek. Not. Cas. 535. 2 Supra, § 369. » Supra, §§ 372, 373. * Post, CO. XXV., xxvi. OBLIGATION TO USE REASONABLE CARE. 331 CHAPTER XVII. OBLIGATION OF TELEGRAPU COMPANY TO USE REASONABLE CARE. § 375. Nature of the Duty. § 384. " Reasonable Care." 376. Twufold Basis of the Duty aud 385. Gross Negligeuce. Liability. 386. rractical Iiiijjortauce of the 377. Telegraph Company not liable Phrase. as lu.siirer or Common Carrier. 387. Instances of Gross Negligence. 378. Orii,du uf the Insuring View. 388. Same Subject {continued). 379. Difference between Telegraph 389. Same Subject (continued). Company aud Common Car- 390. Same Subject (continued). rier. 391. Same Subject (continued). 380. Telegraph Company bound to 392. Different Distinctions suggested. use Ileasonable Care. 393. Temleucy to abolish Distinction. 381. Correlated Expressions. 394. Gross Negligence is for the Jury. 382. " Great Care." 395. Evidence on this Point. 383. " Ordinary Care." § 375. Nature of the Duty. — The telegraph company, as has been seen, is obliged l)y the nature of its employment and by express statutory provisions in many States, to trans- mit and deliver messages for the public. ^ The question then arises, What duty as to transmission does this lay upon the company ? Is its duty an absolute one, to transmit and deliver with safety, accuracy, and promptness, as would be the duty of a common carrier in regard to goods intrusted to it; that is, does the telegraph company insure the accurate and prompt delivery of the message, or is the telegraph company only bound to use reasonable care in the transmis- sion and delivery of the message, and if so, what is reasonable care, and are there any degrees of care ? The consideration of these questions in the decided cases is complicated by the different views of the courts as to the real basis of the liability of telegraph companies, and still further by the fact ^ Supra, CO. xiv., xv., xvi. 332 THE LAW OP ELECTRICITY. that ill most cases the question is not presented in its simple form, but involved with the consideration of various special stipulations and agreements contained in the telegraph blanks on which the messages are usually written. A short examination of the basis of the liability of the telegraph companies in this respect will be advantageous here, although its full consideration will be deferred to a later chapter. ^ § 376. Twofold Basis of the Duty and Liability. — The duty of the telegraph in regard to the transmission of messages has a twofold basis. First, an obligation arising out of the agreement to transmit, entered into between the sender and the company when the message is delivered to the latter for transmission and the fees are paid;^ and second, an ante- cedent obligation based upon the public character of the employment of the company and the statutes in regard to transmission. 3 This twofold basis of the obligation and duty of transmission has given rise to several important dis- tinctions in regard to suits against telegraph companies for negligence in transmission, but viewed in either light, the same question is raised, i. e., is the obligation an absolute one like that of a common carrier or insurer, or is it only such an obligation as is imposed on any company which is granted the privilege of exercising public franchises ; i. e., the obligation to use due care in transmission and delivery.* § 377. Telegraph Company not liable as Insurer or Common Carrier. — It has already been seen '" that the courts, after some hesitation on this subject, have agreed that the tele- graph company does not, so far as its operations are con- cerned, occupy the same legal position as the common 1 Post, ch. xxiii. ^ See casen, pout, §§ 452-457. 3 Passmore v. Western Union Telegraph Co., 78 Pa. St. 242, and see cases, poxt, §§ 458, 450. 4 Passmore v. Western Union Telegraph Co., 78 Pa. St. 242; Ayer ?'. Western Union Telegraph Co., 79 Me. 407 ; Telegraph Co. v. Griswold, 37 Oh. St. 301. 6 Supra, §§ 7-10. OBLIGATION TO USE REASONABLE CARE. 333 carrier, and the corollary to that position may now be stated, /. e., that the telegrai)h company is not, in the absence of special aj^reeraent, an insurer of the safe transmission and delivery of the message, ?'. e., it is not bound at all hazards to see that the message is sent correctly and with due despatch, unless prevented by the act of God or the puljlic enemies.^ There were a few early cases in which telegraph companies were hcM to the strict liability of insurers, like common carriei-s ; that is, it was held that telegraph companies insured the safe transmission and delivery of the messages, and were liable for any damages caused by error or delay in the transmission of the message, unless arising from the act of God or the public enemies. ^ 1 Fowler v. Western Union Telegraph Co., 80 Me. 381, 387; Aver v. Western Union Telegraph Co., 79 Me. 493, 497; New York & Washing- ton Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298; Grinnell v. West- ern Union Telegraph Co., 113 Mass. 299; Ellis v. American Telegraph Co., 13 Allen, 226, 232 : Telegraph Co. v. Griswolrl, 37 Oh. St. 301 ; Leonard v. New York, etc. Telegraph Co., 41 N. Y. 544, 571 ; Baldwin v. United States Telegraph Co., 45 K. Y. 744, 751; Breese v. United States Telegraph Co., 48 N. Y. 132, 140; Kiley v. We.stern Union Telegraph Co., 109 N. Y. 231 ; Pearsall v. AVestern Union Telegraph Co., 124 X. Y. 256, 268; Gillis i\ Western Union Telegraph Co., 61 Vt. 461, 464 ; Marr v. Western Union Telegraph Co., 85 Tenn. 530, 536; Western Union Tele- graph Co. V. Fontaine, 58 Ga. 433; Pinckney v. Western Union Telegraph Co., 19 S. C. 71; Tyler v. Western Union Telegraph Co., 60 111. 421,427; AVestern Union Telegraph Co. v. Tyler, 74 111. 168; Smith v. Western Union Telegraph Co., S3 Ky. 104; Western Union Telegraph Co. u. Neiil, 57 Tex. 283 ; Western Union Telegraph Co. v. Edsall, 63 Tex. 668; Abra- liam *• Western Union Telegraph Co., 23 Fed. Rep. 315 (Oregon); Little Bdck & Fort Smith Telegraph Co. v. Davis, 41 Ark. 83. - Bowen r. Lake Erie Telegraph Co., 1 Am. L. Reg. 685 ; !MacAndrew V. Electric Telegraph Co., 17 C. B. 3; Parks v. Alta California Telegraph Co., 13 Cal. 423. The Supreme Court of Virginia, also, in one of its earlier cases on this subject, seemed to be somewhat inclined to adopt the common carrier theory of the liability of telegraph companies, i e., as insurers. The court says : — " AVhile it seems from an examination of many decisions, that the 334 THE LAW OF ELECTRICITY. § 378. Origin of Insuring View. — Thc contention that a telegraph company is liable as an insurer of the messages arose from the analogy between telegraph companies and common carriers. This analogy, springing from the public nature of both occupations, is very exact in many points, e.g., as to duties of both to serve the public without dis- crimination, and for regular prices, and in several other respects. The analogy was urged upon the courts almost from the introduction of the telegraph, but, as has been said, the courts have with great unanimity rejected the deductions sought to be drawn therefrom as to the duty of transmitting messages, and have held that in this regard the telegraph company is not in a position analogous to that of a common carrier to the goods intrusted to it for transportation. ^ § 379. Diflference between Telegraph Company and Common Carrier. — The great and radical difference between the two modes of transacting business cause this difference in liabil- ity. The common carrier, either by himself or his agents, goes along with the goods, and is present with them at all stages of thc route, and can see what happens to them, and guard them from theft and other dangers. The telegraph weight of judicial opinion is that telegraph companies are not common carriers, in the strict sense of the term, yet on account of the public nature of their employment they have been held in very many cases to a very similar degree of responsibility." Western Union Telegraph Co. v. Rey- nolds, 77 Va. 173. But as the court further defines their duty to be, to have suitable instruments and competent servants, and see that the service rendered to applicants is rendered with the care and skill which its pecu- liar nature requires (Tbid.), it is evident that the decision means only that the telegraph company is liable for negligence. In a case in South Carolina, the court discussed the question whether a telegraph company is liable like an insurer for all errors in transmission and delivery except those caused by acts of God and the public enemy, or whether it was enough for the company to show that it had used due care, and the court held that it is enough for the telegraph company to show due care; it is not bound to go further and show that the error was caused by the act of God or the public enemy. Pinckney v. Western Union Tele- graph Co., 19 S. C. 71 ^ See cases, supra, §§ 7-10. OBLIGATION TO USE REASONABLE CARE. 335 company cannot accompany the message in the course of transmission, nor can it maintain actual practical custody of the line along its whole length, and therefore cannot foresee and avoid the casualties and delays which may alter or retard the message in its transit. ^ Moreover, the common carrier has intrusted to him valuable property, which, from his opportunities during transportation, he or his servants may readily steal or injure or otherwise damage, and there- fore for reasons of public policy he is held ;is an insurer, whereas the telegraph company has nothing of intrinsic value deposited with it, but is merely given certain words, and required to cause similar words to be communicated to the sendee. 2 The analogy of the telegraph company to a common carrier is therefore not perfect, and the reasons which demand the strict accountability of one do not apply to the other. Moreover the delicacy of the instruments employed by the telegraph company, and the likelihood of electrical disturbances over which the company has no control, and the causes of which cannot be foreseen, furnish additional reasons for riot imposing on the company the strict liability of an insurer of the safe transmission and delivery of the message.^ Even in California, where the insuring view was originally held, it has since been changed by statute.* § 380. Telegraph Company bound to use Reasonable Care. — Although, as has just been seen, the courts are now prac- tically uniform in holding that a telegraph company is not liable as an insurer of the safe transmission and delivery of a message, yet the courts have also with practical unanimity held and now hold that a telegraph company is, at common 1 Birney v. New York & Washington Printing Telegraph Co., 18 Md. 3-U. 2 IMarr v. Western Union Telegraph Co., 85 Tenn. 530, and see atUe, §§ 7-10. 8 Birney v. Xew York & Washington Printing Telegraph Co., IS Ind. 341, and see cases, .tupra, § 377. ♦ Hart V. Western Union Telegraph Co., 66 Cal. 579. 336 THE LAW OF ELECTRICITY. law and in the absence of contract stipulations varying this obligation, bound to use reasonable care in the transmission and delivery of messages, and will be liable for negligence therein. 1 This rule is in harmony with the rule that tele- graph companies are bound to use reasonable care in the construction and maintenance of their lines and apparatus,^ and with the rule that persons engaging in a public employ- ment are bound to use reasonable care and skill therein.^ Whether and how far a telegraph company can limit or avoid this obligation by contract stipulations with its customers has been differently decided in different States, and will be considered later.* § 381. Correlated Expressions. — The COUrts, in defining the obligations of telegraph companies as to transmission and 1 Ellis V. American Telegraph .Co., 13 Allen, 226; Redpath v. Western Union Telegraph Co., 112 Mass. 71 ; Grinnell v. Western Union Telegraph Co., llo Mass. 299; Tyler v. Western Union Telegraph Co., 60 111. 421; Western Union Telegraph Co. v. Harris, 19 111. App. 317; AVestern Union Telegraph Co. v. Tyler, 74 111. 168 ; Western Union Telegraph Co. v. Carew, 15 Mich. 52-3; New York & Washington Printing Telegraph Co. f. Dryburg, 35 Pa. St. 298; Passraore v. Western Union Telegraph Co., 78 Pa. St. 242; Rittenhouse v. Independent Line of Telegraph, 44 N. Y. 263; Elwood v. Western Union Telegraph Co., 45 N. Y. 549; Baldwin v. United States Telegraph Co., 45 N. Y. 744 ; Breese v. United States Tele- graph Co., 48 N. Y. 132; Pearsall v. Western Union Telegraph Co., 124 X. Y. 256; Birney v. New York & Washington Printing Telegraph Co., 18Md. 341; United States Telegraph Co. v. Gildersleve, 29 Md. 232 ; Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 433; Manville V. Western Union Telegraph Co., 37 la. 214; Smith v. Western Union Telegraph Co., 83 Ky. 104; Gillis v. Western Union Telegraph Co., 61 Vt. 461; Fowler v. Western Union Telegraph Co., 80 Me. 381; Bartlett r. Western Union Telegraph Co., 62 Me. 209; Ilibbard v. Western Union Telegraph Co., 33 Wis. 558, 565; Western Union Telegraph Co. v. Neill, 57 Tex. 283 ; Little Rock & Fort Smith Telegraph Co. v. Davis, 41 Ark. 83; Western Union Telegraph Co. r. Meek, 49 Ind. 53; Becker v. Western Union Telegraph Co., 11 Neb. 87 ; Western Union Telegraph Co. r. Fon- taine, 58 Ga. 433. 2 Supra, §§ 235-237, 247-257. 8 Passmore v. Western Union Telegraph Co., 78 Pa. St. 242; Tele- graph Co. V. Griswold, 37 Oh. St. 301. * See infra, §§ 509 et seq. OBLIGATION TO USE REASONABLE CARE. 337 delivery, do not always use the phrase "reasonable care," but sometimes use qualified expressions. These may be divided broadly into two classes; first, those in which the word "care" is qualified by an adjective expressing a high degree of care; second, those in which it is qualified by an adjective expressing a moderate degree of care. § 382. " Great Care. " — There arc many decisions in which the care which a telegraph company is bound to exercise in the transmission and delivery of messages is said to be "the highest degree of diligence and skill," "great care," or "a high, — perhaps the very highest degree of care."i The courts have been led to use these and similar expressions by the great importance of securing accuracy and diligence in the transmission of telegraphic messages. The use of the telegraph in the most important affairs of the lousiness and social world, and its necessity in cases demanding speedy transmission of intelligence at critical junctures, have, in the opinion of these courts, rendered it necessary to hold tele- graph companies to a very strict accountability in the exer- cise of their corporate functions, and the judges have, therefore, used the expressions above stated in describing the duty of the telegraph company in carrying on its busi- ness. ^ They have not, however, given any definite explana- tion of what they mean by these stringent qualifying words, and it would perhaps be as difficult to distinguish clearly between extreme care and ordinary care, as the courts have said it to be to distinguish between negligence and gross negligence, as will be seen hereafter.^ There is no doubt, however, that practically the addition of the word "extreme," » Tylerr. Western Union Telejrraph Co., 60 111. 421,428; Hart r. Western Union Telegraph Co., 66 Cal. 579 ; Marr v. Western Union Tele- graph Co., 85 Tenn. 538; Fowler v. Western Union Telegraph Co., 80 Me. 381; Western Union Telegraph Co. v. Carew, 15 Mich. 525, 533. 2 Fowler r. Western Union Telegraph Co., 80 Me. 381; Bartlett v. Western Union Telegraph Co., 62 ]\Ie. 20U. * See infra, §§ 385 et scq. 22 338 THE LAW OF ELECTRICITY. or similar expression in the charge of a judge to the jury would add a measure of strictness to the view which the jury would take of the obligation of the telegraph company, and would, therefore, have a real, though indistinguishable, weight in fixing the obligations of telegraph companies in the conduct of their business, and therefore cannot properly be used. The real measure of the obligation of the tele- graph company is, as will be shown in discussing the phrase " due care, " that the care must be such as a reasonable and prudent man would exercise under all the circumstances, and must be proportionate to the importance of the message, and that great importance of the message must necessarily add to the care which a prudent man would give its transmis- sion, and the question whether in any particular case the tele- graph company has given the requisite amount of care is for the jury to decide. ^ § 383. " Ordinary Care." — In many cases the courts hold that a telegraph company is only bound to use "ordinary care " in the transmission and delivery of messages. Several equivalent phrases are used by the courts, such as "due care," simply "care," "diligence," "due diligence," "proper skill and care," "reasonable care and diligence" or "care reasonably adequate to the performance of their duties."^ 1 See infra, §§ 394, 409, and compare poi^t, §§ 721 et seq., IZl , 738, 739, et seq. 2 Ellis V. American Telegraph Co., 13 Allen, 226; Grinnell v. West- ern Union Telefjraph Co., 113 IMass. 299; Gillis v. Western Union Telegraph Co., Gl Vt. 401; Western Union Telegraph Co. v. Harris, 19 111. App. 347; Western Union Telegraph Co. v. Tyler, 74 111. 168; West- ern Union Telegraph Co. v. Neill, 57 Tex. 283 ; Western Union Telegraph Co. V. Edsall, 63 Tex. 608; Manville v. Western Union Telegraph Co., 37 la. 214; Washington, etc. Telegraph Co. i;. ITohson, 1.5 Gratt. 122 ; Smith V. Western Union Telegraph Co., 83 Ky. 104 ; Pearsall v. Western Union Telegraph Co., 124 N. Y. 256 ; Abraham v. Western Union Tele- graph Co., 23 Fed. Rep. 315 (Oregon); Thompson v. Western Union Tele- graph Co., 64 Wis. 531 ; Little Rock & Fort Smith Telegraph Co. v. Davis, 41 Ark. 83 ; Western Union Telegraph Co. v. Short, 53 Ark. 438 ; Pass- more V. Western Union Telegraph Co., 78 Pa. St. 242. OBLIGATION TO USE REASONABLE CARE. 339 Of these phrases "ordinary care " must be disapproved, as tending to render less distinct in the minds of the jury the obligation of the defendant company, for the adjective "ordinary " has a certain association with matters of trivial importance, and while if it is explained as meaning the "ordinary" care which a person would give to important transactions, it might not be misleading, yet even then it is clumsy and not very applicable. The word "care " or "dili- gence " without qualifying adjectives is also inadmissible, as leaving too much to the discretion of the jury. "Adequate " care is not objectionable in meaning, but as the word is not a familiar one, it may miss its mark unless carefully explained to the jury. § 384. " Reasonable Care." — The best phrasc to describe the care which a telegraph company is bound to use in the transmission and delivery of messages is the phrase "reason- able care." This phrase means such care as a reasonable and prudent man would use in similar occupations, having in view in each case the various circumstances surrounding the transaction. The degree of care necessary, therefore, may vary with the varied importance of the messages trans- mitted, and although the varying importance of the messages may not be known in all cases to the telegraph company, yet this knowledge is a factor in determining the amount of care required. 1 § 385. Gross NegHgence. — A distinction has been drawn by the courts in discussing the care or diligence which the telegraph company is required to employ in the transmission and delivery of messages, between want of ordinary care, /. ^., negligence, and great want of care, or what is termed "gross negligence." This distinction between gross negligence and 1 Fowler v. Western Union Telegraph Co., 80 Me. 381; Bartlett v. Western Union Telegraph Co., 62 ]\Ie. "209 ; Smith i-. Western Union Telegraph Co., 83 Ky. 104; Telegraph Co. v. Griswold, 37 Oh. St. oOl; Rittenhouse v. Independent Line of Telegraph, 44 X. Y. 203; New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298. 3J:0 THE LAW OF ELECTRICITY. ordinary iico'lioicnce, like the distinction between extreme care and ordinary care, is one which it is impossible to define, and almost impossible to describe. Whether such a distinction even exists has been doubted by many judges. Thus Baron Rolfe, in an early English case involving the rights of common carriers, said that he could see no differ- ence between gross negligence and negligence; that it was the same thing with a vituperative epithet.^ And in another English case Lord Denman says, — " When we find gross negligence made the criterion to determine the liability of a common carrier who has given the usual notice, it might have been reasonably expected that something like a definite meaning should have been given to the expression. It is believed, however, that in none of the numerous cases upon this subject is any such attempt made, and it will be doubted whether between gross negligence and negligence merely, any intelligible distinc- tion exists. "2 And in another case Willes, J., says, "Any negligence is gross in one who undertakes a duty and fails to perform it."^ And this opinion is held in a recent case in North Carolina.^ § 386. Practical Importance of the Phrase. — However diffi- cult it may be to define the term "gross negligence," it has an important practical bearing upon the liability of telegraph companies; for while the courts differ, as will be seen later,^ as to whether or not telegraph companies may exonerate themselves by contract stipulations with their customers, or by regulations brought to the notice of the customers, from lial)ility for ordinary negligence in the transmission of tele- graphic messages, yet they are unanimous in saying that by no contract stipulations or business regulations, even though 1 Wilson V. Brett, 11 M. & W. 113. 2 Hiiiton V. Dibbin, 2 Ad. & El. N. S. 646. 8 Lord V. Midland Ry. Co., L. R. 3 C. P. 344. 4 Brown v. Postal Telegraph Cable Co., Ill N. C. 187. 6 Infra, §§ 509, 510 et seq. OBLIGATION TO USE REASONABLE CARE. 341 brought to the knowledge of the customer, and assented to i»y him, can the telegraph comi)any exonerate itself from liabil- ity consequential upon its gross negligence or that of its operators. ^ § 387. Instances of Gross Negligence. — Although " grOSS negligence " cannot well be defined, yet instances of negli- gence which the courts have characterized by the epithet "gross " will serve to show what meaning the term has in this connection. It is evident that the courts have in niiinl instances of neu'ligence which are strikinu'lv and olniouslv careless in character, — as where two errors occur in the same message, or where a word is changed to another word, the telegraphic symbols of which do not resemble each other at all, or where the operator is excessively careless or ignorant, or other similar cases. For instance, in a case in Indiana a telegram was addressed to a person at a town which was the county seat of a neighboring county, and one of the stations on the telegraph line. The telegraph operator, how- ever, was ignorant of the existence of this town, and sent the telegram to a distant place having a somewhat similar name. The court held that this was gross negligence or incompetency on the part of the telegraph operator. ^ 1 Clement r. WeRtern Union Telefrraph Co.. 137 ISIass. 463; Redpath V. Western Union Telegraph Co.. 112 Mass. 71 ; Grinnell v. Western Union Telegraph Co., 113 Mass. 299 ; Ellis i'. American Telegraph Co., 13 Allen, 22G ; Western Union Telegraph Co. v. Buchanan, 35 Ind. 429, 441; Tvler ?\ Western Union Tele-jraph Co., 60 111 421, 432; Wann r. Western Union Telegraph Co., 37 Mo. 472, 482 ; Passmore r. Western Union Tele- graph Co., 7S Pa. St. 243; United States Telefrraph Co. r. Wenger, 55 Pa. St. 202; Aiken v. Western Union Telegraph Co., 5 S. C. 358; Candee I'. Western Union Telegraph Co., 31 Wise. 471 ; Becker v. Western Union Telegraph Co. 11 Neb. 87 ; Western Union Telegraph Co. v. Fontaine, 58 Ga. 433; Schwartz v. Atlantic & Pacific Telegraph Co., IS llun, 157 ; Western Union Telegraph Co. v. Neill, 57 Tex. 283 ; Womack r. Western Union Telegraph Co., 58 Tex. 176; Jones v. Western Union Telegrajih Co , 18 Fed. Kep. 717; Gillis v. Western Union Telegraph Co., 61 Vt. 461. Compare post, § 509. 2 Western Union Telegraph Co. v. Buchanan, 35 Ind. 429. 342 THE LAW OF ELECTRICITY. §388. Same Subject (continued). — lu a case in "Wis- cousin, where a message was given to an operator for trans- mission, and no attempt was ever made to forward it, this was called gross negligence on the part of the telegraph operator. 1 In a case in Georgia a message was lost in transmission, and the company, on trial, could not trace it by their operators farther than to say that it was sent from the initial station to " some repeating office " between the starting-place and the destination of the message, but could not tell what repeating office it was sent to. This was held to be evidence of gross negligence. 2 In another case in Georgia the plaintiff sent two messages on the same night, and an error was made in the transmis- sion of each one. This appearing in evidence, the court termed this "the very grossest negligence."^ § 389. Same Subject (continued). — In a case in Texas where a message was sent by a parent to summon a physician to attend a sick child, and the telegraph operator took the message, and in the language of the court " serenely hung it up on a hook," and failed to send it, the court characterized this as gross negligence on the part of the operator.* In a case in Kansas the court held that three mistakes in one message, the whole message being only of nine words, and the original message being well written in a fair round hand so that no person reading it could be in doubt as to the words, and the weather during the transmission being fair and bright with no electrical disturbances, and there being no similarity proved between the symbols representing the words as written and those representing the words of the message as wrongfully delivered, constituted a state of ^ Candee v. Western Union Telegraph Co., 34 Wis. 471. 2 Western Union Telegraph Co. v. Fontaine, 58 Ga. 433. 8 Western Union Telegrajth Co. v. Shotter, 71 Ga. 760. * Western Union Telegraph Co. v. Stephens, 2 Tex. Civ. App. 129. OBLIGATION TO USE REASONABLE CARE. 343 facts upon which a trial court might lawfully find gross negligence on the part of the com})any. ^ § 300. Same Subject {continued). — In another case in the same State there was but one word erroneously transmitted, but this word was plainly written in the original message, and the operator at the office of destination, having some doubt about it as it was there received, telegraphed back to inquire if the word which he had read off was correct, and was told at the sending office that it was, it being, in fact, incorrect. The court held that these facts combined might fairly make a case on which gross negligence in the tele- graph company might be found by the trial court. ^ In a case in Pennsylvania, where a message sent to New York from a southern port was transmitted as far as Philadelphia, and the company offered no reason for or explanation of its nut being transmitted to its destination, this was held to be gross negligence.^ In a case in New York ^ the plaintiff received a message from Armour & Co., in Chicago, quoting prices on pork, and wished to send a reply buying a certain quantity of pork. The message was given to the telegraj^h operator, and he called up the office of destination, but it was busy. Some one then came in on business, and the telegra})h operator, in his absence of mind, put the message among the messages which had been sent, where it stayed for three or four days. The company defended on the ground that it was exempted by the stipulations in its blanks, but the trial court found that there was gross negli- gence, and the court on exceptions held that there was evi- dence enough to find this, and that the defendants could not exempt themselves by their contract from the effects of their gross negligence. It has also been held that if a telegraph 1 Western Union Telegraph Co. t;. Crall, 38 Kan. 679. 2 Western Union Telegraph Co. v. Howell, 38 Kan. 685. 8 United States Telegraph Co. v. Wenger. 55 Pa. St. 262. * Mowry v. Western Union Telegraph Co., 51 Ilun (X. Y.), 126. 344 THE LAW OF ELECTRICITY. company appoints as its agent in a place a man who knows nothing of telegraphing, but who runs a general store and employs as his clerk a man who, thirty years before, was a telegraph operator, and makes him do the telegraphing, this is gross negligence on the part of the company. ^ § 391. Same Subject {continued). — It has been held by the Supreme Court of the United States that an error in the transmission of a message, whereby the word "bay" was made to read "buy," was not gross negligence, although there were two other errors in the transmission of the same message. The message in question was a cipher message of some eighteen words, and it was sent from Pennsylvania to Kansas, and there were three errors in it as delivered. The jury found gross negligence. When the case came before the Supreme Court of the United States, that court examined the evidence relating to the transmission of the message, which was very fully reported, and traced the message cor- rectly to a repeating station in Kansas, where the error probably occurred, and showed that the telegraphic symbols for the words " bay " and " buy " varied only by one dot, and that the messages were read off by the telegraph operators wholly by sound, and the error probably occurred when the message was read off by the receiving operator in the Kansas station, or repeated by him to the transmitting operator in the same station, and that the instruments were sufficient and the operators competent, and the court held that it was error for the jury to find gross negligence on this state of facts. 2 § 392. Different Distinctions suggested. — It is evident from what has been said above that the only importance of the distinction, whatever it may be, between gross negligence and ordinary negligence, is in connection with the stipula- tions often contained on the telegraph blanks, and which 1 Western Union Teleprraph Co i\ Cook, fil Fed. Rep. 624. 2 Primrose v. Western Union Telegraph Co., 154 U. S. 1. OBLIGATION TO USE REASONABLE CARE. 345 will be discussed at length latcr,i exempting the telegraph company from liability for damages caused by the negligence of its operators in transmitting or delivering messages. As was said abovc,^ the courts, following the analogy of similar stii)ulatioiis in the law of common carriers, have, even in those States in which they have maintained such stipulations as being valid, and as relieving the company from liability for its negligence, limited this exemi)tion to cases not involving gross negligence of the company. Tlic cpicstion, therefore, only arises in connection with an agreement or contract between the telegraph company and the customer in which certain stipulations are relied upon by the company as exempting it from its liability. The Supreme Court of Massachusetts have indicated in a somewhat recent case a test of the limits of this exemption which seems more logical, as well as more definite, than the attempted distinction between gross and ordinary negligence ; to wit, that if the negligence comi)lained of is such as, under all the circum- stances, the parties must be presumed to have contemplated as covered by the exemption in the contract when the same was formed, then the exemption will protect the telegraph company.'^ Such negligence might be considered to include ordinary negligence in transmitting a message arising from delicacy of the instruments, the resemblance of the sounds or marks wherebv messages are, transmitted, and the care- lessness of messenger boys in making delivery, and other ordinary incidental failures in telegrai)hing. Whereas extra- ordinary blunders or other instances of carelessness would be considered as not having been conterajdated by the parties. In the case referred to,* the only negligence proved was an unexplained delay in delivering the message on the part of the messenger boy, to whom it was, after its receipt, 1 Post, chapters xxv., xx\H. ^ Suprn, § 3X0. 8 Clement v. Western Union Telegraph Co., 137 :\Iass. 466. * Ibid. 346 THE LAW OF ELECTRICITY. intrusted for delivery. The court says, " It may be that the company might be guilty of some fraudulent or gross negli- gence in transmitting or delivering the message, so that it would not be protected by its regulations from liability for the actual damages, though in excess of the sum stipulated ; but the negligence of the messenger boys in delivering messages was plainly contemplated by the parties when they entered into the stipulation, and there are no principles of public policy which should prevent the company from stipu- lating that it will not be responsible for such negligence beyond a fixed amount, unless it receives a reasonable com- pensation for assuming further responsibility. Without dis- cussing the question as to what is the difference, if any, between ordinary and gross negligence, we are of opinion that the only negligence proved in this case was such negli- gence as the parties intended to include in their stipulation, and that such stipulation as applied to such negligence is reasonable and valid." § 393. Tendency to abolish the Distinction. — Whatever may be the value of the above suggested rule, there is no doubt a tendency or desire on the part of the courts generally to abolish the indefinite and difficult distinction between gross and ordinary negligence. § 394. Gross Negligence is for the Jury. — The question of whether negligence is gross or ordinary, when this dis- tinction is material, should be decided by the jury in the same manner as it decides the question of negligence; but the court may, as a matter of law, on undisputed facts of such a nature that the inference of gross negli- gence is unavoidable or impossible, declare the same as a matter of law, or may review the facts and decide whether or not they support the verdict. ^ > Western Union Telegraph Co. v. Buchanan, 35 Ind. 429 ; Candee v. Western Union Telegraph Co., 34 Wise. 471 ; Western Union Telegraph Co. V. Shotter, 71 Ga. 700 ; Western Union Telegraph Co. v. Stephens, r> <"» OBLIGATION TO USE REASONABLE CARE. 34 § 395. Evidence on this Point. — 111 determining tliis ques- tion of gross negligence, as in other cases of negligence, all the facts and circumstances which logically tend to show- care or its absence are relevant and admissible as facts upon which the jury may base their verdict.^ 2 Tex. Civ. App. 129; riiiniose v. Western Union Telegrajth Co., 154 U. S. 1 ; Western Union Telegraph Co. v. Fontaine, 58 Ga. 4o3 ; West- ern Union Telegraph Co. v. Crall, 38 Kan. G79; Western Union Tele- graph Co. V. Howell, lb. 685. Compare />«a7, § 409. ^ Primrose v. Western Union Telegraph Co., 154 U. S. 1. 348 THE LAW OF ELECTRICITY. CHAPTER XVIII. LIMITS OP DUTY OF TELEGRAPH COMPANY. — DUTY AS TO INSTRUMENTS AND OPERATORS. §396. Particulars of Application. § 40L Storms or Electrical Disturb- 397. Proper Lustrumeuts. auces. 398. Repair of Instruments. 402. Notice of Broken Wires. 399. Competent Operators. 403. Proof of the Exemption. 400. No Liability for Damages caused by Unavoidable Accidents. § 396. Particulars of Application. — The rule being, as before stated, that a telegraph company, in the prosecution of its business, is bound to use reasonable care, as all companies pursuing public employments are bound to do, the question then arises to what particulars this care must be directed; and this branch of the subject may be divided into four divi- sions. First, care in selecting suitable instruments and keep- ing them in repair. Second, care in providing competent operators. Third, care in transmitting the message promptly and accurately; and. Fourth, care in delivering the message without unreasonable delay, to the person to whom it is addressed. § 397. Proper Instruments. — The telegraph company is bound by its obligation to the public to provide reasonably suitable instruments for the business which it undertakes to perform. It is not necessarily required to adopt the latest and most improved forms of instruments, but must i)rovide such as a reasonably prudent man would employ in the con- duct of the business, having regard to the importance of the employment and the dangers and difficulties surrounding it, and the question what are such instruments is for the jury. ^ 1 Tyler w. Western Union Telegraph Co., 60 111. 421, 432; Fowler v Western Union Telegraph Co., 80 ^Sle. 3S1; Aiken v. Western Union LIMITS OP DUTY OF TELEGRAPH COMPANY. 349 § 398. Repair of Instruments. — The telegraph company is not only obliged to provide suitable instruments, but to keep them in reasonal)le repair, and any errors which may be caused by negligence in the rei)air of the instruments will render the company liable for the damages caused thereby.^ § 399. Competent Operators. — Telegraph Companies are also obliged by the public nature of their business to pro- vide operators of reasonable skill and intelligence for the transmission of messages, and a failure to jtrovide such operators is negligence of the telegraph company. ^ Thus, for instance, M'herc a telegraph operator did not know of the existence of the town to which the telegram was addressed, this town being a county seat of the State in which the sending office was, and one of the stations on the telegraph company's line, and not far distant from the send- ing office, it was held that this ignorance was evidence of incompetency which rendered the telegraph company liable for the transmission of the telegram to another town of the same name but in a different State. ^ So when the company appoints as its agent a man who knows nothing of telegraph- Telegraph Co., 69 la. 31 ; Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 432; Manville v. Western Union Telegraph Co., 37 la. 211, 218; Becker v. Western Union Telegraph Co., 11 Neb. 87; Western Union Telegraph Co. v. Short, 53 Ark. 439; Western Union Telegraph Co. v. Graham, 1 Col. 230. 1 Western Union Telegraph Co. v. Merrill (Tex.), 22 S. W. Rep. 826; Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 432; Manville v. Western Union Telegraph Co., 37 la. 214, 218; Becker i'. Western Union Telegraph Co., 11 Xeb. 87; Westerr Union Telegraph Co. v. Short. 53 Ark. 439 ; Tyler v. AVestern Union Telegraph Co., 60 111. 421. 2 Western Union Telegraph Co. v. Cook, 61 Fed. Rep. 624, 629 ; Tyler r. Western Union Telegraph Co., 60 111. 421 ; Fowler v. Western Union Telegraph Co., 80 ISle. 381; Aiken v. Western Union Telegraph Co. 69 la. 31; Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 432; Manville v. Western Union Telegraph Co., 37 la. 214, 218; Becker r. Western Union Telegraph Co., 11 Neb. 87; Western Union Telegraph Co. I'. Short, 53 Ark. 439; Wtstern Union Telegraph Co. v. Graliam, 1 Col. 230. 8 Western Union Telegraph Co. i-. Buchanan, 35 Ind. 429. 350 THE LAW OF ELECTRICITY. ing, but who keeps a general store and employs as his clerk and telegraph operator a man who thirty years before had some experience in telegraphy, the company is liable on the ground that it has appointed an incompetent operator. ^ § 400. Liability for Damages caused by Unavoidable Acci- dents. — Before examining the subject of the duties of tele- graph companies as to the transmission and delivery of messages, it will be well to discuss a topic which applies to both subjects. It has been seen that a telegraph company, in the absence of special contract, is not an insurer of mes- sages, but is merely liable for negligence of itself or its servants in transmission and delivery. It follows that the telegraph company has no liability for errors or delays in transmission or delivery when the same are caused by acts or conditions, whether of natural forces or of third persons, which the telegraph compan}' could not control or avoid by the exercise of reasonable care. Errors and delays caused by atmospheric disturbances may or may not be such causes and conditions as it is negligence for the telegraph company not to guard against. The question hinges on reasonable care and foresight on the part of the company, and is for the jury. 2 § 401. storms or Electrical Disturbances. — Atmospheric OF electrical disturbances which reasonable care on the part of the telegraph company could not have foreseen, and which destroy the lines or interrupt or interfere with the transmis- sion of telegraphic messages, are not causes of error or delay for which the telegraph company is liable. Such are storms so severe or sudden in their nature that they could not have been reasonably foreseen or expected in the places where they occur, or electrical disturbances which from their subtle 1 Western Union Telegraph Co. v. Cook, 61 Fed. Rep. 624. 2 Beasley v. Western Union Telegraph Co., 39 Fed. Rep. 181, 186; Western Union Telegraph Co. v. Hope, 11 111. App. 289, 293; Fowler v. Western Union Telegraph Co., 80 Me. 381. LIMITS OF DUTY OF TELEGRAPH COMPANY. 351 and unknown character could not be guarded against, or accidental fire occurring without fault of the company.^ For instance, it has been held that a heavy and unexpected storm of snow and sleet throwing down the telegraph ])ules and breaking the wires, excused the company from liability for delay in transmitting a message. ^ If, however, the damage is caused by such atmospheric causes or electrical disturb- ances as the telegraph company ought reasonably to have foreseen and prevented or remedied, the disturbance does not exempt the company from its liability for error or delay caused thereby.^ If the telegraph company is prevented by stress of Aveather from sending by the most direct route, it is not chargeable with negligence in sending by the next best route.* § 402. Notice of Broken "Wires. — It is the unexpected and unpreventaljle character of these disturbances that exempts the telegraph com})any from its liability for their conse- quences, and therefore after the lines have been thrown down, or interruptions have occurred, and this fact is known to the telegraph operator, it may be negligence for him to accept a message without notifying the person intending to send the message of this fact.^ In a few States, statutes require that if the line is not in working order, the operator shall give notice of this fact to the person offering the message. 1 Fowler v. Western Union Telegraph Co., 80 Me. 381 ; Bartlett v. Western Union Telegraph Co., 62 Me. 209, 221 ; Tyler v. Western Union Telegraph Co., 60 111. 421 ; Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 433; Manville v. Western Union Telegraph Co., 37 la. 214; Telegraph Co. v. Griswold, 37 Oh. St. 301 ; Western Union Telegraph Co. V. Cohen, 73 Ga. 522. 2 Western Union Telegraph Co. r. Hope, 11 111. App. 289; Beasley v. Western Union Telegraph Co., 39 Fed. Rep. 181, 186. 8 Tyler v. Western Union Telegraph Co., 60 111. 421, 428. ♦ Beasley v. Western Union Telegraph Co., 39 Fed. Rep. 181. 6 Fleischner i-. Pacific Postal Telegraph Cable Co., 55 Fed. Rep. 738; Bierhaus r. Western Union Telegraph Co., 31 N. E. Rep. 581; Western Union Telegraph Co. r. Bierhaus, 39 X. E. Rep. 881. 352 THE LAW OF ELECTRICITY. S 403. Proof of the Exemption. — The decisions are not uniform as to whether, in order to avail itself of the ex- emption which has been discussed in the two preceding sections, the telegraph company must show that the delay or error complained of was caused by uncontrollable causes, or whether the plaintiff must not only prove the delay or error of which he complains, but also prove by affirmative evidence that it was caused by the telegraph company. This question is connected with the question of whether the proof of an error or mistake in the transmission or delivery of a message is, in itself, proof of negligence, which will be discussed later. 1 The better opinion seems to be that the proof of error is prima facie proof of the negligence, and that the telegraph company must show by affirmative proof that the accident was the result of one of the causes from liability for which it is exempt. ^ In some courts, however, it is held that where evidence is merely given of the existence of an error in the message as received by the sendee, this evidence will not throw upon the telegraph company the burden of explaining the cause of the error, since it might have been the result of causes for which the telegraph company is not responsible. In these courts, therefore, the telegraph com- pany is not obliged to show affirmatively that the error was the result of an exempted cause, when the plaintiff merely puts in evidence of the happening of the error. Until he has shown some distinct negligence on the part of the tele- graph company, the latter can rely upon the presumption that the mistake was the result of causes over which the telegraph company has no control. ^ The effect on this rule 1 Infra, § 407 2 Tyler v. Western Union Telegraph Co., 60 111. 421 ; Fowler v. West- ern Union Telegraph Co., 80 Me. 390, and see post, § 407. 8 Sweatland v. Telegraph Co., 27 la. 433; Aiken v. Western Union Telegraph Co., 5 S. C. 358 ; Western Union Telegraph Co. v. Neill, .57 Tex. 283; Womack v. Western Union Telegraph Co., .58 Tex. 176; West- ern Union Telegraph Co. v. Ilearne, 77 Tex. 83 ; Jones v. Western Union LIMITS OF DUTY OF TELEGRAPH COMPANY. 353 of the stipulations ordinarily presented on telegraph blanks, exempting the company from liability for negligence, is considered in a later section. ^ Telegraph Co., 16 Fed. Kep. 717 (Ark.); Thompsou v. Western Uuiou Telegraph Co., G4 Wis. 531. 1 Post, § 407. 23 354 THE LAW OF ELECTRICITY. CHAPTER XIX. DUTIES OP TELEGRAPH COMPANY AS TO TRANSMISSION AND DELIVERY. § 404. Duty of Transmission, Total § 415. Delivery at Hotel or Tlace of Failure. ' Business. 405. Order of Transmission. 416. Limited Free Delivery. 406. Accuracy of Transmission. 417. Statutes as to Free Delivery. 407. Error is prima facie Proof of 418. Change of Residence. Negligence. 419. Delivery of Written Copy. 408. Delay in Transmission or De- 420. Delivery by Telephone. livery. 421. Delay caused by Closed Office. 409. Question of Reasonable Care and 422. Reasonable Office Hours. Diligence is for the Court or 423. Fraudulent Messages. Jurv, when. 424. Fraud of Telegraph Operator. 410. Excuses for Delay. 425. Same Subject (continued), 411. Diligence required in Delivery. 426. Negligence as Basis of Fraud. 412. Delivery to Person. 427. Fraudulent Messages by Third 413. Evidence of Attempted Delivery. Parties. 414. Address to " Care of." 428. Substitution of Forged Message. § 404. Duty of Transmission, Total Failure. — The duty of a telegraph company to transmit messages is necessarily violated by a total failure to transmit, for instance, Avhen the operator receiving the message makes no effort to trans- mit it, or carelessly places it among messages which have already been sent. Thus it has been held, that where the operator received the message and filed it away, and made no effort to send it, this was negligence for which the com- pany was liable. 1 In all cases, however, the question is one of negligence, for the failure to transmit might be the result of some adequate cause which would relieve the telegraph company from liability. Thus, as has previously been seen, 2 1 Western Union Telegraph Co. v. Stephens, 2 Tex. Civ. App. 129 ; Can- dee V. Western Union Telegraph Co., 34 Wi.sc. 471; Birney v. New York & Washington Printing Telegraph Co., 18 Md. 341 ; Sprague v. Western Union Telegraph Co., 6 Daly, 200; s. c. 67 N. Y. 590. 2 Supra, §§ 400-403. DUTIES. — TRANSMISSION AND DELIVERY. 355 failure to transmit a message owing to atmospheric or elec- trical disturbances may not be negligence on the part of the company. ^ § 405. Order of Transmission. — As to the Order in ^s•llic'h telegraphic messages must be forwarded, there have been in several States statutes enacted which require messages to be forwarded in the order of time in which they are received. ^ In a few States there are express exceptions to this order giving priority to messages sent by government ollicials or officers of justice in cases of war, riot, and the prevention of crime, or the arrest and punishment of criminals, ^ and also in favor of publication of news of public and general interest. In States where there is no statute on this point, the rule is that the company must forward the despatch with due dili- gence, or, in other words, without unreasonable delay. Even in States whose statutes prescribe the order of transmission, it is not enough for the telegraph company to follow strictly the order of receipt of the messages, but to forward promptly also, and the question on all the facts would be for the jury as to whether or not the company performed its duty as to promptness in the forwarding of the message.* In States where there" is no statute as to order of transmission, post- poning a despatch for a substantial time out of order of its receipt would be evidence of negligence which, if unex- plained, would warrant the jury in finding for the plaintiff, and of course any preference whereby a despatch is wilfully postponed to the damage of the sendee will render the tele- graph company liable.^ The rules which apply to prompt- 1 Fo-ivler v. Western Union Telegraph Co., 80 'Me. 381; Tyler r. AVest- ern Union Telegraph Co., GO 111. 421 ; Western Union Telegraph Co. v. Cohen, 73 Ga. 522; Beasley v. Western Union Telegraph Co., 3L) Fed. Rep. 181. 2 Supra, §§ 321-349. « Ibid. •* Western Union Telegraph Co. v. Ward, 23 Ind. 377, and see cases, post, § 108. ^ Davis i;. Western Union Telegraph Co., 1 Civ. Sup. Ct. Rep. 100. 356 THE LAW OF ELECTRICITY. ucss in transmitting despatches being intimately connected with those which apply to prompt delivery of despatches, and the latter being the larger and more important branch of the subject, the fuller discussion of these rules will be deferred to the section which treats of the latter subject.^ § 406. Accuracy of Transmission. — The telegraph Company is bound to use reasonable care to secure the transmission of a message in the very words in which it is given to the operator for transmission, and failure to do so will render the company liable for damages caused thereby in the absence of valid contract stipulations exempting it there- from. ^ The question is one of negligence in every case, and like all questions of negligence, is generally for the jury.^ How far this liability for negligence may be avoided by the telegraph company by express contract stipulations is considered in a later chapter.^ S 407. Error is prima facie Proof of Negligence. — There is a lack of uniformity in the decisions of the courts as to whether proof of error in the transmission of a message, or 1 Post, § 408. 2 New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298 ; Tyler v. Western Union Telegraph Co., 60 111. 421 ; Rittenhouse r. Independent Line of Telegraph, 44 N. Y. 263; Ellis v. American Tele- graph Co., 13 Allen, 226; Bartlett v. Western Union Telegraph Co., 62 Me. 209; Giinnell v. Western Union Telegraph Co., 113 Mass. 299, 303 ; West- ern Union Telegraph Co. v. Meek, 49 Ind. 53 ; Lowery r. Western Union Telegraph Co.. 60 N. Y. 108 ; Passmore v. Western Union Telegraph Co., 78 Pa. St. 242 ; Turner v. Hawkeye Telegraph Co., 41 la. 4.58; Telegraph Co. V. Griswold, .37 Oh. St. 301, 313; Western Union Telegraph Co. v. Blan- chard, 68 Ga. 299; Western Union Telegraph Co. i'. Cohen, 73 Ga. 522 ; Abraham r. Western Union Telegraph Co., 23 Fed. Rep. 315; Western Union Telegraph Co. v. Howell, 38 Kan. 685; Western Union Telegraph Co. V. Cook, 61 Fed. Rep. 624 ; Western Union Telegraph Co. v. Crall,38 Kan. 679 ; Aver v. Western Union Telegraph Co., 79 Me. 493; Pearsall t;. Western Union Telegraph Co., 124 N. Y. 256, 2G5; Western Union Telegraph Co. r. Harris, 19 111. App. 347 ; Western Union Telegraph Co. V. Short, 53 Ark. 434 ; Pinckney v. Western Union Telegraph Co., 19 S. C. 71. 8 See c?ise?, post, § 409. * Post, cc. xxv., and xxvi. DUTIES. — TRANSMISSION AND DELIVERY. 357 rather proof that the message as delivered to the addressee differs from the message given to the telegraph company for transmission, is proof of negligence on the part of the com- pany in transmission. It has been held that it is sucli proof, and that in the trial of a case, the introduction of the message delivered to the addressee, and proof that there is a variation between that and the message delivered to the tele- graph com})any for transmission, raise a prima facie case of negligence for the jury, and that the telegraph company is then bound to introduce evidence to show that the error was the result of some cause which excuses the telegraph com- pany, if it means to avoid liability for the damages, unless it is protected by valid contract stipulations.^ In a minority of States, however, it has been held that since the happening of the error might be the result of causes for which the telegraph company would not be liable, such as electrical or atmospheric disturljanccs, the mere proof of a mistake in transmitting the message does not constitute a prima facie proof of negligence, and that it is necessary for the plaintiff who wishes to make out a case of negligence, not only to prove the existence of the error in the despatch, but also to offer some proof of the negligence of the company 1 Western Union Telegraph Co. v. Short, 53 Ark. 434; Telegraph Co. V. Griswold, 37 Oh. St. 301, 313; Western Union Telegraph Co. v. Harris, 19 Til. App. 347; Ayer v. Western Union Telegraph Co.. 79 Me. 493; Bartlett v. Western Union Telegraph Co., 62 Me. 209; Becker r. Western Union Telegraph Co., 11 Neb. 87; Western Union Telegraph Co. v. Blan- chard, (38 Ga. 299; Western Union Telegraph Co. v. :McI)aniel, 103 Ind. •294; Western Union Telegraph Co. r. :Mpek, 49 Tnd. 53; Western Union Telegraph Co. v. Howell, 38 Kan. 6^."^; Western Union Telegraph Co. r. Crall. 38 Kan. 679 ; Western Union Telegraph Co. r. Cook, 61 Fed. Rep. 624; Pearsall i-. Western Union Telegraph Co., 124 M. Y. 256, 265; Ritten- house V. Independent Line of Telegraph, 44 X. Y. 263, 265 ; Turner r. Hawkeye Telegraph Co., 41 la. 458 ; Tyler v. Western Union Telegrnph Co., 60 111. 421 : Pinckney v. Western Union Telegraph Co., 19 S C. 71. As to the validity of contract stipulations exempting from liability, see post, chap. XXVI. 358 THE LAW OF ELECTRICITY* from which the error sprung,^ the nature of the mistake sometimes furnishing the necessary inference of negligence. A distinction should be drawn in this rule, however, between cases where there is a valid special contract stipulation relieving the company from liability for its own negligence or that of its employees unless the message is repeated, ^ and cases where no such special contract exists, or is held void by the courts. In the latter case, as was said above, evi- dence of the existence of the error is generally held to form prima facie proof of negligence.^ In the former case it is not sufficient to show the existence of the error, but the plaintiff must go further and show that it arose from some negligence of the company for which it is liable.^ But if his initial proof is strong enough to show gross negligence, the burden is then upon the telegraph company to excuse it.^ 1 Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 433; Aiken V. Western Union Telegraph Co., 69 la. 31 ; Aiken v. Western Union Tele- graph Co., 5 S. C. 358 ; Western Union Telegraph Co. v. Neill, 57 Tex. 283; Camp v. Western Union Telegraph Co., 1 Mete. (Ky.) 164; West- ern Union Telegraph Co. v. Hearne, 77 Tex. 83; Woraack v. Western Union Telegraph Co., 58 Tex. 176; Thompson v. Western Union Telegraph Co., 64 Wise. 531; Jones v. Western Union Telegraph Co., 18 Fed. Rep. 717. 2 See post, ch. xxvi. 8 Ayer v. Western Union Telegraph Co., 79 l\Ie. 493; Telegraph Co. r. Griswold, 37 Oh. St. 301; Pearsall t-. Western Union Telegraph Co., 124 X. Y. 256, 265; Rittenhouse i". Independent Line of Telegraph, 44 N. Y. 263; Tm-ner 17. Ilavvkeye Telegraph Co., 41 la. 458; Western Union Tele- graph Co. V. Harris, 19 III. App. 347 ; Tyler v. Western Union Telegraph Co., 60 111. 421; Western Union Telegraph Co. v. Short, 53 Ark. 434; Western Union Telegraph Co. v. Edsall, 63 Tex. 668; Pinckney v. West- ern Union Telegraph Co., 19 S. C. 71; Western Union Telegraph Co. v. Cook, 61 Fed. Rep. 621; Western Union Telegraph Co. v. Howell, 38 Kan. 685; Western Union Telegraph Co. v. Crall, 38 Kan. 679; Bartlett V. Western Union Telegraph Co., 62 Me. 209. Contra, Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 433, and ca.ses supra, note 1. * Western Union Telegraph Co. v. Hearne, 77 Tex. 83; Womack v. Western Union Telegraph Co., 58 Tex. 176; Jones v. Western Union Telegraph Co., 18 Fed. Rep. 717. ^ Western Union Telegraph Co. v. Howell, 38 Kan. 685; Western Union Telegraph Co. v. Crall, 38 Kan. 679. DUTIES. — TRANSMISSION AND DELIVERY. 359 The practical effect of the difference in tlic decisions above noted is that in cases where proof of a change in the word- ing of a tclcgrnith \h per se evidence of negligence, the jury are obliged to find for the plaintiff unless this change is explained by the telegraph com})any; whereas, if the mere change is not evidence of negligence, the jury take all the circumstances of the case under consideration, and may or may not find for the plaintiff according as in their view there is or is not negligence on the part of the telegraph company. The question of error in cipher messages is discussed later in the chapter on Measure of Damages.^ § 408. Delay in Transmission or Delivery. — The telegraph company is bound to use reasonable diligence in forwarding and delivering telegraphic despatches with prom])tncss. The telegraph being valuable solely on account of the almost instantaneous communication which maybe ol)tained thereby between places widely separated, the company which under- takes the business of supplying telegraphic facilities to the public is necessarily bound to use a degree of promptness in the operation of transmitting and delivering the despatch which is proportionate to the quickness of the operation of electricitv. The reasonable diligence, therefore, which is required in the transmission and delivery of despatches is much greater than would be required in the case of letters, parcels, and other instances of ordinary transmission or transportation of articles from place to place. The prin- ciples which apply to negligence in tlie transmission of a message, apply as well to negligence in delivery, and may therefore be discussed together, except when in some subor- dinate points they may be necessarily differentiated by the circumstances attendinff the two classes. The dutv of the telegraph company in both cases is to use reasonable dili- gence in the transmission of the telegraphic message over the lines, and in delivering the same upon its receipt at the ^ See post, ch. xxviii., § 588 et seq. 360 THE LAW OF ELECTRICITY. office of destination to the person to whom it is addressed, and negligence in either of these particulars will render the telegraph company liable unless it is protected by valid con- tract stipulations. 1 The question of what contract stipula- tions in this regard are held valid is discussed in a later chapter. 2 Of course, a total failure to transmit a message renders the company liable a fortiori^ § 409. Question of Reasonable Care and Diligence is for the Court or Jury, when. — In some cases the question of whether or not the telegraph company has exercised due diligence in transmitting and delivering a message, is a question of law for the court. Thus if the facts are undisputed, or if they have been settled by a verdict, the court may examine them and decide upon the question of reasonable time in extreme cases ; tliat is, if upon the facts, the court is of the opinion that no reasonably prudent man would have delayed the transmission of the message in the prosecution of his own business for the length of time in question, the court may pronounce it negligence as a matter of law in the telegraph company to have incurred this delay ; and, on the other hand, if the court can sa} that in its opinion no man could reason ^ Candee r. Western Union Telegraph Co., 34 Wise. 471 ; Thompson y Western Union Teleirraph Co., 64 Wise. 531; Manville v. Western Union Telegraph Co., 37 la. 214; Hibbard v. Western Union Telegraph Co., 33 Wise. 538; Beaupre v. Pacific & Atlantic Telegraph Co., 21 INlinn. 155: Western Union Telegraph Co. r. Fontaine, 58 Ga. 433; Western Union Telegraph Co. v. Fcnton, 52 Ind 1 ; First Nat'l Bank of Barnes- ville V. Western Union Telegraph Co., 30 Oh. St. 555; Pope v. Western Union Telegraph Co., 9 111. App. 283; Western Union Telegraph Co. v. Hope, 11 111. App. 289 ; Little Rock & Fort Smith Telegraph Co. v. Davis. 41 Ark. 79: Daughtery v. American Union Telegraph Co., 75 Ala. 168; We.stern Union Telegraph Co. v. Young, 93 Ind. 118; Western Union Telegi-aph Co. v. Harding, 103 Ind. 505; Western Union Telegraph Co. r. Valentine, 18 111. App. 57 ; Conyers r. Postal Telegraph Cable Co., 19 S, E. Rep. 253; Western Union Telegraph Co. v. Blauce, lb. 255; Clement V. Western Union Telegraph Co., 137 Mass. 463. 2 Post, eh. xxvi. 3 See cases, supra, note 1, and post, § 409, note 3, p. 362. DUTIES. — TRANSMISSION AND DELIVERY. 3G1 ably be required to use more promptness than is shown on the part of the telegra})h eom})any in the case in question, the court may decide as a matter of law that there is no evi- dence of negligence.^ There can, from the nature of the case, be no general rule laid down as to what constitutes an unreasonable time tor the transmission and delivery of a telegrnpliic message, and it would therefore be useless to cite a number of cases to show what length of time has been so held. There have been cases in which, on the facts of the case, a delay of seven days in sending a message a distance which would not warrant such length of time has been held grossly unreasonable.^ So a delay of three days under similar circumstances,^ and eight days,* and even a delay of several hours, may be held under the circumstances to be unreasonable." The question of unreasonable delay, how- ever, is, except as above stated, peculiarly one for the jury upon all the facts and circumstances which may be shown for or against the telegraph company.*^ The burden of proof 1 Julian V. Western Union Telegraph Co., 98 Tnd. 3'27; 'Westerii Union Telegraph Co. r. ^NIcDaniel, 103 Ind. 204:; Koons v. Western Union Tele- graph Co., 102 Pa. St. 164. '^ jNlowry v. Western Union Telegraph Co., 51 Hun, 126. « Harkness v. Western Union Telegraph Co., 73 la. 190. * Young V. Western Union Telegraph Co., 107 N. C. 370. 6 Western Union Telegraph Co. v. Scircle, 103 Tnd. 227. 8 Western Union Telegraph Co. v. Fatman, 73 Ga. 28.") ; Western Union Telegraph Co. v. Valentine, 18111. App. 57; Behmr. Western Union Tele- graph Co., 8 Biss. (U. S.) 131; Brown v. Western Union Telegraph Co., C Utah, 219; Western Union Telegraph Co. v. Smith, 21 S. E. Kep. 166; Western Union Telegraph Co. v. Eskridge, 7 Ind. App. 20S ; Julian r. Western Union Telegraph Co., 98 Ind. 327; Western Union Telegraph Co. V. Gougar, 84 Ind. 176; Western Union Telegraph Co. v. Fenton, r)2 Tnd. 1; Western Union Telegraph Co. v. Scircle, 103 Ind. 227; Western Union Telegraph Co. v. Young, 93 Ind. 118 ; Western Union Telegraph Co. V. Bennett, 1 Tex. Civ. App. 558 ; Gulf, Colorado & Santa Fe Ky. Co. I'. Wilson, 69 Tex. 712; Western Union Telegraph Co. v. Cocke, 22 S. W. Rep. 1005; Fowler v. Western Union Telegraph Co., 80 'Me. 381; Pope V. Western Union Telegraph Co., 9 111. App. 283; Barrett v. West- 3G2 THE LAW OF ELECTRICITY. of ne^-lifrciice in the transmission and delivery of messages is upon the pLaintifP, who must show such delay as in the opinion of the court constitutes negligence on the part of the telegraph company; but the telegraph company may meet this proof of delay by showing some excusable cause for the delay, such as atmospheric or electrical disturbances, which have been previously stated ; ^ but the question remains a question of negligence, and the burden of proof at the end of the introduction of evidence by both parties remains upon the plaintiff to show, by a preponderance of evi- dence, negligence on the part of the telegraph company. 2 Proof of total failure to transmit raises a presumption of negligence.^ § 410. Excuses for Delay. — Various facts may constitute sufficient excuse for delay in the transmission of a tele- graphic message, and relieve the company from the imputa- tion of nedisence. The excuse of electrical and atmospheric disturbances has been already stated.^ In some cases tele- graph companies have attempted to excuse delay in trans- mission of a message by the fact that the lines were in use for railway business. This excuse has been held in Texas not to constitute a defence to such an action, since railway business has no precedence over ordinary messages in trans- mission. If this fact, however, is told to the sender at the time of sending the message, it would probably be held that his knowledge of the fact would constitute an acquiescence em Union Telegraph Co., 42 Mo. App. 542; Western Union Telegraph Co. V. Jobe, 6 Tex. Civ. App. 407; Western Union Telegraph Co. v. Win- gate, 6 Tex. Civ. App. 394. 1 Supra, §§ 400-403. 2 Western Union Telegraph Co. v. Bennett, 1 Tex. Civ. App. 558 ; Western Union Telegraph Co. v. Cocke, 22 S. W. Rep. 1005 ; Pope v. AVestern Union Telegraph Co., 9 111. App. 283 ; Fowler v. Western Union Telegraph Co., 80 Me. 381. 8 Julian V. Western Union Telegraph Co., 98 Ind. 327; Fowler v. Western Union Telegraph Co., supra. * Supra, §§ 400-403. DUTIES. — TRANSMISSION AND DELIVERY, 3G3 in this method of transmission.^ The excusahle delays which arise from the closing of an intermediate or terminal office of the telegraph comi)any will be considered later.'-* § 411. Diligence required in Delivery. — A telegraph com- pany is bound to use reasonable diligence and care in making proper delivery of the message in other respects besides promptness, for instance, delivery to the right person or at the right place, and the question whether or not it has done so is for the jury under instructions from the court. ^ The state of facts upon which the court can pass as a question of law has been stated in a preceding section.^ On undisputed or ascertained facts from which the inference of negligence or not is necessarily drawn, the court may decide the case as a matter of law.^ § 412. Delivery to Person. — The leading principle as to delivery of a telegram is that the message is to be delivered to the ])crson to whom it is addressed, and the place of address is sul)ordinate to the person ; and therefore if the person cannot be found at the street and number or other place to which the telegram is addressed, but can be found by reasonable efforts of the telegraph com])any in some other place, it may be negligence for the company to leave the telegram at the place of address without making further efforts to find the absent person and make personal delivery.*' 1 Western Union Telegraph Co. v. Rosentreter, 80 Tex. 406 ; "Western Union Telegraph Co. v. Jobe, 6 Tex. Civ. App. 407. 2 Infra, § 421. 8 Pope I'. Western Union Telesfraph Co., 9 111. App. 283; Thorp v. Western Union Telegraph Co., 84 Ta. 190 ; \Vestern Union Telegraph Co. V. Bennett. 1 Tex. Civ. App. 558 ; Julian v. Western Union Telegraph Co., 98 Ind. 327. * Supra, § 409. 6 Supra, § 409. Cf. Given v. Western Union Telegraph Co., 24 Fed. Rep. 119. ^ Pope V. Western Union Telegraph Co , 9 111. App. 2S3 : Western Union Telegraph Co. v. De JarU'S. 27 S. W. Rep. 792 ; Western Union Telegraph Co. v. Houghton, 82 Tex. 561 ; Western Union Telegraph Co. v. 364 THE LAW OF ELECTRICITY. Thus where a message was addressed to plaintiff at " Van- dal ia Freight Yards, Terre Haute, Ind.," it was held that, in the absence of any proof that such freight yards were a public place at which mail and telegraphic messages were received by persons having business with the railroad company, it was the duty of the telegraph company, on being informed that no such person as the plaintiff was employed or known about the yards, to make further effort to find him, instead of leaving the message with. the yard-master, especially as the plaintiff's residence or place of business could have been easily ascertained by consulting the city directory or inquir- ing at the post-office. 1 Moreover, a telegraph company can- not allow a message to remain in its office until called for by the person to whom it is addressed, but must make reasonable efforts to deliver it to him.^ § 413. Evidence of Attempted Delivery. — Proof of any attempts of the telegraph company to deliver a message is competent evidence when the question of care and diligence of the company in delivery is at issue, and also proof of the difficulty or ease of finding the person to whom the telegram is addressed. For example, if a telegraph company makes efforts to notify the addressee of the receipt of the telegram by mail or otherwise, this is competent evidence upon the question of due diligence on the part of the company.-^ So evidence is competent on either side showing that the person to whom the telegram is addressed was or was not a person, well known in business and social circles, and that his place of business was or was not in a central portion of the city, and that his residence was or was not well known, and other Newhouse, 6 Tnd. App 422; Beasley v. Western Union Telefjraph Co., 39 Fed. Rep. 181 ; Thorp v. Western Union Telegraph Co., 84 Ta. 190. ^ Western Union Telegrajih Co. v. Newhouse, 6 Ind. App. 422. 2 Western Union Telegraph Co. v. Lindley, 62 Tnd. 371. Cf. Western Union Telegraph Co. v. Mansfield, 93 Ga. 349 ; Western Union Telegraph Co. V. Timmons, 93 Ga. 345. 8 Thorp V. Western Union Telegraph Co., Si la. 190. DUTIES. — TIIANSMISSION AND DELIVEIiY. 3G5 similar facts. ^ If the operator at an intermediate point knows of the existence of a town in the State, the name of which is like but not the same as that given in the address as the destination of the telegram, and is in doubt whether or not he should send it there, he is negligent if he does not. Thus in a case where the town name of address was written "Wallace," but the correct name was '' Wallis," it was held that the telegraph operator, knowing of the town of "Wallis," should have tried it.^ § -114. Address to " Care of." — Although the duty of the telegraph company is to deliver to a certain person, it may not always be bound to deliver to the person for whom the telegram is intended, for if the telegram is addressed to X. "in care of" Y. , the telegraph company may deliver the telegram to Y. without being guilty of any negligence even if it fails to reach X.^ But if the telegraph company cannot find the person to whose care the telegram is sent, it may be guilty of negligence if it makes no effort to find the person for whom the telegram is intended,* nor can the telegram be delivered to one whom the person to whose care it is addressed has selected to receive messages for him.^ § 415. Delivery at Hotel or Place of Business. — The duty of the telegraph company to deliver messages to the persons to whom they are addressed is necessarily modified so as to admit of delivery to their representatives or duly authorized agents or servants. Thus, for instance, if a person engages rooms in a hotel in the office of which there is a place for the reception of letters and other written communications for each guest, this being one of the obvious and evident 1 fiulf, Col. & S F. Ry. Co. V. Wilson. 69 Tpx. 743. 2 Roasley v. Western Union Telegraph Co., 39 Fed. Rep. 181. 8 Western Union Telegraph Co. v. Young, 77 Tex. 245; Western Union Telegraph Co. v. Terrell, 30 S. W. Rep. 70. * Western Union Telegraph Co. r. Houghton, 82 Tex. 562. 6 Thompson v. Western Union Telegraph Co., 30 S. W. Rep. 250. 3G6 THE LAW OP ELECTRICITY. arrangements of the hotel, patent to all guests and estab- lished by common usage, a telegram which is duly delivered to the hotel clerk and placed in such receptacle is considered duly delivered to the addressee. ^ If the telegram is addressed to a person at a residence or place of business, and the tele- graph company sends it there by messenger, but is not able to deliver it there by reason of the absence of the person, it is the duty of the telegraph company to use reasonable efforts to follow up the addressee and deliver the message to him at the place where he may be found, and unless it uses reasonable efforts to do so, it will be held to have failed in its delivery. 2 § 416. Limited Free Delivery. — In many places telegraph companies establish by regulation a certain limited distance from the office within which distance telegrams will be delivered free, but outside of which an additional fee is charged for delivery. Such a regulation is held by the courts to be reasonable, and one which the company is justi- fied in making as one of the regulations of its business. ^ Its effect upon the duty of the company as to delivery of the message seems to be a matter upon which the courts are not uniform. In one State it is held that the regulation is pre- sumed to be known to the sender of the message, or at all events, that he is bound to know whether the person to whom he sends the telegram lives within the free delivery district of the company, and if he sends a message, which is addressed to a person beyond the free delivery limits, the company is not chargeable with negligence if it fails to deliver the message without the payment of the additional fee.* In other States such a regulation has been held not to release the company from its duty to deliver the message, even 1 Western ITnion Telegraph Co. v. Trissel, 98 Ind. 566. 2 Pope V. Western Union Telegraph Co., 9 111, App. 283. 3 AVestern Union Telegraph Co. v. Henderson, 89 Ala. 516. 4 Ibid. DUTIES. — TRANSMISSION AND DELIVERY. f)C7 beyond the limits of the free delivery district, if tlie sender does not know of the regulations.^ In several cases it has been so held even where the telegra})li blank on which the message was written contained a stipulation that the message would be delivered free only within the limits of free delivery of the terminal office, and that an additional fee would be charged for delivery beyond these limits, the court holding that, if the telegraph company found that it could not deliver the message for that reason, it should have notified the sender and allowed him an opportunity to send the additional fee.^ Ihit it seems a more just rule that if the telegra))h company notifies the sender of the existence of the regulation, as by printing it on its blank or otherwise, it will be protected for failure to deliver outside the district, without the payment of an additional fee, and the sender, knowing of the rule, must ascertain whether the person to whom he sends is within the limited delivery district. ^ Failure to deliver a telegram cannot be defended by reason of the place of delivery being outside the limited delivery dis- trict, if the company undertakes to deliver it and receives the extra toll for such delivery, or usually makes free delivery outside the limits;^ or if the operator, being in- formed that the addressee lives out of the limits, agrees to collect from him.^ If the telegram is not sent at all, the regulation as to limits of free delivery is of course no defence to the telegraph company.*^ 1 Brashears v. Western Union Telegraph Co., 45 Mo. App. 43.3; Ander- son V. Western Union Telegraph Co., 84 Tex. 17. 2 Anderson v. Western Union Telegraph Co., supra. And to the same effect, Western Union Telegraph Co. v. Womack, 29 S. W. Rep. 932 ; Western Union Telegraph Co. v. O'Keefe, 29 S. W. Rep. 1137; Western Union Telegraph Co. v. Moore, 39 X. E. Rep. 874. 8 Bierhaus v. Western Union Telegraph Co., 8 Ind. App. 246. * Western Union Telegraph Co. v. Teague, 27 S. W. Rep. 958; West- ern Union Telegraph Co. v. Womack, 2!) S. W. Rep. 932. 6 Western Union Telegraph Co. v. O'Keefe, 29 S. W. Rep. 1137. « Horn V. Western Union Telegraph Co. , 88 Ga. 538. 368 THE LAW OF ELECTRICITY. § 417. Statutes as to Free Delivery. — 111 a few States,^ statutes enact that the telegraph company must deliver mes- sages free within certain limited districts. Such statutes have no force outside of the State which enacts them, since, if they had, they would amount to an interference with interstate commerce, as has been seen before. ^ Under a statute which requires telegraph companies to deliver mes- sages to residents within certain limited delivery districts, the court has held that a person who is a transient visitor to the town or city, and who does not furnish the company with any definite address, is not a person resident in the same or within the limited delivery district in the contemplation of such an act.^ In any case, the fact that the person to whom the message is sent lives outside of the limit of free delivery, is a matter of excuse on the part of the telegraph company, and does not form a part of the plaintiff's case.^ § 418. Change of Residence. — If a person expecting to receive a telegram changes his residence, it is competent for him to enter into an agreement with the telegraph company to forward all messages when received to him at his new address, and this agreement will be material in considering the question of whether or not the telegraph company has used reasonable care in endeavoring to deliver the message to the person to whom it is addressed. The question of due care in this, as in all other cases, is for the jury.^ The fact that the telegraph company mails a postal card con- taining information of the receipt of the telegram to the 1 California, Connecticut, Georgia, Minnesota, Mississippi, Ohio, Vir- ginia. See statutes ^upra, ch. xv., §§ 322, 324, 32.5, 335, 336, 342, 346. 2 Supra, § 51; Western Union Telesfraph Co. v. Pendleton, 122 U. S. 3.')8. Of. Western Union Telegraph Co. v. Bright. 20 S. E. Rep. 146 ; AVestern Union Telegraph Co. v. Bates, 93 Ga. 352; Western Union Telegraph Co. v. Tyler, 90 Va. 297. 8 Moore ». Western Union Telegraph Co., 87 Ga. 613. * Western Union Telegraph Co v. Lindley, 62 Ind. 371. 5 Thorp V. Western Union Telegraph Co., 84 la. 190. DUTIES. — TRANSMISSION AND DELIVERY. 369 new address is competent evidence on this question of its having used reasonable diligence in forwarding the telegram. ^ § 419. Delivery in "Writing. — The duty of a telegraph com- pany, generally speaking, is to deliver the telegram in writ- ing. No other form of delivery is sufficient, unless by special agreement. 2 § 420. Delivery by Telephone. — In the absence of any special agreement or statutory authority, the transmission of a message from the office of destination to the addressee by telephone is not a compliance with the duty of the tele- graph company, although by special agreement this may be substituted for the delivery of a written copy.^ § 421. Delay caused by Closed Office. — Cascs oftcn OCCUr where a delay in the transmission of a message is caused by the fact that the office to which it is addressed, or some intermediate office, closes earlier than the office sending it. It is therefore either retained at the first office, or sent and received at the terminal or intermediate office after the regular office hours are over. The question then arises whether the telegraph operator at the office where the message is received for transmission should have informed the person sending the message of the fact that the other office was closed, or if the operator did not know this fact, whether his ignorance was itself to be considered negligence of the company in not keeping him informed of the closing hours of all the other offices of the company. This question was discussed in a case in Indiana, in which the messaee was received at an office of the company at half past seven in the evening. The office hours at the place of receiving extended until nine o'clock in the evenino;. The message was duly transmitted from that office to the office to which it ^ Thorp V. Western Union Teloq^raph Co., S-1 Ta. 190. - Brashears v. Western Union Telegraph Co., 45 Mo. App. 433. 8 Ibid. 24 370 THE LAW OF ELECTRICITY. ■was addressed, but the office hours at the latter office ended at seven o'clock in the evening. This latter office, how- ever, was situated in the station of a railroad company, and the railroad operator, being present, received the message and read it off, and wrote it on a blank and laid it aside fur the regular telegraph operator. This was Saturday night. Sunday morning about nine o'clock the regular telegraph operator came around to the office, and finding the message there took it and endeavored to find the person to whom it was addressed, but did not succeed until the evening of that day. The action was brought to recover a statutory penalty for negligence in transmission of messages received during "usual office hours/' and the court held that the company had a right to establish different office hours in different places, since the business requirements in different places varied with the size and importance of the place; and that the telegraph company should not be required to inform each office of the office hours established in every other place, since this would be almost impossible on account of the great number of offices, and the frequent changes in the office hours; and that the telegraph company was not in fault in any way, and that the penalty was not recoverable. ^ § 422. Reasonable Office Hours. — In accordance with the above decision, the general rule is now established that a telegraph company has the right to establish reasonable office hours for its offices, and that delay in the transmission of a message caused by the fact that a terminal or intermediate office is closed, is not an unreasonable delay, nor does it render the company liable for damages. ^ § 423. Fraudulent Messages. — In a number of instances 1 Western Union Telegraph Co. v. Harding, 103 Ind. 505. 2 Western Union Telegraph Co. v. Wingate, 6 Tex. Civ. App. 304; Given v. Western Union Telegraph Co., 24 Fed. Rep. 119; Western Union Telegraph Co. v. Neel, 86 Tex. 368; Western Union Telegraph Co. V. De Jailes, 27 S. W. Rep. 792 ; Western Union Telegraph Co. v. May, 27 S. W. Rep. 760. DUTIES. — TRANSMISSION AND DELIVERY. 371 fraudulent messages have been transmitted over telegraph lines, and have resulted in loss to the persons to whom they were delivered, the messages, in most instances, being requests for the forwarding of money to the person sending the message, who falsely assumes the name of some person related to the person to whom the telegram is addressed, either by kinship or business relations. As regards the liability of the telegraph company, such messages may be divided into two classes; first, those sent by telegraph operators, and second, those sent by third parties. Before discussing the liability of the telegraph company for such messages, it is well to note that in several States statutes have been expressly enacted imposing fines, and in some cases civil liability for the transmission of such messages. Thus in California, knowingly and wilfully sending a false or forged message, or conspiring to do so, is punishable by fine and imprisonment.^ In Colorado the same offence is made a misdemeanor, and also subjects the offender to civil action. 2 lu Illinois, transmitting or causing to be trans- mitted by telegraph, any falsehood, knowing the same to be such, is finable.^ In Kentucky, knowingly transmitting any false communication or intelligence with intent to injure any one, or to speculate is finable.^ In Maine an operator or agent who designedly falsifies a despatch forfeits not less than twenty dollars nor more than one hundred dollars, and in his default the company pays the forfeit.'' In Missouri, knowingly transmitting a false communication or intelligence with intent to injure or speculate is finable.^ In Nevada, knowingly or wilfully sending a false or forged message, or conspiring to do the same, is punished by fine and imprison- ment.' In Ohio, knowingly transmitting any false commun- 1 Pen. Code, § 474. 2 Ann. Stat. § 1393. 8 Ann. Stat. ch. 134, ^ 8. * Gen. Stats, p. 431, § 10. 6 Rev. Stats, ch. 53, § 1. ^ Rev. Stat. § 2728. "> Gen. Stats. § 923. 372 THE LAW OF ELECTRICITY. ication or intelligence, with intent to injure any person, or to speculate, or sending a forged message, subjects the per- son to a penalty.! j^ Oregon, knowingly and wilfully send- ing a false or forged message, or conspiring to do so, is punishable by fine and imprisonment.^ In most cases these statutes apply equally to telegraph operators and to the public at large. § 424. Fraud of Telegraph Operator. — Taking up now the civil liability : If a telegraph operator sends a fraudulent or forged message, and thereby the person to whom the message is sent is injured, the telegraph company is responsible to the party so injured for his damages, for the telegraph com- pany is liable as a principal to third persons for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances and misfeasances, and omissions of duty of its operators in the course of their employment, and a sending of a message by the operator over the lines of the company, even though the message is forged or fraudulent, is within the scope of the employment of the operator who is employed to take charge of and operate the telegraphic instruments. 3 This rule is consistent with public policy and convenience, for in no other way could there be any safety to third persons in their dealings either directly with the principal, or indirectly with him through the instrumentality of the agent, and for that reason the law considers that the principal holds out his agent as competent and fit to l)e trusted. Thus where the agent of a telegraph company was also an express agent, and knew that A. was in the habit of sending money to B. by express, and telegraphed to A, in B. 's name to send on an amount of money, and when the money came to him through the express, seized it, and con- 1 Rev. Stat., Sm. & Ben., § 34G7. = Ann. Stat. § 2003. 8 M'Cord V. Western Union Telegraph Co., 39 Minn. 181 ; Bank of California v. Western Union Telegraph Co., 52 Cal, 280; Stiles v. Western Union Telegraph Co., 15 Pac. Rep. 712. DUTIES. — TRANSMISSION AND DELIVERY. 373 verted it to his own use, the court held that the telegraph company was responsible, on the ground that this message was sent in the course of the employment of the agent, the court holding that any act done in the usual course of the employment of the servant, although it may not be done in the furtherance of the master's business, and may be a wilful, malicious, or fraudulent act of the servant, renders the master liable for the breach of duty, whether it be found in the contract or be a common-law duty growing out of the relations of the parties.^ § 425. Same Subject {continued). — In a case where the operator of a telegraph company entrusted the business of sending messages at certain times when he was absent to an employee of his, and the employee telegraphed an order upon a bank in San Francisco, "Pay Charles 11. Crowley $1200 gold," and signed it with the name of the cashier of a bank at the place where he was living, and then going himself to the bank to which the order was telegraphed with an acquaintance of his, who innocently but mistakenly identified him as being Crowley, his real name being C rowel 1, upon which identification the bank paid the money to Crowell, — the court held that the telegraph company was responsible to the bank, but placed it upon a somewhat peculiar ground. The court said that unquestionably the telegraph company would have been liable if the message had been sent by the operator himself; that, as the duty of a telegraph operator was highly confidential, he could not legally delegate this duty to another; and therefore the person who actually sent the telegram was not rightfully in the employ of the tele- graph company, and the company could not be held respon- sible upon that theory; but that as the duty of a telegraph operator was not only to transmit messages in the course of his employment, but also to protect the telegraph instruments from use by unauthorized persons, if through his negligence 1 M'Cord V. Western Union Telegraph Co., 39 Minn. 181. 374 THE LAW OP ELECTRICITY. the instruments had been used by an outsider for a fraudu- lent purpose, the company would unquestionably have been liable and, a fortiori, the fact that he voluntarily delivered over the instruments to the use of an outsider rendered the company liable for his neglect of duty in that regard. ^ A recent case has been decided in Arizona where the telegraph company was held liable. In this case a telegraphic mes- sage was received ordering the closing of a bankrupt bank in the town where the receiving operator was employed. The operator himself, having a deposit in this bank, with- held the message until he had gone over to the bank and drawn out his money. The court held that delaying the delivery of the message was a fraudulent act done by the agent or operator in the course of his employment, and there- fore the telegraph company was responsible in damages to the receiver of the bank for the loss thereby occasioned. ^ § 426. Negligence as Basis of Fraud. — When a message is erroneously transmitted by a telegraph company the question whether the person by whom it is received may have an action against the telegraph company therefor is discussed at leng-th in later sections.^ It is sufficient to state here that in England such an action is not sustained by the courts, while in the United States it is generally upheld.^ Such an action has also been supported in one State on the ground of false representations. In this case the facts were that the plaintiffs were in business in Boston, and had partners in San Francisco, and when the San Francisco partners desired goods of a certain kind, they telegraphed to the Boston firm to send the goods. The San Francisco 1 Bank of California v. Western Union Telegraph Co., 52 Cal. 280. 2 Stiles V. Western Union Telegraph Co., 15 Pac. Rep. 712. 8 Poxt, §§ 460 et aeq. * Infra, §§ 460 et seq ; Playford v. United Kingdom Electric Telegraph Co., L. Ft. 4 Q. B. 706; Dickson v. Reuter's Telegraph Co., 2 C. P. Div. 62, 3 C. P. Div. 1. DUTIES. — TRANSMISSION AND DELIVERY. 375 partners telegraphed the Boston partners to send three hundred and twenty-five seamless brass tubes. The tele- graph company delivered the message properly to the plain- tiffs, and then five days afterwards negligently delivered the same message again, thus causing the })laintiffs to send double the quantity of brass tubes ordered. The Boston firm l)rought suit against the telegraph company in three counts, the first alleging negligent mismanagement of the telegraph line, whereby a message was delivered to the jilaintiffs which had never been sent, the second alleging a guarantee by the telegraph company of its authority to send the message delivered to the plaintiffs, and the third alle- ging a false representation of authority to deliver the message. The defendant demurred to the declaration principally on the ground of non-joinder of parties; but the court in overruling the demurrer as to the first and third counts said, " In an action against a telegraph company for delivering a message never sent, and alleging that the defendant falsely repre- sented that it was authorized to deliver such a message, and thereby caused the plaintiff to send goods and suffer damage, it is not necessary to allege that it was done with intent to deceive, or that it was false within the knowledge of the defendant. It is not an action for deceit. It is an action in the nature of a false warranty against one acting as an agent, who represents that he has authority when he has not. Whether such representation is made in terms, or tacitly and impliedly, he supposing but not knowing the fact to be true, he is lial)lc to the person misled.^ Nor in such an action for false representations is it necessary for the plain- tiffs to allege that they used due care and diligence to ascertain if the representations were true. Nor do any pre- sumptions arise in this case from the subject-matter of the alleged false representations that make such an allegation 1 Jefts V. York, lU Cush. ajJ; liaitlelt v. Tucker, 101 :\Jass. 33G and cases cited. 376 THE LAW OF ELECTRICITY. necessary."^ The two grounds on which the decision in the above case was rested were as follows : First, that the tele- graph company had made a representation to the plaintiffs which was false in fact, though not known to them to be false, nor made with intent to deceive ; and second, that the telegraph company had falsely represented itself as having authority to deliver the order to the plaintiffs as agents of the California firm. Both of these grounds were considered in a case in England,^ and not maintained, the court holding, on the authority of cases previously decided in England in other branches, that a statement which is false in fact, but not known to be false to the party making it, nor made with intent to deceive, will not support an action ; and that as to the second ground, it would be unreasonable to hold that the telegraph company made any such representation as to its authority as an agent, — that it did not hold itself out as an agent having authority to contract, but was simply a for- warder of the message. This subject is not important in the United States, where, as has been said, the receiver of a telegraphic message erroneously transmitted is allowed an action against the telegraph company based on the duty of the telegraph company to transmit messages with due care.^ § 427. Fraudulent Messages by Third Parties. — How far a telegraph company is bound to prevent the sending of forged or fraudulent messages over its lines by third parties, has been discussed in several cases. The principle which should decide such cases is the leading principle in regard to the operation of telegraph lines, ^'. e., that the company must exercise reasonable care in its operation, and will be liable for negligence.* The most ordinary instance of such mes- 1 May V. Western Union Telegraph Co., 112 Mass. 94. 2 Dickson v. Renter's Telegraph Co., 2 C. P. Div. G2. 8 ^ee post, §§ 460 el seq. * El wood V. Western Union Telegraph Co. , 45 N. Y. 549. DUTIES. — TRANSMISSION AND DELIVERY. 377 sages is where a person uses the telegraph to request the forwarding of money to him, he assuming a fictitious name for this puri)0sc. If there is anything suspicious about the telegram which reasonably ought to put the operator on guard and lead him to suspect some fraudulent design, then the company will be liable for loss caused by the fraudulent message. Thus, it has been held that the sending of a mes- sage guaranteeing the payment of drafts in the name of the cashier of a bank at the request of the party, who is thereby held out as entitled to credit for a large amount, without any evidence of said party's authority to use the name of the cashier, especially where the telegram bore an evidently false date, was an act of gross negligence for which the telegraph company was liable.^ Whether, in the absence of any suspicious circumstances, the company must make any inquiry into the identity or bona fides of a person sending a telegram asking for money, or receiving a telegram author- izing the payment of money to him, does not seem to be well settled. On the one hand, the usual custom of banks not to pay money to" unknown persons without requiring some iden- tification, would seem to show that when a "valuable " tele- graphic message is received, ^. e., one which authorizes the payment of moiley to an individual, the telegraph company should require some identification. On the other hand, it may be considered that the telegraph company makes no guarantee of the authenticity of the signatures of its tele- grams, and that the party sending the money should make sure that the request therefor is a bona fide one. This latter rule was adopted in a case in Alabama in which the facts were that a message was sent by A. to B, requesting money, the telegram being falsely signed with the name of a relative of B. B. telegraphed in reidy an order to the telegraph company to pay the money to the relative, naming him. The telegraph company, without inquiry, i)aid over the 1 Elwood V. Western Union Telegraph Co., 45 X. Y. 549. 378 THE LAW OF ELECTRICITY. money to the impostor who simulated the relative, and the court held that, as there was nothing suspicious about the impostor, the telegraph company was not liable, ^ The court, however, was divided on this point, a majority hold- ing that where there was nothing to create suspicion in the minds of the company's agents, it was for the party himself on whom the demand is made to ascertain whether he who makes it is the person he professes to be; and that the company has no right to refuse payment of the money to him in reply to whose message the order to pay is sent. Manning, J., however, said that he was strongly inclined to the other conclusion, but as the case was a new one, he deferred to the opinion of the majority. The reasoning of the majority of the court that because a person sends a tele- gram asking for money, therefore he is entitled to receive the money on receipt of it in answer, without investigation by the telegraph company, would seem to lack force. The real principle would seem to be that since the telegram ordering the payment of money directs it to be paid to a certain person by name, the telegraph company should take reasonable care to identify the person to whom it pays the money, as in reality the person whose name is given in the telegram. For instance, if a telegram orders the payment of money to X., and a person appears at the telegraph office claiming to be X., even though he has already sent a tele- gram asking money, and has signed it with the name X., smce the sending of the first telegram is not proof of the identity of the person sending it, it would seem reasonable for the telegraph company to require identification before making the payment. On the other hand, if the person claiming the money produces sufficient iirima facie proof of identity, it would seem reasonable that the telegraph com- pany should be allowed to pay it over to him without liability, in accordance with the general principle governing 1 Western Union Telegraph Co. v. Meyer, 61 Ala. 158. DUTIES. — TRANSMISSION AND DELIVERY. 379 the operation of telegraph lines, that the company is obliged to use only reasonable care. ^ § 428. Sub3titutiou of Forged Message. — The telegraph company, in a case which was decided in the Circuit Court of the United States, was held liable for its negligence upon the following facts. A person presented a draft at a bank, purporting to be drawn on a New York bank by a local bank. The bank to which the draft was presented telegraphed to the local bank to know if the draft was all right. The local bank telegraphed back that it had drawn no such draft. The person presenting the draft, however, through the negligence of the messenger boy at the terminal office, was able to sub- stitute a forged answer in the envelope before it was delivered to the bank to which the draft was presented. The forged message stated that the draft was all right. The person presenting the draft thereupon was paid the money and went out of the State. The telegraph company tried to defend the suit on the ground that the bill was in fact endorsed by a responsible -party from whom the bank might have collected the amount it lost. The court, however, held that this was not a good defence, as the loss occurred through the telegraph company's negligence, and that it therefore must make good the loss to the plaintiff, and could not compel the plaintiff to bring a lawsuit against the endorser to recover its loss prior to suing the telegraph company. ^ 1 See also post, § 632. 2 Strause v. Western Union Telegraph Co., 8 Biss. (U. S.) 104. 380 THE LAW OF ELECTRICITY. CHAPTER XX. CONTRIBUTORY NEGLIGENCE IN SENDING TELEGRAMS. § 429. What is Contributory Negli- § 432. Same Subject (continued). gence. 433. Same Subject (continued). 430. Wrong or Insufficient Address. 434. Same Subject (continued). 431. Other Instances of Contributory 43.5. Antecedent Negligence no De- Negligence, fence. § 429. What is Contributory Negligence. — As in other cases, where a person claims damages from another on account of the negligence of the latter, the rule as to contributory negli- gence of the plaintiff applies in actions against telegraph companies. A definition of contributory negligence has been given in a late telegraph case, as follows. " Contribu- tory negligence consists in such acts or omissions on the part of the plaintiff amounting to a want of ordinary care, as, concurring or co-operating with the negligent acts of the defendant, are a proximate cause of the injury complained of."i As in other cases of negligence also, the question whether the plaintiff has been guilty of contributory negli- gence is generally a question of fact for the jury under proper instructions from the court, subject to revision by the court in cases where, the facts being undisputed or being settled by the verdict, a court can, as a matter of law, say that they do or do not raise a case of contributory negligence. ^ § 430. Wrong or Insufficient Address. — One of the clearest instances of contriljutory negligence is where a failure to deliver a telegraphic message is caused by the fact that the address given by the sender is wrong or insufficient. If this fact contributes to the failure of the telegraph company to 1 Western Union Telegraph Co. v. Virginia Paper Co., 87 Va. 418. 2 Western Union Telegraph Co. v. Stephens, 2 Tex. Civ. Ap. 129 ; and see supra, § 409. CONTRIBUTORY NEGLIGENCE IN SENDING TELEGRAMS. 381 deliver the message, the sender cannot recover damages therefor, since the failure was partly caused by his own negligence.^ An instance of an insufTicicnt address was where the message was addressed to "Mrs. X., Kankakee." When the message was brought by the sender to the telegraph office for transmission, the operator asked for a street and number for the address, but the sender replied that it was no matter about that; that Mrs. X. was a well-known woman in Kankakee, and the message would reach her. The message was then sent, but delivered to another person who was known by the name of Mrs. X., but whose real name was different. The place of delivery was a city of fifteen thous- and inhabitants. The court held that addressing the tele- gram to the name of the person and the city, without a street or number, was contributory negligence.^ This decision, however, has been somewhat modified by a recent case,^ which holds that the question is for the jury in such a case. § 431. Other Instances of Contributory Negligence. — It has been held that if a person receiving a telegraph message has extrinsic information which leads him to suspect that the telegraph message as received by him may be incorrect, he is guilty of contributory negligence if he acts upon the tele- gram without making any effort to ascertain whether or not it is correctly transmitted.'* In the absence of such infor- mation, however, it is not contributory negligence for the receiver of a telegram to act upon it without making any endeavor to ascertain whether it has been correctly trans- mitted or not. For instance, it is not contributory negli- gence for him not to have it repeated back to the sender.^ 1 Western Union Telegraph Co. v. Patrick, 18 S. E. Rep. 980; West- ern Union Telegraph Co. v. McDaniel, 103 Ind. 294 ; Deslottes v. Balti- more, etc. Telegraph Co., 40 La. An. 183. ••^ Western Union Telegraph Co. v. McDaniel, 103 Ind. 294. 8 Western Union Telegraph Co. v. Smith, 21 S. E. Rep. 16G. * Western Union Telegraph Co. v. Wright, 18 111. App. 337. 6 Harris v. Western Union Telegraph Co., 9 Phila. 88. 382 THE LAW OF ELECTRICITY. If the language of the message is ambiguous, and the person receiving the telegram gives it a wrong interpretation, this may be such contributory negligence as will prevent an action against the company. Thus, for instance, where H., in Germany, holding certain bonds, cabled to the plaintiff Hart, in New York, to inquire about the advisability of selling them, and the plaintiff telegraphed back a message, among other things containing the phrase "Hatch says hold undoubted," which phrase, as received in Germany was, "Hatch says sold undoubled," and H. interpreted this to mean an instruction to sell the bonds, and did so, the court held that his error in interpreting the unintelligible phrase could not be made a cause of action against the company. ^ § 432. Same Subject [continued). — Another instance of contributory negligence is where a message is sent summon- ing a physician to attend a sick person, and owing to the failure of the telegraph company to send it promptly, the arrival of the physician is delayed, and the sick person becomes worse or dies. In this case the fact that the person suing has unreasonably delayed sending another message or endeavoring to get another physician, may be a fact showing negligence contributing to the damages of which he com- plains.^ So again if the plaintiff complains that owing to negligence of the telegraph company he did not receive a telegraphic message as soon as he should have, his own failure to act promptly upon the receipt of it may contribute to the damages of which he complains, and therefore relieve the telegraph company of liability therefor.^ §433. Same Subject [continued). — A case in which a question as to contributory negligence arose on peculiar facts was that of Western Union Telegraph Company v. Virginia 1 Hart V. Direct United States Cable Co., 86 N. Y. 633 To the same effect, Nussbaum v. Western Union Telegraph Co., 42 Leg. Int. 16. 2 Western Union Telegraph Co. v. Stephens, 2 Tex. Civ. App, 129. 8 Western Union Telegraph Co. v. Lydon, 82 Tex. 364. CONTRIBUTORY NEGLIGENCE IN SENDING TIXEGRAMS. 383 Pa{)cr Company. 1 The facts were that two messages were sent to the |)hiintiff, wlio was a member of the Straw Board Association, from a manager of the association, which was holding a meeting in a distant place, at which meeting the price of straw boards was being fixed. The first despatch announced that the price of straw boards had been advanced. The date of this despatch was the day before delivery. The second despatch, received by the plaintiff a few days later, and bearing date the day of receipt, announced that the old price had been restored. By mistake of the telegrai>h com- pany, a duplicate of the first message was afterwards delivered to the plaintiff about midnight of the same day. This last message was stamped with the word "Dup.," and bore the same date as the first despatch. The telegraph company relied upon these facts to establish the fact that the plaintiff did not use ordinary care in examining the last despatch delivered to him ; that if he had done so, he would have seen that it was marked duplicate and bore date earlier than the second despatch; and that if he had done so he would not have acted upon it as an original despatch. The court, however, held that the plaintiff had a right to rely upon the presumption that the last message delivered to him was an original despatch duly transmitted, and that his failure to notice the word "Dup.," and the date, was not such failure of ordinary care as would prevent him from recovering. - § 434. Same Subject {continued). — The question of con- tributory negligence was also discussed in a case in New York.s In this case the plaintiff owned and operated large salt works. He had agents in Chicago, and also a shipping agent in Oswego, his works being at Salina, New York. His agent in Chicago telegraphed, " Send five hundred sacks salt. " 1 87 Va. 418. ^ Western Union Telegraph Co. v. Virginia Paper Co., 87 Va. 418. Compare ante, § 426. 8 Leonard v. New York, etc. Telegraph Co., 41 N. Y. 544. 384 THE LAW OF ELECTRICITY. This message was to the shipping agent in Oswego, and was delivered to him, " Send five hundred casks salt. " In the trade " sacks " means fine salt, and " casks " means coarse. The agent consequently shipped the coarse salt. There was some further communication between the parties, but the shipment was not delayed, and reached Chicago where it found no market. The only question on appeal was the measure of damages, and also the question of whether the shipping agent might have stopped the shipment after receiv- ing a telegram to that effect. As a matter of fact, the salt was in the harbor in the vessel the evening that the despatch was received, and did not sail until five o'clock the next morning, but this was not known to the agent. The court held, first, that there was no negligence on the part of the shipping agent, the telegram being received after he had every reason to believe that the goods had been sent ; and, second, that he could not have stopped the vessel if he had seen her, as her chartering was already complete. The question of contributory negligence was also discussed in a case in Pennsylvania. In this case the facts were that a message was dated from Quarantine, S. I., meaning Staten Island, and the telegraph operator wrote the letter C. over the I., so that the date read as if it were from Quarantine, S. C. ; and plaintiff on receipt of message (which was one giving him information that a sister of his who had disap- peared had been found drowned), after endeavoring to get at the telegraph operator, and finding the office closed, and then showing the telegram to a third party, who informed him that it was probably S. C, went down to South Carolina on a fruitless quest. The court held that there was evidence suitable to go to the jury, of negligence on the part of the telegraph company, and no conclusive evidence of negli- gence on the part of the plaintiff, and that the question of negligence was properly left to the jury.^ 1 Tobin V. Western Union Telegraph Co., 146 Pa. St. 375. CONTRIBUTORY NEGLIGENCE IN SENDING TELEGRAMS. 385 § 435. Antecedent Negligence no Defence. — Tlu' piiiiciplc which ap{)lies to other cases of contributory negligence also applies to the same doctrine in relation to telegraph mes- sages, namely, that antecedent negligence of the plaintiff prior to the time when the negligent act of the defendant company occurs, will not affect the right of the plaintiff to recover. For instance, when the telegraph company is sued for late delivery of a telegram which it received about nine o'clock at night, and undertook to transmit and deliver, the fact that the sender of the telegram might have sent it earlier, and thus have procured its arrival in time to prevent the injury of which he complains, is not contributory negli- gence which will prevent his right to recover.^ The subject of contributory negligence in the transmission of telegrams is closely connected with the necessity of a person who has been injured by the negligent act of the telegraph company to use all reasonable efforts to lessen his damages, failing in which he cannot recover that portion of the damage which he might have avoided by reasonable efforts upon his part.^ 1 Western Union Telegraph Co. v. Bruner, 19 S. W. Rep. 149. Com- pare also ante, § 366. 2 Gulf, Colorado & Santa Ffe Kailway Co. v. Loonie, 82 Tex. 323. See post, §§ 619-G30. 25 386 THE LAW OF ELECTRICITY. CHAPTER XXI. DUTY OF SECRECY AS TO TELEGRAMS AND OTHER MATTERS. §436. Penalties against Divulging of §440. Telegraph Operator exempt from Telegrams. Jury Duty. 437. Telegram must be produced in 441. Statutes exempting from Jury Evidence. Duty. 438. Identification of Despatch in Sub- 442. Same Subject (cwi^f'nuerf). poena. 443. Age and other Qualities of 439. Protection of Telegrams in Operators. Transmission. 444. Telegraph Operators running Trains. § 436. Penalties against the Divulging of Telegrams. — A peculiarity of the telegram distinguishing it from many modes of communication of intelligence, is that the contents of the telegram are necessarily known to the operators trans- mitting it. This fact, and the important nature of the com- munications often made by telegraph, render it of the highest importance that the operators should be bound by severe penalties not to divulge the information which they thus obtain. In some of the United States, express statutes have been enacted imposing penalties of fine or imprisonment upon operators who violate the duties of their occupation by divulging telegrams. The phraseology of the statutes varies in the various States, but the gist of the offence is complete when a clerk, operator, messenger, or other employee wil- fully divulges to any but the person for whom it is intended, the contents of a telegraphic message or despatch intrusted to him for transmission or delivery, or the nature thereof. Statutes of this character exist in Arkansas,^ California, ^ Colorado,^ Florida,^ Georgia,^ Maine,^ Maryland,^ Michigan,^ 1 Dig. § 1826. * Pen. Code, § 619. 8 Mill's Ann. Stat. § 1392. * Rev. St. § 2734. 6 Laws 1889, No. 672, § 5. « Rev. Stats, ch. 53, § 1. ' Pub. Gen. Stat. Ai-t. 27, § 252. « How. Ann. Stat. § 3708. SECRECY AS TO TELEGRAMS AND OTHER MATTERS. 387 Minnesota,^ Mississippi,^ Nevada,^ New Jersey,* New York,6 North Carolina,^ Ohio,^ Oregon,^ Pennsylvania,^ RbodO Island, ^^ Tennessee," Wisconsin.^ § 4o7. Telegram must be produced in Evidence. — The fore- going statutes, however, do not furnish the telegraph com- pany an excuse for not producing telegraphic messages in court when the same are material to the trial of a cause, and arc properly sought for by subpoena duces tecum. The telegrams are not privileged communications in such a sense as are communications between attorney and client and husband and wife, and the intent of the statutes above referred to is only to insure the secrecy of the communica- tion except when the message may be required in a trial of a case, or by the government officials to assist in the preven- tion or detection of crime and the preservation of public order. This exception is expressed in two statutes, ^^ and is implied in all others. It is therefore the rule that the production of telegrams in court may be secured by serving the proper subpoena upon the officer or employee who has them in his possession.^* This is the rule even in States which have enacted statutes such as have been referred to in the preceding section, and, a fortiori, is the rule in States 1 G. S. 189i, §§ 67S2, 6783. ^ Ann. Code, § 1301. 8 Gen. Stat. §092. " Rev. p. 1170, § 12. 6 3 Rev. Stat., Birdseye, p. 3031, §§ 1, 2. 6 Laws 1889, ch. 41, §§ 1 et seq. ^ Rev. Stat., Sra. & Ben., § 3466. 8 Hill's Ann. Stat. § 2002. » Bright. Purd. Dig., p. 2001, § 15. If* Pub. Stats, ch. 242, § 39. " Code, § 1541. " Annot. St. § 4557. " Cal. Pen. Code, § 619; Penn. Bright. Purd. Dig. p. 2002, § 16. i« Jaynes, Ex parte, 70 Cal. 683 ; Brown, Ex parte, 72 Mo. 83, 7 Mo. App. 484; Babcock v. United States, 3 Dill. 567; Hennisler v.Freedman, 2 Pars. Sel. Cas. 274; National Bank v. National Bank, 7 W. Va. 544; Dwight, In re, 15 Ont. 148; Woods v. Miller, 55 la. 168; United States V. Hunter, 15 Fed. Rep. 712; Anon., 3 N. J. L. 163; State v. Litchfield, 58 Me. 267. Even in England, where the telegraph is iu the control of government officials, Tomline v. Tyler, 44 L. T. 187. 383 THE LAW OF ELECTRICITY. where no such restraining statutes exist. ^ Xor are the rules of the telegraph company forbidding disclosure of despatches of any avail when the telegrams are required in court, and are duly sought by subpcena.^ § 438. Identification of Despatch in Subpoena. — There must be, however, a sufficient identification of the despatches required in the subpoena to enable the telegraph company to decide which are required. The subpoena cannot be used as a drag-net to bring into court all the despatches of a certain party between certain dates, so that counsel may ascertain which are material to the case. It is impossible to lay down any definite rule as to how close a description of the despatches wanted is necessary. It has been held that a demand for all telegrams received or sent by a certain party within a period of three months is too general, but the suffi- ciencv of identification is a matter for the discretion of the court.^ If the original telegram is lost or not produced by the other party on notice, the telegraph operator may be sub- poenaed, and must give oral evidence of the contents of the message if he can remember them.* § 439. Protection of Telegrams in Transmission. — In addi- tion to the protection of telegrams against disclosure by the operators, in many States statutes have been enacted to protect the messages from interception during transmission by third parties. This interception may be either by tap- ping the wires or by surreptitiously reading the despatch in the telegraph office, or otherwise fraudulently obtaining knowledge of the contents of the message. Statutes impos- ing penalties for such conduct are found in many States.^ 1 State V. Litchfield, 58 Me. 267. 2 Brown, Ex parte, 72 Mo. 83 ; 7 Mo. App. 494; Anon. 3 N. J. L. 163. « Brown, Ex parte, 72 Mo. 83 ; Jaynes, Ex parte, 70 Cal. 638. * State V. Litchfield, 58 Me. 267. 6 Ark. Acts 1885, Act 107, § 9 ; Cal. Pen. Code, § 640; Col. Ann. Stat. §§ 1394-139G; Conn. Stats. 1889, ch. 30 ; 111. Stats. 1891, p. 205; Mich. Acts 1893, No. 113; Nov. Gen. Stats. § 927 ; Ohio Laws 1893, p. 346, § 1 ; Oregon, Hill's Ann. Stat. § 2007 ; Tenn. Code, § 1544. SECRECY AS TO TELEGRAMS AND OTUER MATTERS. 389 In a few States statutes forbid the opening of sealed enve- lopes containing telegrams, except by the persons for whom they are intended,^ or falsely representing the addressee of a telegram for the purpose of obtaining the telegram ;2 and in a few States statutes impose a penalty upon corrupt com- bination with the telegraph operator in the obtaining of information as to the contents of a despatch for the purpose of making use of it.^ § 440. Telegraph Operators exempt from Jury Duty. — Owing to the great importance of having the telegraph instruments always ready for operation, not only for ordinary commercial telegrams, but for the important crises of life, such as ill- ness, death, etc., and still more for the proper control of trains of steam cars, and the avoiding of accidents which interference with the telegraph lines of a railroad would cause, the legislatures of many States have passed statutes exempting telegraph operators from jury duty. The statutes are so short and so nearly alike that it is not necessary to set them forth in full. § 441. Statutes exempting from Jury Duty. — In the follow- ing States telegraph operators are exempt from jury duty. California (operator of a telegraph line doing a general tele- graph business in the State),^ Florida ;5 Georgia (all telegraph operators actually employed in sending and receiving tele- graph despatches are relieved so long as they continue so engaged from all liability to jury duty in that State,^ and all telegraph line repairers actually engaged in repairing telegraph lines are exempt from jury duty in any and all courts of that State. To avail themselves of this exemption, it is necessary for them to produce to the court the certifi- 1 Cal., Col., Minn., Nev., N. C, and Oregon, statutes supra. 2 Cal, Col., Oregon. 8 Cal., Col., Ga., Minn., Miss., Nev., N. Y., X. C, Oreg., R. I., Wise, see statutes supra, and § 436. * Cal. C. C. P. § 200. 6 Kev. Stats. § 1150. « Ga. Code, § 3939. 390 THE LAW OF ELECTRICITY. cate of the manager or superintendent of the telegraph companies, certifying that the party or parties seeking exemption are line repairers, and actually engaged in repair- ing telegraph lines). ^ Louisiana (when engaged as such);^ Minnesota (acting telegraph operators) ; ^ Mississippi ; * Nevada (all operators, clerks, and persons in the employ of any telegra})h company, whilst employed in the office of said company, or along the route of its telegraph lines). ^ § 442. Same Subject {continued). — New Jersey (the opera- tors and assistant operators, superintendent, managers, line- men, and those directly engaged in the business of receiving and forwarding messages by telegraph) ; ^ New York (the operators, assistant operators, clerks, and other persons in the employ of the different telegraph companies in the State of New York, and while doing duty in the offices of said com- panies, or along the routes of their telegraph lines);'' North Carolina;^ Oregon (all operators, clerks, and persons in the employ of any telegraph company, whilst employed in the office of said company or along the route of its telegraph lines) ; ^ Pennsylvania (the operators, assistant operators, clerks, and other persons in the employ of the different tele- graph companies in the State of Pennsylvania, while doing duty in the offices of said companies or along the routes of their telegraph lines) ;^'' Rhode Island ; ^^ South Carolina ;^2 Texas ;^^ Virginia (telegraph operators actually employed as such) ; ^* Washington (all operators, clerks, and persons in the employ of any telegraph company, whilst employed in the offices of said company or along the route of its telegraph » Ga. Laws 1884, No. 438. 2 Acts 1882, No. 42. 8 Stats, of Minn. ch. 107, § 4. * Code Annot. § 23.56. 6 Nev. Gen. Stat. § 931. « N. J. Rev., p. 1176, § 14. ' 3 N. Y. Rev. Stat., Birdseye, p. 3035, § 17. 8 Acts 1889, ch. 255. « Hill's Annot. Stat. § 4167. ^0 Bright. Purd. Dig. p. 2002, § 17. " Pub. Stat. ch. 200, § 2. 12 Gen. Stat. § 2240. is Rev. Stat. Art. 3014-16. 1* Code, § 3140. SECRECY AS TO TELEGRAMS AND OTHER MATTERS. 391 line);^ "West Virginia (actually employed as such in any oiricc in this State) ;2 Wisconsin (all telegraph operators and superintendents). ^ § 443. Age and other Qualities of Operators. — In a few States statutes have been enacted in reference to various minor points about telegraph operators. For instance, in California, any person who is intoxicated while acting as a telegraph operator receiving or transmitting despatches in relation to the movement of trains is guilty of a misde- meanor.* In Colorado and Georgia, operators despatching trains must be at least eighteen years of age, and have had one year's experience as telegraph operators, and in the latter State must have been thoroughly examined as to com- petency.^ In Georgia and Maine, statutes exist relating to the discharge of operatives or the intimidation of operatives, being enacted to protect employees from violence or intimi- dation.^ In New York it is provided by statute that the wages of telegraph and telephone employees must be paid in cash, and not in scrip or store money -orders.'^ In Ohio the hours of telegraph operators running trains are so limited that they must have eight hours rest in twenty-four con- secutive hours, and ten hours constitute a dav's work.^ In Rhode Island, telegraph and telephone linemen are required to wear medals or badges conspicuously attached to their dress, on which shall be legibly inscribed the name of the owner thereof, and a number by which he can be duly identified.^ § 444. Telegraph Operators running Trains. — The train despatchcr of the railroad company, who sends his orders by telegram, is considered in the State courts to be a vice- 1 Hill's Stats. & Codes, § 1567. 2 Code, ch. 116, § 2. 8 Sanb. & Berr. Annot. Stat. § 2525. < Pen. Code, § 391. 6 Col. Stats. 1891, Railroads, II. B., 309 ; Ga. Laws 1890, No. 148, § 1. « Ga. Laws, 1890. Xos. 290, 779; Me. Rev. Stat. ch. 123, § 9. ' 1 Rev. Stat., Birdseye, p. 67S, § 28. 8 Laws 1891, p. 344, § 1. » Tub. Stats, ch. 242, § 49. 392 THE LAW OF ELECTRICITY. principal, so far as the engineers and other employees are concerned, and his negligence will render the company responsible.^ And this rule is in some States extended so far as to include all telegraph operators so far as they arc concerned in running trains, because the telegraph service is a separate and distinct department in the operation of a railroad, and persons engaged in that service are not fellow- servants of the conductors, engineers, brakemen, and others in the immediate management and control of trains.^ But in two cases it was held that a telegraph operator, in com- municating telegraphic despatches as to the running of a train to the engineer from the chief train despatcher, was a co-employee with the engineers, conductors, and other train- men in the running of the train. ^ 1 Sheehan v. N. Y. C, etc. R. R. Co., 91 N. Y. 334; Dana v. Same, 92 N. Y. 639. 2 Hill V. Railway Co., 39 Fed. Rep. 18; East Tenn., etc., R. R. Co. V. DeArmand, 86 Tenn. 75 ; Northern Pacific R. R. Co. v. Charless, 51 Fed. Rep. 567. 3 Cincinnati, N. O. & T. P. R. Co. v. Clark, 57 Fed. Rep. 132 ; McKaig V. Northern Pacific R. R. Co., 42 Fed. Rep. 288. DUTY AS TO CONNECTING LINES. 393 CHxYPTER XXII. DUTY AS TO CONNECTING LINES. § 445. Traiismissiou over other Lines. by Special Contract of first 446. Liability in Absence of Special Company, when. Contract. § 449. U.sual form of Stipnlatiou. 447. Special Contract exempting First 450. First Company handing to Line. Second Company for Trans- 448. Second Company not released mission. § 445. Transmission over other Lines. — The telegraph com- pany is not at common law bound to receive messages for transmission for any points not on its own lines. It holds itself out to the public only for business on these lines, and cannot be required to extend that business unless the statutes of the State expressly command it to do so. In many States, however, statutes compel telegraph companies to receive messages for and from other companies whose lines connect, or in some cases come into the same town. These statutes have been considered in the chapter on Prohibition of Dis- crimination.^ Moreover, telegraph companies often make traffic arrangements voluntarily with connecting lines in order to increase the volume of business and extent of mileage. It is therefore necessary to consider in this rela- tion the rights, duties, and obligations of the successive lines, 1st, in the absence of special contract stipulations, and 2d, Avhen varied by special contract stipulations. § 446. Liability in Absence of Special Contract. — When a telegraph company receives a message for transmission to a place not on its own lines, without any special agreement as to the mode of transmission, and accepts full payment for such transmission, it comes under a contract obligation to transmit the message to that place, and if it is obliged to 1 Supra, §§ 385 et seq. 394 THE LAW OP ELECTRICITY. employ another company to do a portion of the transmission, this fact docs not vary the liability of the first company, and unless it is protected by special stipulation, such as are now often printed in telegraph blanks,^ it has the same liability for negligence occurring on the connecting lines as it has for nesiliirence on its own lines. ^ But not only does the first company come under a contract obligation of transmission, but each succeeding company, by accepting the message in its turn, and taking its share of the payment for transmission eomes under its usual legal duty and implied agreement to transmit and deliver with due care, and will be liable for negligence in these particulars.^ § 447. Special Contract exempting First Line. — If the com- pany which receives the message from the sender has upon its blanks the usual printed stipulation limiting its liability for negligence,^ and also a clause that no liability is assumed for any error or neglect by any other company over whose lines the message may be sent to reach its destination, and if the courts of the State hold that such stipulations are 1 Post, §§ 447, 448, el seq, 2 De Rutte v. New York, Albany & Buffalo Telegraph Co., 1 Daly, 554; Western Union Telegraph Co. r. Shumate, 2 Tex. Civ. App. 429. In two cases in Canada, however, it has been held that the first company assumes only the obligation to deliver to the connecting lines, and has no liability for the negligence of the latter. Stevenson v. Montreal Telegraph Co., 16 Up. Can. Q. B. 530; Kinghorne v. Montreal Telegraph Co., 18 Up. Can. Q. B. 60. 8 Leonard v. New York, etc. Telegraph Co., 41 N. Y. .570; Baldwin V. United States Telegraph Co., 45 N. Y. 749 ; Squire v. Western Union Telegraph Co., 08 Mass. 232; Western Union Telegrnph Co. v. Smith, 26 S. W. Rep. 216; Conyers v. Postal Telegraph Cable Co., 92 Ga. 619; Martin v. Western Union Telegraph Co., 1 Tex. Civ. App. 143; De La Grange v. Southwestern Telegraph Co., 25 La. An. 383. Cf. Western Union Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460. Cf. Thurn v. Alta Cal. Telegraph Co., 15 Cal. 473, to the effect that the second com- pany is under no obligation to receive the message, but this is probably not now the law in many States under the statutes. * This stipulation is discussed in chapter xxvi. DUTY AS TO CONNECTING LINES. 395 reasonable and valid,' the effect of them is to release the first company from responsibility for any negligence of a succeeding company. ^ Thus, for instance, under such a con- tract, if a message is sent from Boston to Buffalo, and the line of the company which receives the message for trans- mission terminates at Albany, and the message is then by it delivered to another line, which transmits it to its destina- tion, and an unreasonable delay occurs in the delivery of the message by the latter company, the first line is exempted from lial)ility by its contract.^ § 448. Second Company not released by Special Contract of First Company, when. — • It is, of course, possible for the first company to exact such a contract from the sender of the message as will release a succeeding company as well as itself from liability for negligence in those States where such contracts are recognized as reasonable and valid.* If the first company stipulates for exemption from liability for negligence on its own line, and also stipulates that it shall not be liable for errors or neglect occurring on other lines, this contract has been held by the courts to show on its face that it is not intended by the parties to apply to any except the first line. Consequently the second line receives the message under its common-law liability, and will be liable for the full consequences of its negligence.^ This ruling is based on the phraseology of the exemption. In one case it has been held that when a special stipulation is inserted in the contract between the sender of the message and the first 1 Cf. infra, §§ 509-537. 2 Squire v. Western Union Telegraph Co., 98 Mass. 232; Western Union Telec^raph Co. v. Munford, 87 Tenn. 190. 8 Squire r. Western Union Telegraph Co., 98 I\Iass. 232. To the same effect, Western Union Telegraph Co. v. Carew, 15 Mich. 525. Cf. West- ern Union Telegraph Co. v. Jones, 81 Tex. 271. * See post, § 449. 6 Squire v. Western Union Telegraph Co., 98 Mass. 232; Martin v. Western Union Telegraph Co., 1 Tex. Civ. App. 149; Western Union Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460. 396 THE LAW OP ELECTRICIir. company, exonerating that company from liability for negligence, this stipulation enures to the benefit of other succeeding companies, and that the sender cannot recover anvthino; more from the connecting line than he could from the line originally receiving the message for trans- mission. ^ The case of Western Union Telegraph Com- pany V. Taylor cited may perhaps be explained on the theory that the second company was successful in defend- ing the suit, not because it had the benefit of any special contract, but because there was, in fact, no negligence, nor would have been any, if the suit had been against the first company; for the negligence complained of was non- delivery outside of the free delivery limited district which was established by a general regulation of the company, and which the courts have held to be reasonable, and to protect the telegraph company from liability for non- delivery. ^ In another case in the same State the second company attempted to avail itself of the limitation of negligence con- tained in the contract between the sender and the first com- pany; but the court evaded the question by holding that the clause did not apply to the facts in question in any event, since a repetition, as called for by that clause, would not have availed the sender at all, because the delay in transmitting the message arose from an erroneous address placed upon it by one of the operators ; and that the correc- tion of this mistake by transmission to another town out of the telegraph line was the cause of the delay; and that the mistake having been corrected, and the message sent to its proper destination, but delayed unreasonably by the detour caused by the incorrect address, a repetition, when it was received at the proper destination, would have been 1 Western Union Telegraph Co. v. Taylor, 3 Tex. Civ. App. 311; contra, Smith V. Western Union Telegraph Co., 84 Tex. 359. 2 See ante, §§ 416, 417. DUTY AS TO CONNECTING LINES. 397 too late, and, moreover, would not have disclosed any error. ^ § 449. Usual Form of Stipulation. — At the present time an ordinary form in which the exemption of the first company is phrased is, "and this company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other company when necessary to reach its destination," the phrase "without liability," being the phrase which conveys the exemption of the first company from liability for the negligence of succeeding companies.^ The effect of this clause would be, it seems, that the sender of the message is bound by any stipulations as to exemption from negligence printed in the blanks of succeed- ing com}ianies in the course of transmission, since his duly authorized agent (the first company) presents the message to the second company for transmission.^ § 450. First Company handing to Second for Transmission. — The question as to the settling of liabilities when the com- pany receiving the message from the sender, and, not having any line to the place of destination, makes no attempt to send it over its own lines, but sends it by messenger to a rival com- pany's office to transmit, was discussed in a case in Massa- chusetts."* The facts were that the operator in the receiving office was absent when the message was there given by the sender to an office boy. When- the operator returned, she at once saw that the message was directed to a place to which the company had no direct line, and therefore tore off the heading of the blank and sent the message to the office of the rival company, by whom it was transmitted. It was not written on a blank of the second company, but the terms 1 Western Union Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460. Com- pare post, §§ 525-527. 2 Western Union Telegraph Co. r. Munford, 87 Tenn. 190. 8 See Western Union Telegraph Co. i-. Taylor, 3 Tex. Civ. App. 311, and cc. xxv., xxvi. * Clement v. Western Union Telegraph Co., 137 Mass. 463. 398 THE LAW OP ELECTRICITY. and conditions of these blanks were well known to the plain- tiff. The court held that the knowledge by the plaintiff of the regulations and conditions upon which the defendant company transacted its business was sufficient to affect him with these regulations, and to limit the liability of the defendant company thereby, although the message was not written upon one of its blanks. ^ The stipulations usually printed in telegraph blanks, and upon which the exemptions of telegraph companies from liability for negligence is based, are discussed in later chapters. ^ 1 Clement o. Western Union Telegraph Co., 137 Mass. 463. 2 Pout, cc. XXV., XX vi. LIABILITY OF COMPANY FOR NEGLIGENCE. 399 CHAPTER XXIII. NATURE OF THE LIABILITY OF THE TELEGRAPH COMPANY FOR NEGLIGENCE. § 451. Twofold Liability, Contract aud § 4G1. Same Subject (continued). Tort. 452. Implied Contract with Sender. 453. Express Contract with Sender. 454. Agency of Sender, Contract Lia- bility. 455. Addressee as Principal of Sender. 456. Addressee as Beneficiary of Mes- sage. 457. Same Subject (coM^i'nwerf ). 458. No Liability in Tort to Sender of Message when Special Con- tract exists. 459. Tort Liability in Cases where no Special Contract. 460. Liability in Contract or Tort to Addressee. 462. Same Subject. United States. 463. Statutory Duty. 464. Distinction between English aud American Decisions. 465. Public Duty. 466. Obligation to use Due Care. 467. Common Agency of Telegraph Company. 468. Special Property in Message. 469. Changed Telegram as False Re- presentation. 470. Profession of Authority as Agent. 471. Limit to Parties who may sue in Tort. 472. Limitation of the General Rule. 473. Rule as affected by Language of the Statute. § 451. Twofold Liability, Contract and Tort. — The preced- ing chapters have given a view of the duties and obligations of telegraph companies, both as imposed by statutes and as construed by the courts. In this chapter it is intended to examine the nature of the liability of telegraph companies for the breach of these duties, that is, by negligence in the transmission and delivery of messages, and this examination will include two aspects of the liability, or rather, two different liabilities, namely, that which arises from breach of the contract for transmitting the message, and that which arises from default in the statutory duties as to dili- gence of operation, etc., which have been previously con- sidered. This examination of the nature of the liability is necessary, because in subsequent chapters it is proposed to consider the various special stipulations which telegraph 400 THE LAW OF ELECTRICITY. companies require their customers to assent to, and which vary materiall}' in many particulars the liability of the tele- graph company as imposed on it by the statutes and at common law. An incident to this examination will be the consideration of the right of the addressee of a message to sue the company for negligence in transmission or delivery, a right which has been much questioned by courts and text- writers. § 452. Implied Contract with Sender. — The contractual liability of a telegraph company to the sender of a message may be of two different kinds. First, it may arise from breach of an implied contract, and, second, it may arise from breach of an express contract. Considering the first, when a telegraph company simply accepts for transmission a mes- sage delivered to it orally or in writing, but without any spe- cial stipulations as to transmission, and receives payment for the transmission of' the telegram, the law implies a contract to transmit and deliver, and the terms of the contract are the duties imposed upon the telegraph company by the law.^ These duties have been considered previously, and are substan- tially to transmit and deliver the message with reasonable promptness and care,^ without preference,^ and without dis- crimination,* together with some other subordinate duties aris- ing from these main duties.^ If the telegraph company breaks the implied terms of this contract,either by negligence in trans- mission or delivery, the sender may have an action of contract on the implied agreement against the company for damages.^ 1 See cases, note 6, infra. ^ Supra, cc xvii. to xix. 3 Supra, ch. xiv. ■* Ibid. 5 Supra, cc. xxi., xxii. 6 Stevenson v. Montreal Telegraph Co., 10 Up. Can. Q. B. 530; Aiken V. Western Union Telegraph Co., 5 S. C. 358; Kinghorne v. Montreal Telegraph Co., 18 Up. Can. Q. B. 60; Pearsall v. Western Union Tele- graph Co., 124 N. Y. 265; Leonard v. New York, etc. Telegraph Co., 41 N. Y. 570; Baldwin v. United States Telegraph Co., 45 N. Y. 749; Squire v. Western Union Telegraph Co., 98 Mass. 232; Western Union LIABILITY OF COMPANY FOR NEGLIGENCE. 401 The allied liability ill tort in such cases is discussed in a later section.^ § 453. Express Contract with Sender. — Practically, in most cases, the sending of a message by telegraph is not begun by the delivery to the company of an oral message or a message informally written on ordinary paper; but the person desiring to send the message writes it upon one of the blank printed forms of the company, and then signs his name to the despatch, and delivers it to the company for transmission. These printed forms contain numerous special agreements and conditions which are intended to modify to a great extent the ordinary legal duties and liabilities of the tele- graph company. Whether writing the message on such a blank and delivering it to the company forms an express written contract between the company and the sender which modifies, so far as the law allows, the liabilities of the parties in the manner therein stated, or whether these printed stipu- lations are only restrictions of the liability of the tele- graph company by notice, is discussed in later sections. ^ The detailed effect of these modifications will also be con- sidered in later sections.^ It is sufficient for the present to say that in such a case, if the printed blank is held to be an express contract between the telegraph company and the sender of the message, then, for breach of this contract, the sender may have an action of contract.* § 454. Agency of Sender, Contract Liability. — This COn- Telegraph Co. v. Smith, 2G S. W. Rep. 216. Damages, however, cannot be entered on default as liquidated, but must be assessed. Smithsou v. United States Telegraph Co., 29 Md. 1G2. 1 Post, §§ 458, 459. 2 p^s^, §§ 493-495. * Cc. XXV., xxvi. * MacAndrew v. The Electric Telegraph Co., 17 C B. .3 ; Grinnell v. Western Union Telegraph Co., 113 Mass. 299; Redpath r. "Western Union Telegraph Co., 112 Mass. 71; Aiken v. Western Union Telegraph Co., 5 S. C. 358; Passniore v. Western I'nion Telegraph Co., 78 Pa. St. 242; Wolfe V. Western Union Telegraph Co., 62 Pa. St. 83; Western Union Telegraph Co. v. Henderson, 89 Ala. 516; Western Union Telegraph Co. 26 402 THE LAW OF ELECTRICITY. tractual liability is not limited to the person who actually delivers the message to the telegra})h company for trans- mission, even though he signs his name to the despatch, and is apparently the principal in the transaction; for although he writes, signs, and delivers the message to the telegraph company for transmission, he may be simply an agent of some other person. In such case the principal may sustain his action of contract against the telegraph company on the contract of transmission by proof of the agency, although the agency was not disclosed to the telegraph company at the time of sending the message, for the courts in this instance apply to telegraph cases the well-settled rule in the law of agency, that a principal, although not disclosed at the time of forming a contract, may, except in special instances, such as commercial paper and sealed instruments, afterwards make known the fact that the person who made the contract was his agent, and may sue upon the contract in his own name. -^ Thus, in a case in New York,^ the principal, Milliken, sent a telegram to his agent in Paris making certain inquiries. The agent sent a reply addressed to "Mentor, New York," this being a fictitious address of the principal. The principal inquired at the telegraph office in New York if anv telegram so addressed had been received by them, and was told that it had not. He then gave his real name and address, requesting them to forward him any telegram which might be received with that address, and they agreed to do so. The telegram was received but never V. Dougherty, 54 Ark. 221 ; Western Union Telegraph Co. W.Fairbanks, 15 111. App. 600 ; Western Union Telegraph Co. v. Jones, 95 Ind. 228 ; Western Union Telegraph Co. v. Yopst, 118 Ind. 249 ; Hill v. Western Union Tele- graph Co., 85 Ga. 425; Cole v. Western Union Telegraph Co., 33 Minn. 227. 1 Milliken v. Western Union Telegraph Co., 110 N. Y. 403, 410; Leo- nard V. New York, etc. Telegraph Co., 41 N. Y. 544 ; Playford v. United Kingdom Electric Telegraph Co., L. R. 4Q. B. 706; Harkness v. Western Union Telegraph Co., 73 la. 190; West v. Western Union Telegraph Co., 30 Kan. 93. 2 .Milliken y. Western Union Telegraph Co., 110 N. Y. 403. LIABILITY OF COMPANY FOR NEGLIGENCE. 403 delivered to tlic plaintiff. lie thereupon brought suit, and the court held that he, as the undisclosed principal in the transaction, might sue on the contract with his agent in Paris, and that this rule was well settled as applied to tele- grams. In another case the facts were that A., being plain- tiff in a suit in a distant city, and employing B. as her attorney there, and also C. as her attorney in her town of residence, was expecting her case to come on for trial at a certain date. Her attorney at the place of trial telegraphed to her local attorney not to come, as the court had adjourned. The telegram was held at the place of residence three days before being delivered to her local attorney, and she, not receiving it, therefore started out with her witnesses for the court, and incurred considerable expense. The company defended, on the ground that the i)laintiff had no privity of contract with either the sendee or the sender of the messaee; but the court held that the sender of the message was the agent of an undisclosed principal (the plaintiff), and there- fore the plaintiff could sue on his contract by proving the agency.^ In such actions the telegraph company may employ any defence which it might make to an action by the agent, provided the facts forming the defence occurred before the disclosure of the principal, such, for instance, as payments made to the agent on account of the contract before the dis- closure of the principal. 2 In such a case it seems that the agent will be allowed also to maintain an action in his own name on the contract between himself and the telegraph company. 3 If at the time the message is received for trans- mission, and the charges paid, the person sending it informs the operator that he is acting as agent for a third party, the principal in such a case may, of course, maintain a suit on the telegraphic despatch in his own name.* * Ilarkness v. Western Union Telegraph Co., 73 la. 190. * Ibid. 8 Story, Agency, § 396. * Western Union Telegraph Co. v. Wilson, 93 Ala. 32 ; Kennon v. Western Union Telegraph Co., 92 Ala. 399. 404 THE LAW OF ELECTRICITY. § 455. Addressee as Principal of Sender. — The principle laid down in the foregoing section has been used in many cases to sustain a right of action of contract by the person to whom a message is addressed for negligence in the trans- mission or delivery of the message. This question of the right of the person to whom a message is addressed to sue the telegraph company for negligence in its transmission or delivery, has been discussed in a great number of cases. The various views which have been advanced for and against such a right of action when it is claimed in tort wdll be dis- cussed in later sections. ^ It is sufficient here to state that even those courts which go the furthest in refusing the addressee of a message a right of action against a telegraph company, admit that if he can show that the sender of the message was his agent, either disclosed or undisclosed, he may maintain an action of contract against the telegraph company upon the principles stated in the foregoing section.^ The case of Milliken v. Western Union Telegraph Company,^ the facts of which have been previously given, is a good instance of this class of cases. In such cases, as will be seen hereafter more fully, the contract stipulations on the printed form of telegraph blanks bind the plaintiff through his privity of contract just as much as they do the person who sends the telegram.* § 456. Addressee as Beneficiary of Message. — The principle stated in the foregoing sections has been still further extended in some States in favor of the person to whom a 1 Post, §§ 460-473. 2 Milliken v. Western Union Telegraph Co., 110 N. Y. 403; Aiken r. Western Union Telegraph Co., 69 la. 31 ; Western Union Telegraph Co. V. AVilson, 03 Ala. 32; Tennington v. We.stern Union Telegraph Co., 67 la. 631; Leonard v. New York, etc. Telegraph Co., 41 N. Y. 544; Play- ford V. United Kingdom Electric Telegraph Co., L. R. 4 Q. B. 706 ; Feaver V. Montreal Telegraph Co.. 24 Up. Can. C. P. 258; Harkness v. Western Union Telegraph Co., 73 la. 190; West v. Western Union Telegraph Co., 39 Kan. 93. 3 110 N. Y. 403. * Post, §§ 499-535, 537. LIABILITY OF COiMPANY FOR NEGLIGEN'CE. 405 message is addressed. The obvious justice in many cases of maintaining such a right of action in behalf of the person to whom the message is addressed, has given rise to strenuous endeavors of the courts to find some basis for sustaining such an action in cases where the sender of the message incurred no substantial damage by the negligence of the telegraph company, but the addressee of the message did. In their endeavors to sustain such actions, the courts have made use of an extension of the foregoing principle, and have said that in cases where the message is wholly for the benefit of the person to whom it is addressed, the courts will jircsume that the message was sent by the sender as the agent of the person to whom it is addressed, and for whose benefit it is, and although there has been no previous appointment of the sender as agent, yet this will be presumed from the nature of the message, especially if the sending of the message is ratified by him afterwards, as, for instance, if the price of sending the message is paid by him to the sender, and there- fore the addressee of the message may avail himself of this principle of agency and sue the company upon the contract of transmission entered into with the sender of the message. ^ On this theory it would seem to be immaterial, except upon the question of damages,^ as to vrhether the telegraph com- pany knew or did not know that the sender of the message was the agent of the person to whom it was sent, since, as has been above shown,^ an undisclosed principal may sue upon the contract of his agent. ^ Chapman v. Western Union Telegraph Co., 90 Ky. 265; Anderson r. Western Union Telegraph Co., 84 Tex. 17; Sherrill v. AVestern Union Telegraph Co., 109 X. C. .5-27 ; Martin v. Western Union Telegraph Co., 1 Tex. Civ. App. 143; Western Union Telegraph Co. v. Adams, 75 Tex. 531; Western Union Telegraph Co. v. Hope, 11 111. App. 289; Western Union Telegraph Co. v. Beriiiger, 84 Tex. 38; Young c. Western Union Telegraph Co., 107 N. C. 370; Markel r. Western Union Telegraph Co., 19 Mo. App. 80; Western Union Telegraph Co. v. Broesche, 72 Tex. 654; Butner v. Western Union Telegraph Co., 37 Pac. Rep. 1087. ^ Post, ch. xxviii. ^ Supra, § 454. 406 THE LAW OF ELECTRICITY. §457. Same Subject {continued). — This same class of cases is also sustained by the courts on the principle which is law in a few States, that a person for whose benefit a con- tract is made may maintain an action to compel the per- formance of it, although he is not a party to the contract, this being for the reason that he has a beneficial interest in the performance of the contract, and that the law will imply a promise on the part of the person whose action would be for his benefit to fulfil his contract in that respect, i To give the addressee the benefit of this rule, it must appear either from the language of the message or the circumstances under which it is sent, and which are known to the telegraph company, that the message is sent for the benefit of the addressee. 2 This rule has been applied principally in cases where the message did not relate to commercial proceedings, but to social or domestic affairs, such as sickness or death of relatives, in which cases the message was clearly for the ])enefit of the person to whom it was addressed. Moreover, in such cases, as the only damages incurred by any person from negligence in the transmission of the message are injuries to the feelings, the courts in some States, which hold that, in actions of tort, injuries to the feelings alone cannot be recovered, while in actions of contract, if nominal damages are recovered, injuries to the feelings may be included as a matter of aggravation, have used the above stated principle to enable the addressee of the message to maintain an action of contract, and thus work out substantial justice between the parties where an obvious failure of justice would otherwise result. ^ The principle that a third 1 See cases supra, § 456, note 1; Western Union Telegraph Co. v. Hope, 11 111. App. 289. 2 Cases supra, § 456. 3 Martin v. Western Union Telegraph Co., 1 Tex. Civ. App. 143; Western Union Telegraph Co. v. Beringer, 84 Tex. -38 ; Western Union Telegraph Co. v. Adams, 75 Tex. 531 ; Shorrill v. Western Union Tele- graph Co., 109 N. C. 527; Young v. Western Union Telegraph Co., 107 LIABILITY OF COMPANY FOR NEGLIGENCE. 407 party benefited by a contract may sue on it is in many States not accci)tcd as law, and in those States necessarily, this rule cannot be invoked in favor of the addressee of a tele- graphic message. In one State where the courts hold that a person not a party to the contract cannot sue for its enforce- ment except where the contract is for the payment of money, this principle has also necessarily been abandoned in case of suits by the addressee for injury to the feelings.^ § 458. No Liability in Tort to Sender of Message when Special Contract exists. — Returning now to thc liability of the tclegra[)h com])any to the sender of the message, and taking up the liability in tort. There is no liability of a telegraph company in tort to the sender of a telegram for negligence in transmission or delivery, in any case where an express contract for thc transmission of the message is entered into by the parties, such, for instance, as is con- tained on the ordinary printed ])lank forms of the telegraph company, for in such a case thc express contract supersedes the legal duty of the telegraph company in regard to the transmission of the message, and defines the rights of the parties. This principle is well stated by Professor Pollock in his admirable book on the Law of Torts, as follows: "When- ever there is a contract to do something, the obligation of the contract is thc only obligation between the parties with regard to the performance, and any action for failure or negligence therein is an action on the contract, and this whether there was a duty antecedent to the contract or not."^ And in ordinary practice, in those States where the distinc- tion between actions of contract and actions of tort is main- tained, it will be found that actions by the sender of a tele- N. C. 370; Markel c. Western Union Telegraph Co., 19 Mo. App. SO; Butner v. Western Union Telegraph Co., 37 Tac. Rep. 1087. 1 Western Union Telegraph Co. v. Wilson, 93 Ala. 3-2 ; Kennon r. Western Union Telegraph Co., 92 Ala. 399; Daughtery i'. American Union Telegraph Co., 75 Ala. 108. 2 Pollock, Torts, p. 437. 408 THE LAW OF ELECTRICITY. graphic message for negligence of the telegraph company in the transmission or delivery of the same, are generally actions of contract in cases where an express contract was made for the transmission. ^ There are, however, some cases in which the stipulations printed on the telegraph blanks are considered rather as regulations of the telegraph business, or restrictions of its common-law liability, and in such cases, as there is no express contract, an action of tort is allowable. 2 § 459. Tort Liability in Cases where no Special Contract. — It has already been seen^ that in cases where no express contract is entered into by the parties for the sending of the message, an action of contract is maintainable upon the legal fiction of an implied promise of the company to perform its legal duty in transmission. This action is based upon the duty of the company to transmit imposed upon it by express statute in most States, and by inference from the nature of its employment in the few States in which no such statutes exist.* There is, however, in such cases, an alternative liability in tort to the sender of the message in cases where the company has defaulted in its duty of transmission, this liability arising from the undertaking of transmission. The principle on which these actions are maintained is well stated by Professor Pollock, as follows : " When there is an undertaking without a contract, there is a duty antecedent to the undertaking, and if it is broken there is a tort and nothing else. The rule that, if there is a specific contract, the more general duty is superseded by it, does not prevent the general duty from being relied upon when there is no contract at all."^ The tort may be waived and an action of assumpsit brought on the fiction of an implied promise, as ' See cases ante, §§ 452, 453, and ^os«, ch. xxvi. ; axiA passim. 2 See post, §§ 494, 495. « Ante, § 452. 4 Supra, §§ 320-349. 6 Pollock, Torts, p. 43G ; Gladwell v. Steggall, 5 Bing. N. C. 733 ; Austin V. Great Western Ry. Co., L. R. 2 Q. B. 442. LIABILITY OF COMPANY FOR NEGLIGENCE. 409 has been shown above, ^ but the person injured by the default is not bound so to do, and may proceed in tort on the default of the company in its duty. The cases are not numerous in which no express contract for the transmission exists, most of the cases being, as was said in the i)receding section, cases where the rights and liabilities are fixed by an express contract. A few cases, however, have been brought on the liability in tort. Thus in Lane v. Montreal Telegraph Com- pany,2 the action is described in the report as being "for incorrectly transmitting a telegraphic message," and the court in deciding upon the measure of damages speaks of them as "flowing from the breach of the defendant's duty or contract." Again, in Stevenson v. Montreal Telegraph Com- pany,^ the action is distinctly one of negligence as set forth in the declaration. No averment of a promise or contract of any kind is made, but the action is based wholly on the breach of duty on the part of the telegraph company, although the court discusses the case as one of contract. Again, in the case of Squire v. Western Union Telegraph Company,'* the action was in "tort for neglecting to deliver a telegraphic message seasonably,"^ and, on principle and authority, the sender may in such cases sue in tort for negligence of the telegraph company in performing the duty of transmission, or may waive the tort and sue in contract on the implied promise. § 4G0. Liability iu Contract or Tort to Addressee, English Cases. — The liability of the telegraph company to the person to whom the message is addressed in cases of negligence is a matter of some difficulty. It is obvious that, except in the special cases mentioned in preceding sections,*^ there can be no contractual privity between the telegraph company and the person to whom the telegram is addressed, and, except in 1 Supra, § 452. 2 7 Up. Can. C. T. 23. » IG Up. Can. Q. B. 530. * 98 Mass. 232. ^ See also supra, § 446. ^ Supra, §§ 455, 456, 457. 410 THE LAW OP ELECTRICITY. those special cases, the contract of the telegraph company, whether express or implied, is with the sender of the message. On the question whether there is a liability in tort to the addressee, the courts have not been uniform. In England, the courts have settled the rule with great definite- ness, that there is no liability either of tort or contract (except in cases of agency) on the part of the telegraph company to the person to whom the message is addressed, and this whether the injury complained of is the delivery of an erroneous message, or a failure to deliver the message at all, that is, whether it be a case of misfeasance or non- feasance. ^ The question was first considered in the case of Playford v. United Kingdom Electric Telegraph Company, where the action was by the receiver for delivering a different message from the one sent by the sender, the error being a change in a price quoted in the message, whereby the receiver of the message was damaged ; and the court were of the opinion that the obligation of the telegraph company to use due care and skill in the transmission of the message arises entirely out of the contract with the sender, and that the person to whom the message was sent had no right of action against the telegraph company arising out of the breach of any duty on the part of the telegraph company. The plain- tiff sought to support his cause on a second ground, that he had a special property in the telegraphic message itself, and that, the message having been changed by the negligent trans- mission, a cause of action accrued to him for this change; but this ground was also denied by the court for the reason that no such property could, in the nature of things, exist in a telegra])hic message. § 461. Same Subject (continued). — In a subsequent case,^ 1 Playford v. United Kingdom Electric Telegraph Co., L. K. 4 Q. B. 700; Dickson v. Reuter's Telegraph Co., 2 C. T. Div. 62, 3 C. P. Div. 1; Feaver v. Montreal Telegraph Co., 23 Up. Can. C. P. 150. ^ Dickson v. Reuter's Telegraph Co., L. R. 2 C. P. Div. 62; 3 C. P. Div. 1. LIABILITY OF COMPANY FOR NEGLIGENCE. 411 where the injury complained of was the delivery to the plaintiff of a telegram which was intended for another person, the telegram being an order for goods, which order the plaintiff filled, and was damaged thereljy, the rule in Playford's case was sustained. In the later case the plain- tiff urged upon the court three grounds to support his action: first, that the telegram, as delivered by the company to the plaintiff, was a statement which was false to the knowledge of the telegraph comi)any, at least in the sense that it had the means of knowing that it was false, the action being in the nature of an action for false representation, which, l)cing acted upon by the plaintiff, led to his injury. The court, however, denied the validity of this ground, for the reason that it had been decided in that country in previous cases, in different kinds of actions, that an injury caused by a state- ment false in fact, but not so to the knowledge of the party making it, nor made with intent to deceive, will not support an action. The second ground urged by the plaintiff was that the telegraph company, in delivering a telegram for tlie sender, held itself out as being duly authorized to deliver the message as the agent of the sender, and that if it delivered a message which was not the message sent by the sender, this representation of its authority was false, and therefore the telegraph company should be held liable in the same way as a person who represents himself as authorized to enter into a contract as the agent of another is held to guarantee his authority. This ground, however, was denied by the courts, for the reason that, in the nature of things, the telegraph company does not act or profess to act as the agent of the sender of a message. It is merely a forwarder of the despatch. The third ground urged by the plaintift' was that the nature of the business carried on by the telegraph com- pany was such as required extreme accuracy, and therefoi'c, from its very nature, involved a lial)ility for inaccuracy; but the court held that this would be imposing u})on the tele- 412 THE LAW OF ELECTRICITY. graph company a liability inconsistent Avitli the real under- standing of mankind as to the duties the telegraph company undertakes and the liabilities it incurs, and would extend the primary undertaking of the telegraph company with the sender of the message into an implied undertaking with all mankind to guarantee every person against the consequences of the delivery of a message to the wrong party through any negligence of any one of its servants employed in the trans- mission of a message from the remotest part of the world. It is to be noted that in both these English cases there was no statute involved imposing any duty as to the careful transmission or delivery of messages upon the telegraph company. There was in Playford's case a statute requiring telegraphic apparatus to be " open for the sending and receiv- ing of messages by all persons alike, without favor or prefer- ence. " These two cases settled the law in England, as above stated. § 462. Same Subject, United States. — In the United States the English rule has not been generally adopted, and it may be said generally, as will be shown specifically in the follow- ing sections, that the telegraph company is liable to the person to whom the message is addressed for negligence in the transmission or delivery of the message. ^ A short exami- 1 Smith V. Western Union Telegraph Co., 83 K}'. 104 ; Western Union Telegraph Co. v. Dubois, 128 111. "248 ; Western Union Telegraph Co. v. Hope, 11 111. App. 289; New York & Washington Printing Telegraph Co. V. Dryburg, .35 Pa. St. 298 ; Western Union Telegraph Co. v. Fenton, 52 Ind. 1 ; Western Union Telegraph Co. v. Landis, 21 Week. No. of Cas. 38; De la Grange v. Southwestern Telegraph Co., 25 La. An. 383; Western Union Telegraph Co. v. Longwill, 21 Pac. Rop. 339; Western Union Telegraph Co. v. Richman, 19 Week. No. of Cas. 509; Aiken v. Western Union Telegraph Co., 69 la. 31; Western Union Telegraph Co. V. Allen, 66 Miss. .519; Western Union Telegraph Co. v. Clifton, 68 Miss. 307; Lee v. Western Union Telegraph Co., 51 ]Mo. App. 375 (the message was about employer's business, and held that he could recover) ; Wolfskehl V. Western Union Telegraph Co., 46 Hun, .542; Bell v. Dom. Telegraph Co., 3 Leg. News, 405; Watson v. Montreal Telegraph Co., 5 Leg. News, 87; Mentzner v. Western Union Telegraph Co., 62 LIABILITY OF COMPANY FOR NEGLIGENCE. 413 nation of tlie grounds upon which this liability may be main- tained will now be made. Several distinct grounds have been brought forward which may be enumerated as follows. First, a statutory duty; second, a i)ublic duty; third, a common-law obligation; fourth, an obligation as agent of both parties; fifth, a special property of the addressee in the message; sixth, a liability as for a false representation; seventh, a re})resentation of agency. These will be discussed in their order. The cases where the addressee was the principal, and the sender his agent, have been discussed above. ^ § 463. statutory Duty. — It is an elementary principle of law that if a statute imposes a certain duty upon a person or corporation, and the person or corporation defaults in this duty, a person injured by this default may have an action against the party defaulting, if the courts are of opinion that the intention of the legislature as expressed in the language of the statute, was to allow such a remedy.^ The question of whether such a remedy is intended by the legislature is a matter of construction for the courts.^ In almost every State, as has been seen previously,* statutes have been passed enjoining upon telegraph companies in varied terms, but with substantially the same result, the exercise of dili- gence in the transmission and delivery of messages. These statutes, therefore, furnish a sufficient reason for the differ- ence of decision between the English and the American courts on the point of liability of the telegraph company to N. W. Rep. 1 ; Western Union Telegraph Co. v. Dubois, 29 111. App. 21fl; Western Union Telegraph Co. v. James, 90 Ga. 254; Western Union Telegraph Co. v. Reynolds, 77 Va. 173 ; Conj^ers v. Postal Tele- graph Cable Co , 92 Ga. 619 ; Western Union Telegraph Co. i: Blance, 19 S. E. Rep. 255; Elsey v. Postal Telegraph Co., 15 Daly, 58. 1 Supra, §§ 455-457. « Pollock, Torts, pp. 23, 24, 168; Hardcastle on Statutes, pp. 115-121; Cooley on Torts, pp. 650-658. 8 Pollock, Torts, p. 168. * Ante, §§ 320-349. 414 THE LAW OF ELECTRICITY. the addrcscc of a message. The view of the American com-ts on this matter has heen well stated in Ellis v. American Telegraph Company. ^ The statutes in the State of Massa- chusetts, where this case arose, provide that telegraph com- panies should "transmit the same {i. e., messages), faithfully and impartially." The court says, "The leading feature of this enactment is that it in effect takes the business of con- ducting and managing a line of electric telegraph within this commonwealth out of the class of ordinary private occupa- tions, and makes it a quasi-public employment to be carried on with a view to the general benefit, and for the accommo- dation of the community, and not merely for private emolu- ment and advantage. Under this provision, an owner or manager of such a line becomes, to a certain extent, a public servant or agent." The court then proceeds to discuss the liability of the telegraph company, and after holding that the telegraph company is not liable as a common carrier or insurer of messages, says, " But although they ought not to be held to such a standard of diligence, they are not exempt from all responsibility for a want of fidelity and care in the exercise of the employment they undertake to carry on. There can be no doubt that, in the ordinary employments and occupations of life, men are bound to use due and reasonable care, and are liable for the consequences of carelessness and negligence in the conduct of their business to those sustain- ing loss or damage thereby. We can see no reason why this rule is not applicable to the business of transmitting mes- sages by telegraph." This was an action brought by the addressee of the message for damages caused by an error in the message as transmitted. S 464. Distinction between English and American Decisions. — In the English cases it was said that the duty of a tele- graph company is limited to a duty to the sender arising from the contract. In the United States it may be said, on 1 13 Allen, 226, 231. LIABILITY OF COMPANY FOR NEGLIGENCE. 415 the other hand, that there is a more extensive duty created by the statutes which supplements the duty arising towards the sender from the contract, and extends to the public at large, so far as they arc effected by the transmission of the message, unless the language of the statutes shows a more limited intent. One objection of the English courts to allowing an action of tort by the addressee, as was stated above, was that such an action would extend the obligation of telcgrai)li companies to a guarantee by the telegraph com- pany to all mankind against its own negligence, and that there was no warrant for so extending the obligation. This extension is precisely what is effected by the statutes above referred to (provided their language docs not indicate a more limited intent), which, by making the telegra})h a public servant, and imposing upon it the duty of diligence in its operations, has extended its obligations commensurately with its privileges to all the public; and actions of tort by the addressee of a message for default on the part of the telegraph company in this public duty of using due care in the transmission and delivery of a message, may well be supported on this ground.^ Whether the obli- gation extends to third parties is discussed in a later section. 2 § 465. Public Duty. — The duty of a telegraph company towards the addressee of a message arising from the public nature of the occupation, is in most States included in the ^ Ellis V. American Telegraph Co., 13 Allen, 226; Smith v. "Western Union Telegraph Co., 83 Ky. 104; Western Union Telegraph Co. v. DuBois, 128 111. 248-, Western Union Telegraph Co. v. Hope, 11 111. App. 289; Western Union Telegraph Co. r. Fenton, 52 Tnd. 1; De la Grange V. Southwestern Telegraph Co., 25 La. An. 383 ; Western Union Tele- graph Co. V. Allen, 66 Miss. 519; Lee v. Western Union Telegraph Co., 51 Mo. App. 375; Western Union Telegraph Co. v. DuBois. 29 111. App. 219; Western Union Telegraph Co. v. James, 90 Ga. 254 ; Western Union Telegraph Co. t\ Reynolds. 77 Va. 173 ; Mentzner v. Western Union Tele- graph Co., 62 X. W. Rep. 1. 2 Post, § 471. 416 THE LAW OF ELECTRICITY. statutory obligation above described, but there are a few States in which no statutes have been enacted expressly imposing upon telegraph companies duties to the public in the transmission and delivery of messages. In such States, however, a telegraph company is held to be none the less in a public employment,' and its obligation to use due care in the prosecution of this employment would seem to follow from the public nature of the employment in the same manner as all corporations or persons exercising such employ- ments are held bound to use reasonable care.^ In such cases, again, the situation of the telegraph company in the United States is so far different from that of the telegraph company in England that while in the latter country there might be no reason for extending the obligations of the telegraph company as to care beyond the sender of the message, in this country the duty should be co-extensive with the nature of the employment. § 466. Obligation to use Due Care. — In addition to the above grounds for sustaining the liability of a telegraph company in tort towards the addressee of a message, several other grounds for sustaining such actions in special instances exist. One ground exists in cases where the injury com- plained of consists in a delivery to the addressee of an erro- neous telegram, the error being caused by the negligence of the telegraph operator. In such case the ordinary rule that a person who undertakes to perform any action for another is bound to use reasonable care and skill in the performance, 1 Supra, §§ 5, 6. 2 Smith V. Western Union Telegraph Co., 83 Ky. 104; Ellis v. American Telegraph Co., 13 Allen, 226; New York & Washington Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298 ; Western Union Telegraph Co. v. Du Bois, 128 111. 248 ; Western Union Telegraph Co. V. Hope, 11 111. App. 289; De la Grange v. Southwestern Telegraph Co., 25 La. An. 383; Lee v. Western Union Telegraph Co., 51 Mo. App. 375; Western Union Telegraph Co. v. Du Bois, 29 111. App. 219; Western Union Telegraph Co. v. James, 90 Ga. 254 ; Western Union Telegraph Co. V. Reynolds, 77 Va. 173. LIABILITY OF COMPANY FOR NEGLIGENCE. 417 and will be liable for default therein, will be applied.^ Familiar instances of this rule are cases of persons under- taking to act as physicians being held bound to use reason- able care and skill in their occupation.^ It is true that until the telegraph company attempts to deliver the message to the person to whom it is addressed, it is not, under the Eng- lish view, under any obligation at all to him in regard to the message ; but it would seem that when it does actually deliver to him a written message, it is thereby performing an act affecting the receiver personally or pecuniarily in such a way as would bring it within the principle above stated.^ § 467. Common Agency of Telegraph Company. — A ground which has been urged upon the courts in some cases to sup- port the action of the addressee of a message for damages arising from negligence in the transmission or delivery thereof, is that the telegraph company may be considered, in a certain sense, the agent both of the sender and the receiver.* It is difficult to see in what sense the telegraph company may be considered the agent of the receiver of the message except in special cases where the sender is the agent of the receiver, or except as such agency may be founded upon the public duty of the telegraph company above declared, in which latter case this ground of support for the action by the addressee would be substantially the same as that already stated.^ Except as thus sipported, it is believed that this ground has no substantial foundation, and in fact the telegraph company does not occupy the position of an agent, although for convenience of phraseology it is sometimes thus spoken 1 Ellis V. American Telegraph Co., 13 Allen, 226. 2 See note to Playford v. United Kingdom Electric Telegraph Co., Allen's Telegraph Cases, p. 455. 8 See also post, §§ 469, 470, New York & Washington Priutiug Telegraph Co. V. Drybnrg, 35 Pa. St. 298. * Aiken v. Western Union Telegraph Co., 5 S. C. 358. 6 Supra, §§ 404, 465. 27 418 THE LAW OF ELECTRICITY. of. In reality the telegraph company is a mere forwarder of despatches as a public agent. ^ § -iiQS. Special Property in Message. — Another ground which has been urged for the support of the action by the addressee is that he has an alleged special property in the message which will support an action by him if the message is changed, on the same principle that would allow a consignee to sue in case of damage to goods by a common carrier, in which he has a special interest. This ground, however, has been well disposed of by the English courts, as above stated,^ and can- not be maintained, for there is no such special property in the message. § 469. Changed Telegram as False Representation. — Another ground upon which an action by the receiver of a message which has been changed in the course of transmission is supported is that when the telegraph company delivers to a person a message which is different from the message given to the company for transmission by the sender, the telegraph company in fact makes a representation to the receiver which is false, and which the telegraph company by the exercise of due care might have known to be false. This ground was urged upon the court in Dickson's case in England, and was rejected by the court in that case,^ the court holding that it is essential in such cases that the repre- sentation should be either made with intent to deceive, or should be false to the knowledge of the person making it, neither of which conditions generally exists in cases for the delivery of erroneous messages. This ground is, however, sustained in at least one of the United States.* § 470. Profession of Authority as Agent. — Another ground which has been urged in support of an action by the addressee 1 Playford v. United Kingdom Electric Telegraph Co., L. R. 4 Q. B. 706. 2 Supra, § 460. ' Supra, § 461. * IVIay V. Western Union Telegraph Co., 112 Mass. 90; see supra, § 46G ; and see next section. LIABILITY OP COMPANY FOR NEGLIGENCE. 419 for damages caused by the delivery to him of an erroneous message by the tclegrai)h company, is that the company Ity delivering the message in effect represents itself as being the duly authorized agent of the sender to deliver such a mes- sage, and that if the message delivered is not the message which it was authorized to deliver, this presents a case similar to one where a person professing to be an agent for the formation of a contract is in fact not authorized to make the contract; in which case he is held personally liable to the person with whom the contract is made, on the ground that he, having represented himself as authorized to make it, is personally responsible for any injury caused by this false representation. This ground was brought Ijefore the courts in Dickson's case,^ and there rejected. It was, how- ever, sustained in a case in Massachusetts.^ In this case the plaintiffs, being a firm transacting business in Boston, and having a branch firm in San Francisco, received a tele- gram from the branch firm ordering certain brass tubes. The telegraph company delivered this message properly, but, by negligence of its operators, repeated the delivery five days afterwards. The plaintiffs supposing this second delivery to be another message ordering additional tubes, forwarded the same, and thereby were damaged. They brought suit for the damages, and the defendant demurred. There were three counts to the declaration : the first alleging simply negligence; the second alleging that the defendant promised the plaintiffs that it was authorized by the San Francisco firm to send the message, and alleging a breach of this promise; and the third alleging that the defendant falsely represented that it was authorized to deliver the message, and caused the plaintiffs to send the goods and suffer damage. The court sustained the demurrer as to the second count, alleging the promise, but overruled it as to the first ^ Supra, § 461. " May i^. Western Union Telegraph Co., 112 Mass. 90. 420 THE LAW OF ELECTRICITY. and third. The court held that in such an action for false representation of authority to deliver a message, it is not necessary to allege that it was done with intent to deceive, or that the representation was false within the knowledge of the defendant. § 471. Limit to Parties who may sue in Tort. — Considering it well settled in the United States that the addressee of a message may sue in tort for negligence in the transmission or delivery of the message, his action being based upon the default of the telegraph company in the performance of its duty at common law and by statute as a public transmitter of telegraphic messages, yet it does not seem settled that this principle will be extended to other parties injured by the same default. Thus it was held in a case in Louisiana, where the facts were that certain sugar planters needing bisulphate of lime sent to a country storekeeper to buy some, and he, not having any, telegraphed to a New Orleans merchant to send some on, and the telegram, through the negligence of the telegraph company, was never delivered, — that the sugar planters could not recover, although they were injured by this negligence, because they were not in suffi- cient privity with the contract for sending the telegram to entitle them to recover. ^ This decision may perhaps better be supported upon the fact that the negligence of the telegraph company in not sending the message was not the proximate cause of the damages to the sugar planters, a principle which will be discussed later. ^ In a case in Indiana, however, under the statute of that State, the action was extended in favor of a third person who was not either the sender or receiver of the message, nor the principal of either. ^ In this case the message was sent by A. to B., asking him to employ C. The message was not delivered to B., as the messenger could 1 Deslottes v. Baltimore, etc. Telegraph Co., 40 La. An. 183. 2 Post, §§ 574-581. 3 Western Union Telegraph Co. v. McKibben, 114 Ind. 511. LIABILITY OP COMPANY FOR NEGLIGENCE. 421 not find B. at his office or his house. The operator at the receiving office then told the messenger to find C, and an attempt was made to do this, but was not successful. The receiving office then sent back a message to the sending oftice saying that the message could not be delivered, and this second message was transmitted to A., who thereupon assented to the non-delivery, and made no further efforts to reach B. C. afterwards brought suit, and the telegraph company defended on the ground that it had employed all reasonable diligence to find both B. and C. ; that C, not being either the sender or the receiver of the message, had no right to sue for damages; and that the contract with A. exempted the company especially from any suit for damages unless claim was made for the same within a certain time limit. The court overruled all the defences, holding that C. 's right of action was based on the fact that under the statute he was a person injured by the non-transmission of the message, and that his riirht of action thus accruino- could not be affected by any stipulations in the contract between A. and the telegraph company, nor did it depend upon a contract relation with the telegraph company; and that, furthermore, the fact that A. had afterwards assented to the non-delivery of the message to B. did not affect C. 's right of action unless A. were considered to be the agent of C. for the purpose, and this agency did not appear to be sustained by anything in the facts. § 472, Limitation of the General Rule. — Although, as has been seen in the United States, the courts have in most States established the rule that the addressee of a telegraphic message may maintain an action of tort for the negligence of the company in its transmission, yet the decisions are not wholly uniform on this point, and it may be considered in some States to bo still an open question whether such an action would be maintained at all, and if so, in what cases. The federal courts seem inclined to follow the Ensxlish rule 422 THE LAW OP ELECTRICITY. to a certain extent, and to hold that such an action cannot be maintained in cases of mere non-feasance.^ § 473. Rule as affected by Language of the Statute. — As this rule depends generally upon statutory provisions impos- ing the duty of care upon telegraph companies, it may be modified by the language of the statute. In several States, as will be seen by reference to the preceding chapter where the statutes are set forth at length, the receiver of a message is, by the express language of the statute, named as a party having a remedy against the telegrapli company. ^ On the other hand, the language of the statute may restrict the remedy to the sender of the message.^ Thus, it has been held in Indiana, where an action was brought upon a penal statute by the person to whom the message was sent, that the sender of the message is the only person who is entitled, under that statute, to sue the telegraph company for the penalty.* In the case of Western Union Telegraph Company V. Kinney the facts were that the plaintiff, who was intend- ing to leave his residence for a time, told his son to forward to him any telegrams which might be received addressed to him. A message was received after the departure of A., and the son forwarded it verbatim, using the signature of the original sender, but changing the date of the message to the place where the son was and A. resided. The message ■was not delivered promptly, and A. brought suit for the statutory penalty. The telegraph company defended on the ground that A. was not, in fact, the sender of the message, and that the only person who could recover the statutory 1 Western Union Telegraph Co. v. Wood, 6 C. C. A. 432. 2 See supra, §§ 320-349. 8 Western Union Telegraph Co. v. Kinney, 106 Ind. 468; Western Union Telegraph Co. v. Scircle, 103 Ind. 227 ; Hadley v. Western Union Telegraph Co., 115 Ind. 191. * Western Union Telegraph Co. v. Kinney, 106 Ind. 468; Western Union Telegraph Co. v. Reed, 96 Ind. 195; Western Union Telegraph Co. V. Scircle, 103 Ind. 227. LIABILITY OP COMPANY FOR NEGLIGENCE. 423 penalty was the actual sender. It may be questioned whether this was a correct decision, for the son was, in fact, the agent of the father, and the sending of the message by him with the changed date was, under the circumstances, the same as if he had telegraphed in his own name to the following effect, " I have just received a message from So- and-so as follows." This decision shows that the original sender of the message is considered the party to whom the statutory penalty accrues. ^ In a later case in the same State suit was brought by the receiver of the message for the statu- tory penalty, a new statute having in the mean time been passed which provided that the action might be brought by " any party aggrieved " by the negligence. The court, how- ever, held that the later statute was not meant to change the class of persons to whom the remedy was given, and that the phrase "party aggrieved " must be considered to mean the same as the words of the original statute. ^ The court, how- ever, intimated that the person receiving the message might, in such a case, have an action for special damages under another section of the statute which created such a right of action. 1 Western Union Telegraph Co. v. Kinney, 106 Ind. 468. 2 HadJey v. Western Union Telegraph Co., 115 Ind. 191. 424 THE LAW OF ELECTRICITY. CHAPTER XXIV. PENAL STATUTES AS TO TELEGRAMS. § 474. Nature of the Liability. § 483. Void Contract. 475. Peual Statutes construed strictly. 484. Statute not effective outside of 476. Instances of Construction. State. 477. More liberal Construction. 485. Constitutionality of Statute. 478. No Penalty for harmless verbal 486. Change in Penal Statutes. Errors. -187. Effect of Repeal on Right of 479. Bad Faith, Partiality. Action. 480. Failure to Transmit. 488. Averments necessary in Action. 481. Prepayment of Toll, Waiver. 489. Defence by Company. 482. Statutory Liability cannot be 490. Jurisdiction of Action. Avoided by Contract. § 474. Nature of the Liability. — In many of the States the statutes relating to the operations of telegraph companies, which have been given in full in a previous chapter, ^ enact that a default of the company in the performance of its duties thereunder shall give rise to a penalty or forfeiture on its part of a certain sum, which may be recovered either wholly or partially by the person injured by the default. Several points have been ruled by the courts in relation to actions brought on these statutes, which vary from the ordinary rulings in actions of either contract or tort, and give this liability of the telegraph company somewhat peculiar features. The statute which has received the fullest judicial construc- tion, so far as its penal character is concerned, is the statute of Indiana, which is given in a preceding section.^ In the following sections will be given such rules as have been decided especially with reference to this class of actions. § 475. Penal Statutes construed strictly. — All the statutes referring to the duties and obligations of telegraph com- panies in the transmission and delivery of messages, which 1 Supra^ ch. xv. 2 § 327. PENAL STATUTES AS TO TELEGRAMS. 425 inflict a penalty upon the telegraph company for failure to comply with the requirements, are construed strictly like all other penal statutes, and will not be extended by con- struction to include cases which do not fall within the language of the statute. ^ Thus an act which imposes a penalty on telegraph companies for refusing to transmit over its wires to localities on its line any message tendered for transmission, will not be held by construction to include a penalty for refusal to deliver the message. ^ Neither will such a statute give a right of action for the penalty against a telegraph company for the wilful disclosure by one of its employees of the contents of a telegram. This is by statute generally made a criminal offence subject to fine; 3 but it is held that the penal statute which simply requires the transmission of messages with good faith and without partiality cannot be enlarged by construction so as to prohibit a wilful disclosure of a message.^ § 476. lustancea of Construction. — It has, however, been held that a statute imposing a penalty for failure to transmit and deliver messages with due diligence covers a case of delcnj in transmitting, even though another statute limits the obligation of telegraph companies to deliver messages free to a certain distance from its own office, the place addressed being in this case outside of the delivery district, for the statute as to delivery limits only the duty imposed by the penal statute as to delivery, and does not affect the scope of the statute as to the transmission of the message.^ It has ^ Brooks V. Western Union Telegraph Co., 56 Ark. 224 ; Western Union Telegraph Co. v. Axtell, 69 Ind. 199; Western Union Telegraph Co. v. Wilson, 108 Ind. 308; Connell v. Western Union Telegraph Co., 108 Mo. 462 ; Rogers v. Western Union Telegraph Co., 78 Ind. 169 ; Western Union Telegraph Co. v. Mossier, 95 Ind. 29 ; Langley r. Western Union Telegraph Co., 88 Ga.777; Wilkins v. Western Union Telegraph Co., 68 Mis.-^. 6. * Brooks r. Western Union Telegraph Co., supra. Cf. post, § 480. * Supra, § 436 et seq. * Western Union Telegraph Co. v. Bierhans, 8 Ind. App. 563. ^ Horn V. Western Union Telegraph Co., 88 Ga. 538. 426 THE LAW OF ELECTRICITY. been held, under a statute which inflicts a penalty upon "tele- graph companies engaged in the business of telegraphing for the public for hire," that a complaint under the statute which alleges that the telegraph company in question is engaged in the business of transmitting telegraphic messages for hire, is not sufficient since it leaves out the necessary allegation that the business is done for the public. ^ § 477. More liberal Construction. — Yet since these statutes are meant to regulate the operations of the telegraph com- pany for the good of the public, it has been said in some cases that they are not to be considered strictly penal in their nature, and that they should be construed strictly, yet equitably ^ and reasonably, so as not to defeat the plain intent of the legislature.^ § 478. No Penalty for harmless verbal Errors. — In view of the fact that under the provisions of a penal statute enforcing the obligation of care in transmitting messages the plaintiff may recover the penalty without having suffered any sub- stantial damage, the courts have in recent cases been inclined to restrict the operation of such statutes by limiting the scope of the statute to promptness in transmission, or by holding that the penalty is not incurred by verbal mistakes in the transmission of a message which are harmless, and do not cause injury to the complainant, and this even where the statute provides that messages must be transmitted with due diligence, leaving the person injured by such verbal error to his remedy by civil action against the telegraph company.* § 479. Refusal, Bad Faith, Partiality. — In construing penal statutes, as above stated,^ the courts construe them strictly, 1 Western Union Telegraph Co. v. Axtell, 69 Ind. 199. 2 Western Union Telegraph Co. v. Gougar, 84 Ind. 176. 8 Western Union Telegraph Co. v. Hamilton, 50 Ind. 181. * Western Union Telegraph Co. v. Rountree, 92 Ga. 611; Wolf v. Western Union Telegraph Co., 19 S. E. Hep. 717; Western Union Tele- graph Co. V. Clarke, 71 Miss. 157. 5 § 475. PENAL STATUTES AS TO TELEGRAMS. 427 and liokl that a person seeking to recover the penalty must bring liimself within the letter and spirit of the statute. For this reason it is held that when the statute provides a penalty for refusal to transmit a message, the plaintiff can- not recover his penalty by evidence showing a mere negligence in the transmission. He must show the actual refusal by the company to receive and transmit the message.^ But it is generally held that allegations of lack of good faith and delivery out of order are not essential in an action under a statute which prescribes transmission in good faith and in order of receipt, as well as with due diligence, since the gist of the statute is the transmission with due diligence.^ So under a similar statute, where the offence was a total fail- ure to transmit a message, it was held that it was not neces- sary to allege bad faith, in an action brought for damages caused by the failure to transmit ; that the duty under the statute was threefold: 1st, to transmit; 2d, to transmit with impartiality ; 3d, to transmit with good faith, and that a fail- ure in the first respect was sufficient to incur the penalty. ^ § 480. Failure to Transmit. — The statutcs M'hich provide a penalty for failure to transmit messages with promptness have been subject to the consideration of the courts in a few cases, upon the question whether the phrase " failure to trans- mit" includes a failure or negligence in the delivery as welL Under a statute providing a penalty for failure to transmit, it was held in earlier cases that the transmission included by construction delivery also."^ But in other and better cases, under statutcs imposing such a penalty on a telegraph com- 1 Frauenthal v. Western Union Telec^raph Co., 50 Ark. 78. ' "Western Union Telegraph Co. v. Ward, 23 Ind. 377; Western Union Telegraph Co. v. Gougar, 64 Ind. 176. 8 Burnett v. Western Union Telegraph Co., 39 Mo. App. 599. * Little Rock & Fort Smith Telegraph Co. v. Davis, 41 Ark. 79; Brashears v. Western Union Telegraph Co., 45 Mo. App. 433 (but this ■was overruled in a later ca.se, Dudley v. Western Union Telegrapli Co., 54 Mo. App. 391); Western Union Telegraph Co. v. Gougar, 84 Ind. 176. 428 THE LAW OF ELECTRICITY. pany, it has been held that a refusal or neglect to deliver the message after it had been duly transmitted over the wires to the place to which it had been addressed, was not included within the statutory penalty. ^ And it has been held that a statute which simply provides a penalty for failure to transmit is not broad enough to cover an erroneous trans- mission.2 § 481. Prepayment of Toll, Waiver. — These statutes being penal, it is held that if the duty of the telegraph company to transmit is declared to be conditional upon the prepayment of the charges of transmission, the company will not be liable for the penalty under the statute unless the charges are prepaid or tendered by the sender, or unless there was failure to deliver or delay in delivery on or after prepayment or tender by the person to whom the message was sent, or his agent. 3 So also, if a message is sent over the telegraph requiring a reply, and the charge for this reply is to be collected from the person who sends the original telegram, the person who sends the answer cannot recover the statutory penalty for negligence or error in the transmission or delivery of the message, if the statute requires a payment or tender of the charges of the telegraph company before the duty of transmission is imposed upon the company, and no such pay- ment or tender has been made. The fact that the company waives this right and sends the message without requiring payment in advance, is not equivalent to the payment or tender which is necessary under the terms of the statute.* Nor is a tender which is withdrawn sufficient.^ But if the » Brooks I'. Western Union Telegraph Co., 56 Ark. 224; Connelly. Western Union Telegi-aph Co., 108 Mo. 459 ; Dudley v. Western Union Telegraph Co., 54 Mo. App. 391. 2 Wilkins v. Western Union Telegraph Co., G8 Miss. 6. 8 Langley v. Western Union Telegraph Co., 88 Ga. 777; Western Union Telegraph Co. v. Mossier, 95 Ind. 29. * Western Union Telegraph Co. v. Mossier, 95 Ind. 29. 6 Western Union Telegraph Co. v. Power, 21 S. E. Hep. 51. PENAL STATUTES AS TO TELEGRAMS. 429 payment be made, refunding the money will not release the' company. 1 § 482. Statutory Liability cannot be avoided by Contract. — The courts have held that a telegraph company cannot escape liability for the statutory penalty by any stipulation in the telegraph blank or contract limiting its liability for negli- gence or misconduct. The statute, being penal, overrides the contract not only when the action is brought by the receiver of the telegram, but by the sender, with whom the company has a contract relation. ^ When a statute simply declares the duties and liabilities of telegraph com- pany in respect to negligence without imposing any penalty, it is in many States held that, in an action brought for special damages, the special contract limits the statutory duty. 3 § 483. Void Contract. — The right to recover the statutory penalty rests upon a valid contract or obligation for the transmission of the message. Therefore if the contract for transmission is void, or if there is no obligation of trans- mission, as if the message is delivered to the telegraph company on Sunday, the sender cannot recover the penalty for failure to transmit.^ § 484. Statute not effective outside of State. — The statutes of a State imposing penalties upon telegraph companies for negligence in the transmission or delivery of a telegram, or for breach of other statutory duties, have no force and effect beyond the limits of the State in which they are enacted, for the reason that if they were allowed extraterritorial force 1 Western Union Telearaph Co. v. Moss, 21 S. E. Rep. 63 ; Western Union Tt-legraph Co. v. Buchanan , 35 Ind. 429 ; Western Union Tele- graph Co. r. Briorlitwill, 21 S. E. Rep. .518. 2 Western Union Telegraph Co. v. Young, 93 Ind. 118; Western Union Telegraph Co. v. Adams, 87 Ind. 598; Western Union Telegraph Co. V. Buchanan, 35 Ind. 429; Western Union Telegraph Co. r. I^Ieredith, 95 Ind. 93; Burnett v. Western Union Telegraph Co., 39 Mo. App. 599. 8 Western Union Telegraph Co. v. Fenton, 52 Ind. 1 ; see post, § 514. * Rogers i;. Western Union Telegraph Co., 78 Ind. 169, see supra, §§ 354-308. 430 THE LAW OF ELECTRICITY. they would constitute an interference with interstate com- merce, as has been seen in previous sections.^ Accordingly, it is generally held that if the wrongful act for which the penalty is claimed took place without the State, the penalty cannot be recovered. ^ In Indiana, however, by a curious series of decisions, the courts have been led to hold that the test of whether the penalty can be recovered is the question where the contract for transmission is made; for they say that the action for the penalty depends upon a default or breach of the duty of transmission created by the contract entered into with the sender of the message, and that the question whether or not a breach has occurred must be decided where the contract was made, no matter where the wrongful act constituting the breach took place,^ and if the contract for transmission was made outside the State, and the default occurs within, e, g., delay in delivery, no penalty accrues.* § 485. Constitutionality of Statute. — The result of this test is that, if the message was delivered to the telegraph com- pany in Indiana for transmission to a point outside the State, and delay or error occurs in the delivery at such point out- side the State, the courts of Indiana will nevertheless hold that the sender of the message may recover the penalty because the breach of contract is considered to have taken place where the contract was made, that is, in Indiana.' This evidently results in the statute of Indiana being given an extraterritorial force and becoming a regulation of the 1 Supra, §§ 51, 416, 417; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347. 2 Connell v. Western Union Telegraph Co., 108 Mo. 459. 8 Carnalian v. Western Union Telegraph Co., 89 Ind. 526; Western Union Telegraph Co. v. Meredith, 95 Ind. 93 ; Western Union Telegraph Co. V. Reed, 96 Ind. 195; Western Union Telegraph Co. v. Ferris, 103 Ind. 91. 4 Rogers v. Western Union Telegraph Co., 122 Ind. 395, 5 Western Union Telegraph Co. v. Meredith, 95 Ind. 93; Western Union Telegraph Co. v. Pendleton, 95 Ind. 12; Western Union Telegraph Co. V. Ferris, 103 Ind. 91. PENAL STATUTES AS TO TELEGRAMS. 431 deliveries of telegrams in other States, and therefore an interference with interstate commerce. The Supreme Court of the United States has for this reason been obliged to declare the statute of Indiana as thus interpreted unconsti- tutional. ^ The State courts had previously maintained that the statute was constitutional as a valid exercise of the police power of the State ;2 but the Supreme Court of the United States held that this police power must be limited in its exercise so as not to conflict with the Federal constitu- tion. So far, however, as such statutes are interpreted as regulating telegraph operations only within the State in which they are enacted, and applying only to defaults occurring in the State, they are constitutional and valid. ^ § 486. Change in Penal Statutes. — The legislatures in twO "Western States, about the year 1885, made an important change in the penal statutes relating to telegraph companies. Previous to that time a penalty was laid upon the company for negligence in the transmission and delivery of messages, this being in addition to the action for special damages caused by the injury. The hardship of the penal statute, imposing a penalty which might be and often was largely in excess of the damages caused by the negligence of the com- pany, led the legislatures, in the year stated, to restrict the liability of the company for a fine or penalty to cases where the company actually refused to accept, transmit, or deliver the message. Following the policy of the legislature in this regard, the courts have refused to extend the meaning of the language of the statutes in such cases to include mere negli- gence, and have adhered strictly to the literal interpretation of the statutes, and require the plaintiff who seeks to recover 1 Western Union Telegraph Co. v. Pendleton, 122 U. S. 347. 2 Western Union Telegraph Co. v. Pendleton, 95 Ind. 12; Western Union Telegraph Co. v. Meredith, 95 Ind. 93. 8 Connell v. Western Union Telegraph Co., 108 IVIo. 459; Western Union Telegraph Co. r. Michelson, 21 S. E. Rep. 169 ; Western Union Telegraph Co. i'. James, 90 Ga. 254, see supra, §§ 51, 416, 417. 432 THE LAW OF ELECTRICITY. the penalty to give evidence showing the refusal, and not, mere negligence.^ In Indiana another important change was made in the penal statute, whereby the penalty was discontinued as to mere negligence, and retained only in cases of bad faith, partiality, and discrimination on the part of the company. ^ Since this statute requires discrimination on the part of the telegraph company in order to make it liable, the penalty is not incurred by merely receiving inadvertently a message directed to a place not on the company's line, and failing to send it, the operator being new and not well acquainted with the various stations of the company. ^ § 487. Effect of Repeal on Right of Action. — The effect of the enactment of these later statutes upon the former ones relating to the transmission of telegrams was considered in a case in Indiana.^ In this case the question discussed was whether the repeal of the earlier statute by the later one deprived a plaintiff, whose right of action had already accrued before the repeal, of a right to sue. The court held, first, that a forfeiture of penalty under a penal statute is not a personal cause of action, and that the repeal of the statute before the person has actually obtained judgment deprives him of the right to sue; and further held, in accordance with the decision in Steele's case,^ that the later act repealed the earlier one; but sustained the action of the plaintiff by the help of a statute of that State, which expressly enacted that in cases where a 1 Little Rock & Fort Smith Telegraph Co. v. Davis, 41 Ark. 79, old statute; Frauenthal v. Western Union Telegraph Co., 50 Ark. 78, new statute; Hadley v. Western Union Telegraph Co., 115 Ind. 191. 2 Western Union Telegraph Co. v. Steele, 108 Ind. 163; Western Union Telegraph Co. v. Swain, 109 Ind. 405 ; Western Union Telegraph Co. V. Jones, 116 Ind. 361. 8 Peterson v. AVestern Union Telegraph Co., 37 N. E. Rep. 810. 4 Western Union Telegraph Co. v. Brown, 108 Ind. 538. 6 Western Union Telegraph Co. r. Steele, 108 Ind. 163. PENAL STATUTES AS TO TELEGRAMS. 433 penalty had already been incurred by any person or company, the repeal of the statute giving the j)cnalty should not affect the right of the person who was found entitled to the penalty, and lie might sue for it and recover it as if the statute creating it were still in force. § 488. Averments necessary in Action. — Several points of pleading and practice have been decided as to these statutes, which are as follows : In an action for the statutory penalty for failure to transmit a despatch, the complaint is sufficient if it states the main facts upon which the right of recovery is founded so as to bring the case within the language and spirit of the statute. ^ But the complaint is construed strictly, and it is held that it must allege that the telegraph company is engaged in the business of telegraphing for the public for hire, and the court will not construe the charter of the com- pany to supply this defect. An allegation that the company is engaged in the business of transmitting telegraphic mes- sages for hire is not sufficient.^ The complaint must at least refer to the statute on which the action is based. ^ Exculpa- tory matter forming part of the gist of the action must be denied in the complaint,'* but exceptions and provisions shielding the telegra{)h company must be pleaded by.it.^ The message need not be set out in full, since the action is for a default in duty and not on the message as a contract.^ If the plaintiff alleges that the telegram was delivered for 1 Western Union Telegraph Co. v. Huff, 102 Ind. 535 ; Greenberg i-. Western Union Telegraph Co., 89 Ga. 754. 2 Western Union Telegraph Co. v. Axtell, 69 Ind. 199 ; but cf. Western Union Telegraph Co. v. Adams, 87 Ind. 598 ; Western Union Telegraph Co. V. Roberts, 87 Ind. 377. 8 Kirby v. Western Union Telegraph Co., 57 N. W. Rep. 202, 60 N.W. Rep. 152. * Burnett v. Western Union Telegraph Co., 39 Mo. App. 599; Western Union Telegraph Co. v, Gougar, 84 Ind. 176. Cf. Western Union Tele- graph Co. v. Griffin, 1 Ind. App. 46. ^ Western Union Telegraph Co. v. Gougar, 84 Ind. 176. ^ Western Union Telegraph Co. v. Meredith, 95 Ind. 93. 28 434 THE LAW OF ELECTRICITY. sending on a certain day in one month, and the proof is that it was delivered on a certain day in another month, this variance is not necessarily fatal, as the time is only import- ant as identifying the despatch, and if it is sufiiciently iden- tified otherwise, the variation of time becomes unimportant. ^ § 489. Defence by Company. — In an action on a statute for the penalty for the negligent transmission of a telegraphic message, the defendant company, if it wishes to take advan- tage of any rules or contract stipulations or statutory ex- ceptions exempting it from the penalty, must allege and prove this exemption as a matter of affirmative defence. It cannot be given in evidence under a general denial, but must be set up by affirmative plea.^ If the penalty is for failure to transmit and deliver, the company cannot defend upon a rule restricting free delivery to a certain limit if it has not transmitted the telegram, for the penalty in such a case is incurred by the failure to transmit, and the failure to deliver is immaterial. 2 But if the action is based on failure to deliver, the rule as to free delivery may be a good defence.* § 490. Jurisdiction of Action. — As the action for a penalty is not an action of contract, it cannot be brought in any court where jurisdiction is limited to actions of contract.^ In Indiana, where the action is held to be based directly on the contract of transmission, this might be decided other- wise.^ Nor is jurisdiction in actions of injury to personal property sufficient,'^ nor replevin.^ 1 Western Union Telegraph Co. v. Kilpatrick, 97 Ind. 42. 2 Western Union Telegraph Co. v. Scircle, 103 Ind. 227; Western Union Telegraph Co. v. Gougar, 84 Ind. 17G. 8 Horn V. Western Union Telegraph Co., 88 Ga. 538. * Moore v. Western Union Telegraph Co., 87 Ga. 613. ^ Western Union Telegraph Co. v. Taylor, 84 Ga. 408 ; Baltimore, etc. Telegraph Co. v. Lovejoy, 48 Ark. 301. 6 Supra, § 484. '' Cases supra, note 5. 8 Baltimore, etc. Telegraph Co. v. Lovejoy, supra. SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS. 435 CHAPTER XXY. SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS, § 491. Special Contracts. § 500. Opinion in Aiken v. Western 492. Analogy of Bills of Lading. Union Telegraph Company. 493. Regulations or Contracts. 501. Same Subject {continued). 494. Considered as Regulations. 502. Same Subject {continued). 493. Stijmlatious considered as Regu- 503. Same Subject (cwi^«((e(/). lations of Business. 504. Regulations as affecting Actions 496. Message not on Company's of Tort by the Addressee. Blank. 503. Opinion in Ellis v. American 497. Assent presumed, when. Telegraph Company. 498. Considered as Part of Contract. 506. Liability depends on Notice. 499. Stipulations as affecting the 507. Exceptions to the Rule. Addressee. 508. Classification of Special Agree- ments. §491. Special Contracts. — The rights, duties, and liabili- ties conferred and imposed by law on telegraph companies in regard to the conduct of their business, in the absence of special contracts between the telegraph company and its customers, have been considered in the preceding chapters. Consideration will now be had of the various special agree- ments which are employed by the telegraph companies with a view to limiting their common-law liabilities in regard to the transmission of telegrams. Telegraph companies have in most cases prepared printed blank forms upon which the messages are to be written by the sender for transmission, and upon which the telegraph operator at the other end of the line copies the message for delivery to the addressee. These blank forms, of which specimens are given on the next page, contain various conditions and stipulations in regard to the liability of the company in the sending of the message, these conditions and stipulations being intended by the telegraph company to avoid or limit some of the liabilities cast upon 436 THE LAW OF ELECTRICITY. it by the law.^ The following sections will be mainly directed to the effect of these conditions and stipulations. 1 [Form No. 2.] THE WESTERN UNION TELEGRAPH COMPANY. incorporated. 21,000 Offices in America. Cable Service to all the World. Thos. T. Eckert, President and General Manager. Receiver's No. Time Filed. Check. Send the following message subject to the terms on the back hereof, which are hereby agreed to. 189 To READ THE NOTICE AND AGREEMENT ON BACK. All Messages taken by this Company are Subject to the Following Terms: — To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this Com- pany, that said Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any UNREPEATED mes- sage, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any REPEATED message, beyond fifty times the sum received for sending the same, unless specially insured, nor in any case for delays arising from unavoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this Company is hereby made the agent of the sender, without liability, to forward over the lines of any other Company when necessary to reach its destination. Correctness in the transmission of a message to any point on the lines of this Company can be INSURED by contract in writing, stating agreed amount of risk, and payment of premium thereon, at the following rates, in addition to the usual charge for repeated messages, viz., one per cent, for any distance not exceeding 1,000 miles, and two per cent, for any greater distance. No employee of the Company is authorized to vary the foregoing. No responsibility regarding messages attaches to this Company until SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS. 437 § 492. Analogy of Bills of Lading. — The usc of tbcsc printed fonus contaiiiiiig such cunditions and stipulations is analo- gous to the use of bills of lading and similar printed docu- the same are presented and accepted at one of its transmitting offices ; and if a message is sent to such office by one of the Company's messengers, he acts for that purpose as the agent of the sender. ]\Iessages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance, a special charge will be made to cover the cost of snch delivery. The Company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the Company for transmission. Thos. T. Eckert, President and General Manager. [Form No. IS.] NIGHT MESSAGE. THE WESTERN UXIOX TELEGRAPH COMPANY. INCORPORATED. 21,000 0FFiCEt3 IN America. Cable Service to all the World. Thos. T. Eckert, President and General Manager. Receiver's No. Time Filed. Check. Send the following night message subject to the terms on back hereof, which are hereby agreed to. 189 To. READ THE NOTICE AND AGREEMENT ON BACK. NIGHT MESSAGE. All Night Messages taken by this Company are Subject to THE Following Terms: — The Western Union Telegraph Company will receive messages, to be sent during the night, for delivery not earlier than the morning of the next ensuing business day. at reduced rates, but in no case less than twenty-five cents tolls for a single mc'sage. To guard against mistakes or delays, the sender of a message should order it REPEATED; that is, telegraphed back to the originating office 438 THE LAW OF ELECTRICITY. ments by common carriers, whereby they bring to the notice of parties consigning goods to tlieir care, the limitations to their common-law liability as insurers, which they wish to avail themselves of. As has been previously seen,i the law is well settled that telegraph companies are not liable as insurers as common carriers are. The question then arises, what effect these printed stipulations and conditions may have in the case of telegraph companies. § 493, Regulations or Contracts. — The first point for con- sideration is whether these conditions and stipulations on for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this com- pany, that said Company shall not be liable for mistakes or delays in the transmission or delivery, or for non-delivery of any UNREPEATED message, beyond the amount received for sending the same ; nor for mis- takes or delays in the transmission or delivery, or for non-delivery of any REPEATED message beyond ten times the sum received for sending the same, unless specially insured, nor in any case for delays arising from un- avoidable interruption in the working of its lines, or for errors in cipher or obscure messages. And this Company is hereby made the agent of the sender, without liability, to forward any message over the lines of any other Company when necessary to reach its destination. Correctness in the transmission of a message to any point on the lines of this company can be INSURED by contract in writing, stating agreed amount of risk, and payment of premium thereon, at the following rates, in addition to the usual charge for repeated messages, viz., one per cent, for any distance not exceeding 1,000 miles, and two per cent, for any greater distance. No employee of the Company is authorized to varythe foregoing. No responsibility regarding messages attaches to this Company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the Company's messengers, he acts for that purpose as the agent of the sender. Messages will be delivered free within the established free delivery limits of the terminal office. For delivery at a greater distance, a special charge will be made to cover the cost of such delivery. The Company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within thirty days after the message is filed with the Company for transmission. Tiios. T. EcKERT, President and General Manager. 1 Supra, §§ 377-379. SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS. 439 the printed blank forms are to be considered as forming a contract between the sender of the message and the telegraph company, or whether they are to be considered as regulations of the telegraph business merely. The theoretical differ- ence between these stipulations considered as regulations of the business or as agreements of the parties is obvious, for if they arc considered merely as regulations, the assent of the sender to them is not necessary, for they will bind him if brought home to his knowledge,^ whereas if they are held to be portions of a contract, the assent of the sender must be shown in order to bind liim.^ § 494. Considered as Regulations. — In SOme States the courts have held that these stipulations and conditions may be considered as rules and regulations of the business by the telegraph company, but cannot be considered as a contract. Thus in Bartlett v. Western Union Telegraph Company,3the court, speaking of such a printed blank form, says, " But it is dilficult to see on what ground it can be called a contract. While we concede that the forms of one have an existence, the substance is wanting. The parties are not in a condition to contract on equal terms. The company holds itself out to the public as in readiness to transmit all such despatches as may be presented for that purpose. The telegraph has created a necessity for its use. Business can be transacted without it only at a very great disadvantage. In most places there is no choice as to lines, and where there is, it is so limited that a virtual monopoly exists. On the other hand, the occasion for sending a message often comes sud- denly, or with so short notice as to leave no time for deliber- ation, or to examine and consider the terms offered. Under such circumstances, the sender seldom if ever reads what is printed on the blank, or gives any intelligent assent thereto. " 1 Post, § 495. 3 Post, § 498. 8 62 Me. 209, 218. 440 THE LAW OF ELECTRICITY. § 495. Stipulations considered as Regulations oi Business. — Considered as rules and regulations of the telegraph business, it is generally held that such rules and regulations estab- lished by telegraph companies for the conduct of their business, if reasonable, bind parties sending messages, if brought home to their knowledge, the assent of the sender being unessential, and that printing such rules and regula- tions upon the blank forms of the telegraph companies brings the rules and regulations to the knowledge of the person sending a message written upon such forms. ^ It will be seen later that the courts have held all the usual stipulations in telegraph blanks to be reasonable, except those which attempt to exempt the company from the consequences of negligence in the transmission and delivery of messages, and that as to this latter class of regulations there is a division of opinion in the courts of the various States. ^ § 496. Message not on Company's Blank. — If the message is not written on one of the company's blanks the decisions are not uniform as to whether extrinsic knowledge of the rules and regulations of the company by the sender of the message will bind him. On one hand, it has been held that in such a case there must be some evidence of his having assented to the regulations,^ while on the other, it has been held either that his assent is presumed, or that it is not necessary, since the regulations, being reasonable, will bind 1 Bartlett v. Western Union Telegraph Co., 62 Me. 209, 213; Wolf r. Western Union TeVgraph Co., 62 Pa. St. 83 ; Kiley v. Western Union Telegraph Co., 109 N. Y. 231 (but in this State mere notice is not enough unless shown to be brought to the personal knowledge of the party and assented to by him, and the matter is now regarded as one of contract in this State. Pearsall v. Western Union Telegraph Co., 124 N. Y. 256); Ellis v. American Telegraph Co., 13 Allen, 226; Birney v. New York & Washington Printing Telegraph Co., 18 Md. 341; Wann V. Western Union Telegraph Co., 37 Mo. 472; De Rutte v. New York, Albany & Buffalo, etc. Telegraph Co., 1 Daly, 547. 2 Post, § 508. 8 Pearsall v. Western Union Telegraph Co., 124 N. Y. 256. SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS. 441 those who have knowledge of them and dual with the comi)any.^ § 497. Assent presumed, when. — Whether it be considered that the assent of the sender of the message to the rules or regulations is necessary or not, it is conclusively presumed in cases where he writes the message upon a telegraph blank and signs it,^ § 498. Considered as Part of Contract. — Considering the conditions and stipulations printed on telegraph blanks not as rules and regulations of the business, but as forming a part of a special contract with the sender of the message, the rule is that the sender of the message, by writing it upon the printed blank, assents to the special agreements contained therein, and is bound by them, so far as they are held reasonable by the courts.^ § 499. Stipulations as affecting the Addressee. — IIow far these stipulations and conditions, if valid, affect the person to whom the message is addressed is a matter upon which the decisions are not uniform. It has already been seen,* that in many cases such person is in fact the principal, and the sender is his agent for the sending of the message, even where no express agency exists, if the message is for the benefit and concerning the business of the person to whom the message is sent. In such cases the stipulations, ^ Clement v. "Western Union Telegraph Co., 137 Mass. 463. ^ Redpath i'. Western Union Telegraph Co., 112 Mass. 71 ; Beasley v. Western Union Telegraph Co., 39 Fed. Rep. 181; Breese i'. United States Telegraph Co., 48 N. Y. 132; Cole v. Western Union Telegraph Co., 33 Minn. 227; Womack i'. Western Union Telegraph Co., 58 Tex. 179; Western Union Telegraph Co. v. Carew, 15 ^lich. 530. 8 True V. International Telegraph Co., GU Me. 9; Western Union Telegraph Co. v. Carew, 15 Mich. 525; Kileyy. Western Union Telegraph Co., 109 N. Y. 231; Ellis v. American Telegraph Co., 13 Allen, 226; Redpath v. Western Union Telegraph Co., 1 12 Mass. 71 ; Beasley r. NVestern Union Telegraph Co., 39 Fed. Rep. 181 ; Breese v. United Stales Telegraph Co., 48 N. Y. 132; Cole v. Western Union Telegraph Co., 33 Minn. 227 ; Womack v. Western Union Telegraph Co., 58 Tex. 179. * Supra, §§ 455-457. 442 THE LAW OF ELECTRICITY. whether considered as regulations or as part of the contract, would, if reasonable and valid, apply as well to the addressee of the message as to the sender, since the latter is but the agent of the former in the sending of the message, and the knowledge of the agent is the knowledge of the principal, and the contract of the agent binds the principal. ^ This point was discussed in a case in South Carolina, in which the court took the view that the receiver of a message which is sent for his benefit, and concerning his business, is in reality the principal, and the sender is but his agent, and therefore the principal is bound by the stipulations known to and assented to by the agent. S 500. Opinion in Aiken v. Western Union Telegraph Com- pany. — " The plaintiff is a privy to the contract under which the service was performed, and has a right to demand due performance. The contract in question is one of a peculiar class, as affecting questions of liability and privity arising under it. It is a contract with one exercising a public employment under express statute powers created for that purpose. The nature of the occupation of that class of persons, and the tender of their services to the community, makes them common agents for the transmission of messages for all persons who may desire and pay for such service, to any person, either as the final receiver of such message or as a means or agent for its further transmission. The object of the contract is to modify and limit the contract which, by operation of law, would arise between the common carrier of messages and any person employing such carrier, in the absence of any stipulation of terms between them. The 1 Breese v. United States Telegraph Co., 48 N. Y. 132 ; Beasley v. Western Union Telegraph Co., 39 Fed. Rep. 181 ; Aiken v. Western Union Telegraph Co., 5 S. C. 358 ; Western Union Telegraph Co. v. James, 90 Ga. 254; Aiken v. Western Union Telegraph Co., 69 la. 31; Massengale v. Western Union Telegraph Co., 17 Mo. App. 257; De La Grange v. Southwestern Telegraph Co., 25 La. An. 383. Compare j5osf, §§ 555-557, and ante, §§ 455-457. SPECIAL CONTRACTS FOB TRANSMISSION OF TELEGRAMS. 443 foundation of the contract is the nature of the carrier's occupation and the fact of employment. The legal conse- quences flowing from such employment arc what the special contract seeks to modify or limit. Every such contract implies a sender of a message, a receiver, and an agent of transmission. The nature of the contract is, in this respect, the same, whether the rights and duties of the respective parties are delined by operation of law or by express stipula- tions between themselves. It would, therefore, follow that the question whether the receiver of the message is a privy should receive the same solution, whether the contract is the result of the operation of law or of special terms of agreement between the parties. § 501. Same Subject {continued). — " The simplest form then, in which the question of the privity of the plaintill can be examined, is upon the assumption that a third person had delivered a message to the defendants for transmission to the plaintiff, in the delivery of which the plaintiff had a pecuniary interest, and without the stipulation of any terms of transmission. In the case supposed, would not the receiver, accepting such service, be bound to pay for it, and be entitled to demand due performance on the part of the carrier ? Clearly he would. §502. Same Subject {continued). — "The fact that the receiver had not directly conferred with the carrier as to the duty to be performed would be unimportant. The carrier who undertakes to carry for all dispenses with the necessity of knowing and dealing directly or personally with his employer. His offers of services are intended to meet the requirements of all cases where a message, in ordinary course, is to be transmitted. Such cases embrace those in which the message is transmitted for the benefit of the sender, those in which it is for the benefit of the receiver, and those in which it is for the mutual benefit of both sender and receiver. Construinc; his contract l)v the nature of the 44i THE LAW OF ELECTRICITY. service to be performed, it is clear that the party for whose benefit the service is to be performed is to be regarded as considered and included in the obligations resulting from the fact of employment, whether that person stands to it in the relation of sender or receiver. If such is the conclusion where the compensation for the service is not paid until the service is performed, it cannot be altered by the fact that the service is paid for in advance, nor by the consideration as to which one of the parties included paid it. The time when a consideration is paid, and the person by whom paid are not essential elements of the question, the parties to the obligation being clearly known by the objects intended by the contract. § 503. Same Subject {continued). — " It is equally clear that any stipulation of an express nature, intended to mould and limit the obligation, must be considered as attaching to the obligation in its fullest extent, and affecting equally all the persons related to it, either as sender, receiver, or agent of transmission. Under this view of the contract the plaintiff is entitled to enforce its provisions as a direct party in interest. " ^ § 504. Regulations as affecting Actions of Tort by the Addressee. — In actions by the person to whom the message is addressed where the action is simply an action of tort, the question whether the plaintiff can be held bound by the stipulations and conditions in the printed forms of blanks is one of considerable difficulty. In some States the courts have held that if there is no privity of contract between the telegraph company and the person to whom the message is addressed, he cannot be held bound by these stipulations, since they form a portion of the contract with the sender of the message, and this contract cannot affect the person to whom the message is sent;^ while in other States it is 1 Aiken v. "Western Union Telegraph Co., 5 S. C. 358. 2 New York & Wa.shington Printing Telegraph Co. v. Dryburg, 35 Pa. St. 298 ; Harris v. Western Union Telegraph Co., 9 Phila. 88 ; Western SPECIAL CONTRACTS FOB TRANSMISSION OF TELEGRAMS. 445 held that the person to whom the message is addressed can- not have any greater rights in an action of tort against the telegraj)h company than the sender of the message could have in an action on his contract, and if the regulations are reasonable ones for the conduct of the business, they bind parties having notice of them dealing Avith the company as receivers of messages, as well as parties dealing with it as senders of messages. ^ § 505. Opinion in Ellis v. American Telegraph Company. — In the ^lassachusctts case cited in the preceding section, the action was brought in tort against the telegraph company to recover damages resulting from an error in the transmission of a message from Boston to the plaintiff in New Bedford. The message as delivered to the telegraph company for trans- mission was written upon the usual printed form, and was presumably delivered to the plaintiff on a similar form. The court, after discussing the obligations of the telegraph company as to the transmission of messages, and maintain- ing that the company might limit its liability for negligence by express stipulations in the contract with the sender of the message, says, "The defendant company was entitled to insist on the compliance with that part of their regulations which require that the message should be repeated, and that the extent of the risk should be made known to them if they were to be held to insure the safe and correct transmission of the message, or, in case of failure, to be responsible for all the damages consequent on delays or errors. Of this regulation the plaintiff had notice. Although he entered into no express contract with the defendants, and cannot be held to have made any special stipulations with them by Union Telegraph Co. v. Fenton, 52 Ind. 1 ; Western Union Telegraph Co. V. Longwill, 21 Pa. Rep. 339; Western Union Telegraph Co. v. Richinan. 19 Week. No. of Cas. 509 ; Bell v. Dom. Telegraph Co., 3 Leg. News, 40.') ; Watson v. ^Mont. Telegraph Co., 5 Leg. News, ^7. » Ellis V. American Telegraph Co., 13 Allen, 226; Findlay v. Western Union Telegraph Co., 04 Fed. Rep. 4.59. Coin-pare post, §§ 555-557. 446 THE LAW OP ELECTRICITY. which he is bound, he did consent to receive at their hands a message which he alleges it was their duty to deliver to him. It is for this undertaking by the defendants, and for the breach of duty of which he alleges they are guilty, that he seeks to hold them in this action. It may therefore be a sufficient answer to such a claim, that according to the reasonable regulations by which they were governed in the performance of their undertaking towards the plaintiff, and of which he had notice, they have committed no breach of duty for which they can be held liable to him." The court then in addition supports the case upon another ground, i e., that the plaintiff claiming through the contract of the sender could have no higher rights than the sender could, and dis- tinguishes the case of New York & Washington Printing Telegraph Company v. Dryburg^ by the fact that in the latter case there was no proof that the receiver of the message had any notice or knowledge of the regulation of the company by which their liability was restricted. § 506. Liability depends on Notice. — The result of the foreQ-oino- decisions would seem to indicate that the true rule in actions of tort by the addressee of a message is that if the addressee of the message has notice or knowledge of the regulation of the telegraph company in question, as embodied in the blank printed forms, the regulation will bind him in dealing with the company if it is such a regulation as the courts consider reasonable, in application to the addressee of the message; 2 while if the addressee had no notice or knowledge of the regulation, even though it is valid as against the sender, the right of the addressee of a message to sue in tort for error or delay in the delivery will not be limited by the stipulations of the company contained in its printed forms.'' 1 35 Pa. St. 298. "^ Compare post, § 556. 8 Western Union Telegraph Co. v. Culberson, 79 Tex. 66 ; New York & "Washington Printing Telegraph Co. i;. Dryburg, 35 Pa. St. 298, 303 ; SPECIAL CONTRACTS FOR TRANSMISSION OF TELEGRAMS. -147 § 507. Exceptiona to the Rule. — If the message is not delivered to the addressee upon a printed form of the com- pany containing the regulation in question the addressee is not affected with notice thereof, unless it is shown by extrinsic evidence that he knew of the regulation.^ Further- more the exceptions to the rule allowing telegraph companies to exempt themselves from liability for negligence by special stipulation, which are discussed hereafter,^ namely, that the exemption will not cover cases of total failure to transmit the message or delay in the delivery, or other instances of negli- gence which would not be prevented by repetition, will apply also to suits brought by the addressee of the message, and in such case the exemption clause will not protect the tele- graph company, even in States where it is held otherwise to apply to the addressee as well as to the sender of the mes- sage.^ The discussion of the analogous question of how far the addressee of a message is bound by regulations limiting the time within which claims for damages against the com- pany must be presented to it, will throw some light upon this matter.'* § 508. Classification of Special Agreements. — The general subject of the validity of special agreements between the telegraph company and those dealing with it, having been considered, it now remains to discuss the various special agreements which have been embodied by the telegraph companies in their printed blank forms. These may be divided into eight subjects. First, stipulations exempting Ellis r. American Telegraph Co., 13 Allen, 226, 237; Western Union Telegraph Co. v. Fenton, 52 Tnd. 1 ; Herron v. Western Union Telegraph Co., 57 N. W. Rep. 69G; Findlay v. Western Union Telegraph Co., 64 Fed. Rep. 459; Western Union Telegraph Co. v. Hinkle, 3 Tex. Civ. App. 518 ; Thurston v. Western Union Telegraph Co., 33 Fed. Rep. 362. 1 Western Union Telegraph Co. v. Hinkle, 3 Tex. Civ. App. 518. 2 Pa<;^ §§ 523-527. 8 Thurston v. Western Union Telegraph Co., 33 Fed. Rep. 362. * See posl, §§ 555-557. 448 THE LAW OF ELECTRICITY. the company from liability for negligence. These stipula- tions are discussed at length in Chapter XXVI. Second, exemption of the company from liability for damages caused by unavoidable interruption of the working of its lines. This subject has been already considered, ^ in connection with the kinds of negligence for which the company is liable, and it is sufficient here to say that in most States the tele- graph company is not held liable for such damages even in the absence of an express stipulation to that effect. Third, an exemption from liability for errors in cipher or obscure messages. This subject is discussed fully in the chapter on the Measure of Damages. ^ Fourth, the liability for errors or negligence when the message is forwarded over connecting lines. This subject has been already discussed in Chapter XXII. Fifth, an agreement as to the insurance of the safe transmission of the message. This subject is discussed in Chapter XXVI., in connection with the stipulations exempt- ing the company from liability for negligence, of which subject it forms a part. Sixth, the presentation of messages to the company for transmission. This subject has been discussed in a previous chapter, ^ on the subject of the duty of the company to accept messages for transmission. Seventh, a stipulation as to the free delivery of the mes- sage within certain limits. This matter has been already- discussed,* in connection with the duty of the telegraph company as to delivery of the message. Eighth, a stipula- tion that claims for damages must be presented to the com- pany within a certain limited time. This subject is discussed at length in a succeeding chapter.^ 1 §§ 400-402. 2 pos/, §§ 588-604. 8 Ch. xvi. 4 §§ 416-417. 6 Ch. xxvii. LIABILITY FOR NEGLIGENCE BY SPECIAL AGUEEMENT. 449 CHAPTER XXYI. EXEMPTION OF TELEGRAPH COMPANY FROM LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. § 509. Exemption from Negligence. § 525. 510. Exemption from Gross Negli- gence. 511. Exemption from Ordinary Negli- 526. gence. 512. American Cases sustaining Ex- 527. emption. 528. 513. American Cases disapproving Exemption. 529. 514. Effect of Statutes on above De- 530. cisions. 515. Exemption from Damages from .531. Atmospheric Causes. 532. 516. Forms of Special Agreement. 517. Day Message Exemption. Kepe- 533 tition required, ICuglish Rule. 518. American Cases sustaining lie- 534, peating Clause. 535. 519. Kentucky Case. 520. Maryland Case. 536, 521. Missouri Case. 522. Massachusetts Case. 537, 523. Micliigan Case. 524. reuusvlvania Cass. Delay in Transmission or De- livery not covered by Ex- emption. Sending Message to Wrong Destination. Total Failure to Transmit. Failure to Transmit on account of State of Line. Waiver of E.xemption Clause. American Cases holding Exemp- tion invalid. Opini(m to tiiis Effect. Smith V. Western Union Tele- graph Company. Gillis V. Western Union Tele- graph Company. Same {continued). Night Messages. Exemption not sustained in some States. Exemption maintained in some States. Whether applicable to Receiver of Message. § 500. Exemption from Negligence. — One of the mOSt important stipulations which telegraph companies employ in the conduct of their business for the purpose of limiting their liability at law is a stipulation whereby the company is exempted from damages caused by the negligence of the company or its operators or servants in the transmission and delivery of telegrams. The special forms in which this stipulation has been embodied in the printed blanks of the telegraph companies will be given later and discussed separately, but first a general discussion will be had of whether or not such a stipulation in any form is h.'gal. 29 450 THE LAW OF ELECTRICITY. § 510. Exemption from Gross Negligence. — Whatever differ- ence of opiuion may exist, as will be shown later in this chapter,^ as to the legality of a telegraph company exempting itself from liability for ordinary negligence of its servants and operators, it has been held from the earliest cases, with but one or two exceptions, that a telegraph company cannot, by any contract, agreement, rule, regulation, or other device, exempt itself from the consequences of gross negligence on the part of the company or its operators or servants, and that any attempt so to do will be overruled by the courts as being against public policy. ^ The meaning of the term " gross negligence," and its application to such cases, has been considered fully in previous sections,^ and, as was there shown, it is difficult to assign any precise meaning to the phrase "gross negligence," and there is a tendency to disap- prove of this distinction as applied to telegraph companies, but it must be considered as well-settled law at the present time. § 511. Exemption from Ordinary Negligence. — As to the question whether a telegraph company may by special con- tract or regulations of its business exempt itself from the 1 Post, §§ 518-536. 2 Lassitei- v. Western Union Telegraph Co., 80 N. C. 334; Thompson V. AVestern Union Telegraph Co., 107 N. C. 449 ; Clement v. Western Union Telegraph Co., 137 Mass. 403; Redpath v. Western Union Tele- graph Co., 112 Mass. 71 : Grinnell v. Western Union Telegraph Co., 113 Mass. 299; Ellis U.American Telegraph Co., 13 Allen, 226; Western Union Telegraph Co. v. Buchanan, 35 Ind. 429, 441; Birkett v. Western Union Telegraph Co., 61 N. W. Rep. 645; Tyler v. Western Union Tele- graph Co., 60 111. 421; Western Union Telegraph Co. v. Crall, 3S Kan. 679 ; United States Telegraph Co. v. CTildersleve, 29 Md. 232 ; Candee v. Western Union Telegraph Co., 34 Wis. 471 ; Western Union Telegraph Co. V. Fontaine, 58 Ga. 433; Pegram v. Western Union Telegraph Co., 100 N. C. 28; Schwartz v. Atlantic & Pacific Telegraph Co., 18 Hun, 157; Western Union Telegraph Co. u. Xeill, 57 Tex. 283; Jones v. Western Union Telegraph Co., 18 Fed. Rep. 717; Gillis v. Western Union Tele- graph Co., 61 Vt. 461. 8 Supra, §§ 385-395. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. -i'A consequences of ordinary as distinguished from gross negli- gence on the part of the company, its operators or servants, in the transmission and delivery of messages, there is a decided difference of opinion in the various States. Some courts hold that a stipulation, regulation, or special agreement assented to by the party dealing with the company, and in its nature reasonable, may be employed by the telegrajth company to exempt itself from such liability.' This rule was adopted in England in the first case which brought up this point,^ the reasoning of the courts being that the company might lawfully limit its liability for any negligence except gross negligence by a special notice, provided the condition or stipulation or regulation of which notice was given was a reasonable one; and further, that a regulation exempting the company from liability for negligence in the transmission or delivery of a message unless the same was repeated, for which repetition a further charge was made, was a reasonable one considering the nature of the occupation of telegraphing, for it gave the public the opportunity of transmitting unim- portant messages for a small charge, or if it be a matter of importance, the sender might, at a moderate additional charge, have the message repeated, and so obtain a certainty almost of its being transmitted with perfect accuracy. § 512. American Cases sustaining Exemption. — In many of the United States the reasoning and rule of the English courts have been adopted, and the courts have established the rule that if the stipulation exempting the company from liability for negligence in transmitting and delivering mes- sages is reasonable, it will be sustained either as part of the contract of the company or as a reasonable regulation of the business of telegraphy. ^ The two principal forms of stipula- ^ See cases, post, § 512, note 3. 2 :\racAndrew v. Electric Telegraph Co., 17 C. B. 3. « Ellis V. American 'I elegraph Co., 13 Allen, 22G ; Grinnell v. Western Union Telegraph Co., 113 Mass. 229; Redpath v. Western Union Tele- 452 THE LAW OP ELECTRICITY. tions of this kind are that contained in the ordinary day blank, and that contained in what is called the " half rate " message blank or the "night message " blank, both of which are considered in later sections. ^ § 513. American Cases disapproving Exemption. — In others of the United States the courts have taken the broad ground that any stipulation or regulation, or other device, whereby a telegraph company seeks to exempt itself from liability for damages caused by the ordinary negligence of the company, its operators or servants, in the transmission and delivery of messages, is against public policy and void, at least as to such negligence, though if its language is broad enough, it may apply to other causes of liability, such as damages caused by atmospheric causes and similar causes. ^ The graph Co., 112 Mass. 71; Clement v. Western Union Telegraph Co., 137 Mass. 463 ; Aiken v. Western Union Telegraph Co. , 5 S. C. 358 ; Pass- more V. Western Union Telegraph Co., 78 Pa. St. 242 ; Schwartz v. At- lantic & Pacific Telegraph Co., IS Hun, 157 ; Kiley v. Western Union Telegraph Co., 109 N. Y. 231; Pearsall v. Western Union Telegraph Co., 124 X. Y. 267; United States Telegraph Co. v. Gildersleve, 29 Md. 232; Becker v. Western Union Telegraph Co., 11 Neb. 87; (now changed by statute, Kemp v. Western Union Telegraph Co., 28 Neb. 661 ; Western Union Telegraph Co. v. Lowrey, 32 Neb. 732) ; Birkett v. Western Union Telegraph Co., 61 N. W. Rep. 645; Western Union Telegraph Co. v. Neill, 57 Tex. 283 ; Womack c. Western Union Telegraph Co., 58 Tex. 176 ; Western Union Telegraph Co. v. Hearne, 77 Tex. 83 ; Jones v. West- ern Union Telegraph Co., 18 Fed. Rep. 717, Ark. (but see contra, Western Union Telegraph Co. v. Short, 53 Ark. 439) ; Hart v. Western Union Telegraph Co., 66 Cal. 579 (but see Western Union Telegraph Co. v. Cook, 61 Fed. Rep. 624); Wann v. Western Union Telegraph Co., 37 Mo. 472; Western Union Telegraph Co. v. Carew, 15 Mich. 525; Lassiter v. Western Union Telegraph Co., 89 N. C. 334 (but now overruled by Brown v. Postal Telegraph Cable Co., Ill N. C. 187). 1 Post, § 517 and § 535. 2 Post, § 515; American Union Telegraph Co. v. Daughtery, 89 Ala. 101 ; Daughtery v. American Union Telegraph Co., 75 Ala. 168; Gillis v. Western Union Telegraph Co., 61 Vt. 461; Smith v. Western Union Tele- graph Co., 83 Ky. 104 ; Camp v. Western Union Telegraph Co., 1 Mete. (Ky.) 164 ; Western Union Telegraph Co. v. Short, 53 Ark. 439 ; Marr v. Western Union Telegraph Co., 85 Tenn. 538; Brown v. Postal Telegraph LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEJIENT. 4o3 courts which hold this view base it upon the great importauco to the public of having messages safely transmitted, and the consequent necessity of holding telegraj)li cumjianies to a strict degree of diligence in the matter; and although in the case of individuals doing business together such a stipulation in a contract as would exempt the party transacting the business from liability for negligence might be reasonable and valid, yet the telegraph company has such an advantage in dealing with its customers from the fact that it has practically a mono})oly of the business of speedy transmission of message, and because the interests of the customers will not permit them to do without these facilities, that any con- tract which may be entered into between the parties is sub- ject to the inspection and revision of the court to determine its reasonableness, and that such stipulations as are placed upon the customer by the telegraph company, releasing it from its obligations to perform its legal duty, are unreason- able and against public policy. ^ § 514. Effect of Statutes on above Decisions. — While the above decisions are maintained by the courts generally upon grounds of public policy, and without special reference to Cable Co., Ill N. C. 1S7 ; Thompson v. Western Union Telegraph Co., 107 N. C. 449; Western Union Telegraph Co. v. Reynolds, 77 Va. 185; West- ern Union Telegraph Co. v. Cook, 61 Fed. Rep. G"24; Western Union Tele- graph Co.v. Meredith, 95 Ind. 93; Westeni Union Telegraph Co. r. Young, 93 Ind. IIS; Western Union Telegraph Co. v. Fenton, 52 Ind. 1 ; Western Union Telegraj^li Co. v. Blanchard, 08 Ga. 209 ; Western Union Telegraph Co. V. Shotter, 71 Ga. 700 ; Western Union Telegi'aph Co. v. Fontaine, bS Ga. 433 ; Telegraph Co. v. Griswold, 37 Oh. St. 301 ; Ayer v. Western Union Telegraph Co., 79 Me. 493 ; Bartlett i'. Western Union Telegraph Co., 62 Me. 209 ; Aiken v. We.stern Union Telegraph Co., 69 la. 31 ; Manville v. Western Union Telegraph Co., 37 la. 214; Hibbard v. Western Union Telegraph Co., 33 Wis. 558; Western Union Telegraph Co. r. Harris, 19 111. App. 347; Tyler r. Western Union Telegraph Co., 60 111. 421 : West- ern Union Telegraph Co. ;■. Graham, 1 Col. 230; Abraham v. Western Union Telegraph Co., 23 Fed. Rep. 315; Wertz v. Western Union Tele- graph Co. (Utah), 27 Pac. Rep. 172. * See cases supra, note 2, page 452. 454 THE LAW OP ELECTRICITY. any statutory obligations of telegraph companies, yet these grounds are sometimes re-enforced by the fact that to permit the telegraph company to avoid its liability for negligence by contract would be to allow it to annul the force of stat- utes expressly casting this liability upon it. The question whether if the statute commands the performance of a certain duty, parties upon whom this duty is cast may avoid it by contract with those in whose favor the statute operates, is one upon which no general rule can be laid down, the question in each case being the general purpose and intent of the statute, and whether it is advisable as a matter of public policy to allow such exemption. ^ There have been several cases, however, in which the courts have held that where a statute provides that telegraph companies shall be responsible for their negligence in sending messages, no contract between the telegraph company and those dealing with it will be legal which annuls the force of the statute. This has been so held in Wisconsin, ^ where the statute makes telegraph companies responsible for their negligence in sending messages, though the case was decided on another point; in Nebraska, where a similar statute exists;^ in California, where the statute requires telegraph companies to use "great care" in the transmission of messages;^ and ia Indiana.^ In a few States the legislatures have expressly enacted that stipulations exempting telegraph companies frona liability for their negligence shall be wholly or partially 1 Compare ante, § 463. 2 Cutts V. Western Union Telegraph Co., 71 Wise. 4G. 8 Western Union Telegrapii Co. v. Lowrey, 32 Neb. 732. 4 Western Union Telegraph Co. v. Cook, Gl Fed. Rep. 024. 6 Western Union Telegraph Co. v. Meredith, 95 Ind. 93 ; Western Union Telegraph Co. v. Young, 93 Ind. 118; Western Union Telegraph Co. V. Adams, 87 Ind. 598 ; Western Union Telegraph Co. v. Buchanan, 35 lud. 429 ; Western Union Telegraph Co. v. Meek, 49 Ind. 53. Semhle, contra, Sweatland v. Illinois & Mississippi Telegraph Co., 27 Iowa, 432. Cf. Supra, § 482, Sixxd post, § 548. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 455 void. Such statutes exist in Massachusetts,^ Miiiiicsota,^ and Nebraska.^ § 515. Exemption from Damages from Atmospheric Causes. — In many cases where stipulations exempting telegraph companies from negligence have been discussed, the courts have said that while such stipulations are not valid so far as they attempt to exempt the company from liability for its own negligence, yet they are so far valid that they will protect the company from liability for damages caused by atmospheric or electrical causes, or acts of third parties, which the company could not have foreseen or provided against. The real meaning, however, of such statements is that the telegraph company is not liable at law for damages resulting from such causes, even in the absence of special contract stipulations, as was stated in preceding sections.* § 516. Forms of Special Agreement. — Having considered the general subject of whether or not any agreement exempt- ing a telegrai)h company from liability for its own negli- gence, or that of its operators and servants, is valid, the next matter which comes for discussion is the validity of the two special clauses by means of which telegraph companies generally attempt to escape from their legal liability for negligence. Of course in States where the courts hold that any such attempt to evade this liability is against public policy and void, neither of these clauses has any validity.^ In States, however, where a reasonable stipulation against liability for negligence is allowed by the courts as valid,*' 1 Supra, § 333. » Supra, § 335. » Supra, § 338. * Supra, §§ 400-402 ; IManville t'. Western Union Telegraph Co., 37 la. 214; Tyler v. Western Union Telegraph Co., 00 111. 421 ; Western Union Telegraph Co. v. Tyler, 74 111. 168; True v. International Telegraph Co., 60 IMe. 9 ; Bartlett v. Western Union Telegraph Co., 62 Me. 209 ; Fowler V. Western Union Telegraph Co., 80 IMe. 381 ; Sweatland v. Illinois & Mississippi Telegraph Co., 27 la. 433; Telegi-aph Co. v. Griswold, o7 Oh. St. 301 ; Western Union Telegraph Co. v. Cohen, 73 Ga. 522. 6 Supra, § 513. « Supra, §§ 511, 512. 456 THE LAW OF ELECTRICITY. the question comes up whether the two clauses usually adopted by the telegraph company are reasonable. These two clauses are the exemption clause contained in the day message blank, and that contained in the night message blank. § 517. Day Message Exemption. Repetition required, Eng- lish Rule. — The usual form in which the telegraph company seeks to limit its liability for negligence in the transmission and delivery of day messages is as follows: "To guard against mistakes or delays the sender of the message should order it repeated, that is, telegraphed back to the originating office for comparison. For this, one half the regular rate is charged in addition. It is agreed between the sender of the following message and the company, that said company shall not be liable for mistakes or delays in the transmission or delivery or for the non-delivery of any unrepeated message, beyond the amount received for sending the same, or for mistakes or delays in the transmission or delivery or for non-delivery of any repeated message, beyond fifty times the sum received for sending the same unless specially insured, nor in any case for delays arising from unavoidable inter- ruption in the working of its lines, or for errors in cipher or obscure messages." The validity of this clause or similar ones has been considered in a great number of cases. The English courts in an early case ^ decided that such a stipula- tion is reasonable and valid, and will exempt the comi)any from liability for the negligence of its servants and operators. In this case the plaintiff sent his telegram subject to a con- dition by which the company charged half the usual price in addition for repeating the message, and stated that they would not be responsible for mistakes in the transmission of unrepeated messages, from whatever cause they might arise. The English statutes required the company, subject to such reasonable regulations as might be from time to time made 1 Mac Andrew v. Electric Telegraph Co., 17 C. B. 3. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 457 or entered into by the company, to send and receive messages for all persons alike, without favor or })refercnce. It was held that the regulation was rcasonalde so far as it required a message to be repeated, and provided tliat the com)»any would not be responsible for mistakes in unrepeated messages from whatever cause they might arise. It was held to be reasonable, as the pul)lic had an ojjportunity to transmit unimi)ortant messages for a small charge, and might secure accuracy in an important message at a moderate additional expense. § 518. American Cases sustaining Repeating Clause. — In the United States the courts are not unanimous in their decisions on this i)oint, and there are two well-defined currents of opinion. In many States tlic courts, following the reasoning given in the English case and other similar reasons, have held that the stipulation which requires a message to be repeated before the company can be held liable for damages arising by reason of the negligence of the company or its operators in sending the message is, considering the risks of the telegraph employment, a reasonable stipulation, and that the charge of an additional half rate for the repetition is also a reasonable charge for the extra work of repeating the message. In these States, therefore, the courts hold tliat the stipulation substantially as given above is valid and forms a portion of the contract with the sender of the message. ^ * Ellis V. American Telegraph Co., 13 Allen, 226; Grinnell v. Western Union Telegraph Co., 113 Mass. 299; Redpath v. Western Union Telegraph Co., 112 Mass. 71; Clement v. Western Union Telegraph Co., 137 Mass. 463; Passmore v. Western Union Telegraph Co., 78 Pa. St. 242; Kiley v. Western Union Telegraph Co., 109 N. Y. 231 ; Pear.sall t'. ^Ve.st- ern Union Telegraph Co., 124 N. Y. 267 ; Breese v. United States Tele- graph Co., 48 N. Y. 132 ; Bennett i-. Western Union Telegraph Co., 18 N. Y. S. Rep. 777; Birkett r. Western Union Telegraph Co., 61 X. W. Rep. 64.'! ; Riley v. Western Union Telegraph Co., 26 X. Y. Supp. 532. 28 N. Y. Supp. oSl ; Waiin r. Western Union Telegraph Co., 37 Mo. 472; Becker v. Western Union Telegraph Co., 11 Neb. 87 (now chaugetl by 458 THE LAW OF ELECTRICITY. § 519. Kentucky Case. — In the earliest case in which this point was considered,^ the court says, "I see no ground for saying that this condition is void. Without this pre- caution of repeating messages, mistakes by telegraph are unavoidable. And there is no principle of public policy that docs or should prohibit a telegraph company from being prudent enough to protect themselves from ruin by requiring such a condition in the transmission of messages. Had the message been repeated in this instance, the mistake would probably not have occurred, and it is idle to say that the defendants were bound for a compensation of fifty cents to insure the message unconditionally and absolutely against all mistakes." §520. Maryland Case. — In an early case in Maryland,^ the court sustained the validity of the exemption, though maintaining that it did not apply to the facts of that case. § 521. Missouri Case. — In an early case in Missouri,^ the court says, "Whether we regard telegraph companies as common carriers or as bailees, we see no reason why they may not specially limit their liabilities, subject to the quali- fication, however, that they will not be protected from the consequences of gross negligence. Deny them this right, and they will be utterly unable to protect themselves against statute; Kemp w. Western Union Telegraph Co., 28 Neb. 661; Western Union Telegraph Co. v. Lowrey, 32 Neb. 732) ; Western Union Telegraph Co. V. Neill, 57 Tex. 283; Womack v. Western Union Telegraph Co., 58 Tex. 176 ; Western Union Telegraph Co. v. Hearne, 77 Tex. 83 ; United States Telegraph Co. v. Gildersleve, 29 Md. 232 ; Hart v. Western Union Telegraph Co., 66 Cal. 579; Camp v. Western Union Telegraph Co., 1 Mete. (Ky.) 164; Western Union Telegraph Co. v. Carew, 15 Mich. .525; Lassiter v. Western Union Telegraph Co., 89 N. C. 334; Pegrara v. West- ern Union Telegraph Co., 97 N. C. 57, (overruled by Brown v. Postal Telegraph Cable Co., Ill N. C. 187); Western Union Telegraph Co. v. Elliott, 27 S. W. Ptep. 219. Cf. supra, §§ 511, 512. 1 Camp V. Western Union Telegraph Co., 1 Mete. (Ky.) 164. - Bimey v. New York & Washington Printing Telegraph Co., 18 Md. 341. 8 Wann v. Western Union Telegraph Co., 37 Mo. 472. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 450 the hazards and risks which arc incident to the bnsiness in which they are engaged. We sec nothing unreasonable in their declaring that they will not be responsible for unrepeated messages. " § 522. Massachusetts Case. — In an early case in Massa- chusetts this point was also decided.^ In this case the suit was an action of tort by the person to whom the message was sent for an error in the message. The trial court ruled that the telegraph company was bound to use ordinary care, attention, and skill in transmitting the message, in spite of the conditions and terms printed in the blank, but the Supreme Court granted a new trial. The opinion as touch- ing this point was as follows: "There can be no doubt that, in the ordinary employments and occupations of life, men are bound to the use of due and reasonable care, and arc liable for the consequences of carelessness or negligence in the conduct of their business to those sustaining loss or damage thereby. We can see no reason why this rule is not applicable to the business of transmitting messages by tele- graph. But the rule does not operate so as to prevent parties from prescribing reasonable rules and regulations for the management of their business, or establishing special stipu- lations for the performance of services, which, if made known to those with whom they deal, and directly or by implication assented to by them, will operate to abridge their general liability at common law, and to protect them from being held responsible for unusual or peculiar kinds of business. Of course a party cannot, in such way, protect himself against the consequences of his own fraud or gross negligence, or the fraud or gross negligence of his servants or agents. Nor can he escape all liability or responsibility in the performance of the service or duty which he under- takes. But he may, to a certain extent, in the mode above indicated, limit the extent of his liability, or graduate the 1 Ellis V. American Telegraph Co., 13 Allen, 226. 460 THE LAW OF ELECTRICITY. amount of his compensation according to tlie risk which he assumes, as well as by the nature of the service which he renders. It is upon this ground that it is held that a common carrier, although by the rules of law he is an insurer of the property entrusted to him, may regulate the extent of his liability by a notice, brought home to his employer and assented to by him either directly or by implication. This principle is especially applicable to an employment such as is carried on by the defendants, which is, in its nature, a public one, and which the party undertaking it is bound to exercise for every one who may seek his services, however onerous or hazardous may be the particular duty or labor which he is called on to perform," ^ §523. Michigan Case. — In Michigan ^ the court upheld this stipulation, saying "The regulation, therefore, of most, if not all, telegraph companies operating extensive lines, allowing messages to be sent by a single transmission for a lower rate of charge, and requiring a larger compensation when repeated, must be considered as highly reasonable, giving to their customers the option of either mode, according to the importance of the message or any other circumstances which may affect the question. And as the compensation ought always to be in proportion to the risk assumed, the provision in these regulations in reference to insurance must be regarded also as just and reasonable." § 524. Pennsylvania Case. — In an early case in Pennsyl- vania^ this point had a full discussion. The action was for error in the message, and was brought by the sender. The plaintiff contended that the stipulation was virtually a stipu- lation for immunity against the consequences of the telegraph company's negligence, and therefore invalid. The court, however, says, "The fundamental truth of the plaintiff's 1 Ellis V. The American Telegraph Co., 13 Allen, 226, Am. Elec. Cases, p. 9. 2 Western Union Telegraph Co. v. Carew, 15 Mich. 525. 2 Passmore v. Western Union Telegraph Co., 78 Pa. St. 238. LIABILITY FOIl NEGLIGENCE BY SPECIAL AGREEMENT. 4G1 contention is therefore undeniable, but, like most truths, is limited by other and collateral principles. A railway, tele- graph, or other company, charged with a duty which con- cerns the public interest, cannot screen themselves from liability for negligence, but they may prescribe rules calcu- lated to insure safety and diminish the loss in the event of accident, and declare that if these are not observed, the injured party shall be considered as in default and precluded by the doctrine of contributory negligence. The rule must, however, be such as that reason which is said to be the life of the law, can a])prove, or at the least, such as it need not condemn. By no device can a body corporate avoid liability for fraud, for wilful injury, or for the gross negligence, which, if it does not intend to occasion injury, is reckless of consequences, and transcends the bounds of right with full knowledge that mischief may ensue. Nor, as I am inclined to think, will any stipulation against liability be valid which has the pecuniary interest of the corporation as its sole object, and takes a safeguard from the public without giving anything in return. But a rule which in marking out a path plain and easily accessible as that in which the company guarantees that every one shall be secure, declares that if any man prefers to walk outside of it, they will accompany him, will do their best to secure and protect him, but will not be insurers, will not consent to be responsible for accidents arising from fortuitous and unexpected causes, or even from a want of care and watchfulness on the part of their agents, may be a reasonable rule, and as such upheld by the courts." The court upheld the usual stipulations exempting the company from negligence, as being such a reasonable rule. § 525. Delay in Transmission or Delivery not covered by Exemption. — Even in States where the courts sustain the clause exempting the telegraph company from liability for damages caused bv neirliflfence in the transmission of a 462 THE LAW OP ELECTRICITY. message unless it is repeated, on the ground that it is a reasonable regulation in the conduct of the business, or a reasonable term in the contract with the sender of the mes- sage, for the reasons above given, ^ they have limited their support by saying that the exemption will not apply to delay of the company in the transmission or negligence in the delivery of the message, as, for instance, if the message, after receipt at the office of destination, is not delivered at all or is delivered to the wrong person, or the transmission or delivery is delayed an unreasonable time, for the courts say that the exempting clause, as printed on the blanks of the company, could not, from the nature of things, be intended to apply to negligence in the delivery of the mes- sage after its arrival at the office of destination, since repeti- tion could not affect such delivery at all, nor give notice to the sender of anything more than that the message was cor- rectly received at the office of destination.^ But it has been held that mere delay in transmission is covered by the exemption clause.^ § 526. Sending Message to Wrong Destination. — There is a difference of opinion as to whether the clause exempting the telegraph company from negligence in the transmission and delivery of a message unless it is repeated, will protect the company in cases where the message never reaches the office of destination because it is sent to the wrong office through the negligence of the telegraph operator. The 1 Supra, §§ 518-524. 2 Western Union Telegraph Co. v. Fenton, 52 Ind. 1 ; Western Union Telegraph Co. v. Burrow, 30 S. W. Rep. 378; Thompson v. Western Union Telegraph Co., 106 N. C. 549; s. c. 107 N. C. 449; Western Union Tele- graph Co. V. Graham, 1 Col. 230; Garrett v. Western Union Telegraph Co., 83 Iowa, 257; Gulf, Colorado & Santa F6 Ey. Co. v. Wilson, 69 Tex. 739; Western Union Telegraph Co. v. Lowrey, 32 Neb. 732; Western Union Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460 ; Fleischner v. Pacific Postal Telegraph Cable Co., 55 Fed. Rep. 738; True v. Inter- national Telegraph Co., 60 Me. 9, 18. 8 Birkett v. Western Union Telegraph Co., 61 N. W. Rep. 645. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 4G3 better opinion seems to be that since the failure of the mes- sao-e to arrive at the ofilcc of destination would be shown by a failure of the operator at that office to repeat it back if the sender had paid for this repetition, the clause may reason- ably be considered to have been intended by the parties to apply to this species of negligence, and therefore the clause will protect the company in such cases. ^ In the New York case cited, the telegram was written on a blank form con- taining the usual clause as to exemption of the company from negligence unless the message is repeated. The sender delivered it for transmission at the telegraph office in Olean, New York, addressed to Bradford, Pennsylvania. The direct line to this point not being in working order, the operator sent it to Buffalo, New York, for transmission from that point to its destination, at the same time telling the sender that it was duly sent. The message was never delivered at Bradford, Pennsylvania, and for this negligence the sender of the message brought suit. The court sustained the exemption of the telegraph company from liability in this case, saying that the facts of the case were directly within the provisions of the clause as to repetition of mes- sages contained in the blank form, since if the sender had stipulated for the repetition of the message from its destina- tion, the absence of such repetition would have shown that the messa<2;e had not reached its destination. On the other hand, it has been held in Texas that if the message is sent to a wrong office of destination through the negligence of the operator who receives the message for transmission, and writes upon it the wrong address, the clause exempting tlie company from liability for negligence does not apply to this negligent act, for the reason that repetition would not have availed to rectify this mistake. ^ The reasoning of the courts in this Texas case does not seem conclusive, as it is difficult 1 Kiley v. Western Union Telegraph Co , 109 N. Y. 231. a Western Union Telegraph Co. v. Lyman, 3 Tex. Civ. App. 460. 46-i THE LAW OF ELECTRICITY. to see wh}', if the sender of the message stipulated for its repetition baek from the office of destination, this repetition, if reported to the sender, would not have disclosed the fact that the message had been sent to the wrong place, and therefore why the exemption clause should not be considered as covering this species of negligence. § 527. Total Failure to Transmit. — As the stipulation exempting the company from liability for negligence in the transmission or delivery of the message, unless it is repeated, necessarily applies from its wording to negligence in the transmission or delivery of a message, the courts have held that the wording impliedly excludes from the protection of the clause cases where no attempt has been made by the telegraph company to transmit the message, and therefore the clause in question will not protect the company from this species of negligence, that is, a total failure to transmit the message. ^ § 528. Failure to Transmit on account of State of Line. — Included in the above exception are cases where the telegraph operator receives a message for transmission, but fails to transmit it because the line is not in working order, and does not either notify the sender of the message of this fact or send the message by some competing or other line. In such cases, as has been seen before, ^ it is the duty of the telegraph company receiving the message for transmission when its wires are not in working order, either to make suitable arrangements for transmitting it over other lines, or to notify the sender of its inability to transmit the mes- sage, and if instead of doing this, it absolutely fails to transmit the message, the case comes under the rule laid 1 Sprague v. Western Union Telegraph Co., 6 Daly, 200; 67 N. Y. 590; Birney v. New York & Washington Printing Telegraph Co., 18 Md. 341 ; Western Union Telegraph Co. v. Way, 83 Ala. 542 ; Garrett v. West- ern Union Telegraph Co., 83 Towa, 277; Western Union Telegraph Co. V. Alichelson, 21 S. E. Rep. 169; Fleischner v. Pacific Postal Telegraph Cable Co., 55 Fed. Rep. 738. 2 Supra, § 402. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 4G5 down in the preceding section, and this species of negli- gence is held by the courts not to be included in the exemp- tion of the company from liability in the transmission and delivery of the message.^ § 529. Waiver of Exemption Clause. — The telegrajih oper- ator receiving the message for transmission may waive the stipulation in its telegraph blank exempting it from negli- gence in the transmission or delivery of a message unless it is repeated, and this even though the telegraph blanks pro- vide that no waiver or change of the contract can be made by an operator. Thus, for instance, where a person sent a telegram, and some time after it was sent inquired of the operator whether it would be advisable to have it repeated, and the operator informed him that it had gone through all right, and thereupon the sender did not have it repeated, the court held that the operator had, in fact, by his statements, waived the operation of the rule, and therefore it should be considered as no longer forming a part of the contract of transmission. 2 § 530. American Cases holding Exemption invalid. — In the foregoing sections the cases discussed have been those where the exemption clause in day messages in its usual form has been held valid, even so far as to exempt the company from the consequences of its own negligence. On the other hand, the courts in many States have held that this clause is against public policy, and either wholly void, or void in so far as it attempts to relieve the company from the conse- quences of its negligence or that of its servants, operators, or agents. The ground taken by the courts in these cases is that the great importance to the public of having messages safely transmitted, and the consequent necessity of holding telegraph companies to their strict legal obligation of dili- gence in the matter, is a suffcient foundation for deciding 1 Fleii5chner v. Pacific Postal Telegraph Cable Co., 55 Fed. Rep. 738. 2 "Western Union Telegraph Co. r. Reeves, 27 S. W. Rep. 31S. 30 Ji,QQ THE LAW OF ELECTRICITY. that such stipulations cannot exempt from negligence, and that although in the case of individuals doing business together, such a stipulation in a contract as will exempt the i^artv transacting the business from liability for negligence may be reasonable and valid, yet the telegraph company has such an advantage in dealing with its customers from the fact that it has a practical monopoly of the business of speedy transmission of messages, and that the interests of the customers will not permit them to do without these facilities, that any contract which may be entered into between the parties is subject to the inspection and revision of the court to determine its reasonableness, and that such stipulations as are forced upon the customer by the telegraph company releasing it from its obligation to perform its legal duty, are unreasonable and against public policy. ^ § 531. Opinion to this Effect. — This reasoning was well stated in an early case in Maine.^ In this case the plaintiff, a lumber dealer in Bangor, delivered to the defendant com- pany in Bangor, to be transmitted to his correspondent in Philadelphia, the following message: "Will sell 800 M. laths delivered at your wharf, two ten net cash. July ship- ment. Answer quick." The regular tariff rate was paid for transmission. The message delivered by the defendant 1 Ayer v. Western Union Telegraph Co., 79 ]\Ie. 493; American Union Telegraph Co. v. Daughtery, 89 Ala. 191; Gillis v. Western Union Tele- graph Co., 61 Vt. 461; Western Union Telegraph Co. v. Short, 53 Ark. 439; Brown v. Postal Telegraph Cable Co., Ill N. C. 187; Thompson v. Western Union Telegraph Co , 107 N. C. 449; Western Union Telegraph Co. V. i\Ieredith, 9.5 Ind. 93; Western Union Telegraph Co. v. Blanchard, 68 Ga. 299 ; Western Union Telegraph Co. v. Shotter, 71 Ga. 760; Thomp- son V. Western Union Telegraph Co., 64 Wis. 531 : Telegraph Co. v. Grig- wold, 37 Oh. St. 301 ; Sweatland v. Illinois & Mississippi Telegraph Co., 27 Ta. 432; Manville v. Western Union Telegraph Co., 37 la. 214; Aiken V. Western Union Telegraph Co., 69 Ta. 31; Tyler v. Western Union Tele- graph Co., 60 111. 421; Western Union Telegraph Co. v. Graham, 1 Col. 230; Abraham v. Western Union Telegraph Co., 23 Fed. Rep. 315; Wertz V. AVestern Union Telegraph Co. (Utah), 27 Pac. Rep. 172. 2 Ayer v. Western Union Telegraph Co., 79 Me. 493. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 407 company to the Philadelphia correspondent was as follows: "Will sell 800 M. laths delivered at your wharf, two net cash. July shipment. Answer quick." Thus the word "ten" was left out. The Philadelphia party immediately returned by telegraph the following answer. Accept your telegrai)hic offer on laths. Cannot increase price of spruce. " Letters passed between the parties afterwards, disclosing the error. Plaintiff shipped the laths at the price as received by his correspondent, and sued the telegraph company for the difference. The telegraph company defended on the usual exemption clause. The court, however, overruled this defence, saying, "Telegraph companies are quasi public servants. They receive from the public valuable franchises. They owe the public care and diligence. Their business intimately concerns the public. Many and various interests are practically dependent on it. Nearly all interests may be affected by it. Their negligence in it may often work irreparable mischief to individuals and communities. It is essential to the public good that their duty of using care and diligence be- rigidly enforced. They should no more be allowed to effectually stipulate for exemption from this duty than should a carrier of passengers or any other party engaged in a public business." § 532. Smith V. "Western Union Telegraph Company. — In the recent case of Smith v. Western Union Telegraph Com- pany, ^ the court set forth the reasons for holding such stipulations void at some length, being substantially that telegraph companies are public servants, that as such they must bring to the discharge of their business that degree of care and skill that careful and prudent men exercise in like circumstances, and that any stipulation by which they attempt to relieve themselves of this liability is forbidden by the demands of sound jjublic policy. I 533. Gillis V. "Western Union Telegraph Company. — In a 1 83 Ky. lOi. 4G8 THE LAW OF ELECTRICITY. case in Vermont this subject received a careful considera- tion. ^ The plaintiff in that case telegraphed from Roches- ter, N. H., to Brattleboro, Vt, "Send my bale here." The address Rochester, N. II., was changed in transmit to Rochester, X. Y., and the bale was sent to the latter place. The message was written on one of the ordinary day-message blanks, and was not repeated. The court in its opinion dis- cussed the legal position of telegraph companies, and adverted to the decisions which allow them to exempt themselves from liability for negligence, and then continuing, says, " But however this may be, we are not prepared to follow this line of cases. As this is the first time this question has ever been before this court for decision, we are at liberty to adopt the view we regard as most just and reasonable, and the most consistent with sound public policy; and when we consider the relation of telegraph companies to the public, the character and extent of their business, and the duties and obligations incident thereto, we see no sufficient reason for distinguishing between ordinary and gross negli- gence in this behalf, and think it most just and reasonable, and most consistent with sound public policy, that they be not allowed to stipulate against liability for negligence of ani/ kind, if there be more than one kind. § 534. Same (continued). — " Telegraph companies do not deal with their employers on equal terms. There is a neces- sity for their employment. They are created to promote public convenience, and until the introduction of the tele- phone, they were and practically still are, especially for considerable distances, without competition, save among themselves, in the transmission of intelligence by electric- ity. Their business has increased to vast proportions, and neither the commercial world nor the general public can dispense with their services. It is, therefore, just and reasonable that they should not he allowed to take advantage 1 Gillis V. Western Union Telegraph Co., 61 Vt. 461. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMENT. 409 of their situation and of the necessities of the public, to exact exemption from that measure of (hity that the law- imposes upon them, and that public duty demands." § 535. Night Messages, Exemption not sustained in some States. — Most tclej^raph companies receive messages to be sent during the night for delivery not earlier than the morn- ing of the next ensuing business day at reduced rates. The blanks on which such messages are written generally contain a stipulation worded somewhat as follows: "On condition that the company shall not be liable for errors or delay in the transmission or delivery or for non-d(!livery of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender."^ This clause is clearly an absolute exemption of the company from all possible delinquencies, mistakes, delays, or neglects in transmission and delivery, and gives the sender of the message no opportunity to insure the receipt of the message in its original form by repetition back from the sending office. ^ This form of stipulation in the night message has been construed by the courts in quite a number of cases, and has often been held to be unreasonable and void. 3 The reasons for which such a stipulation is held to be against public policy and void, are well stated in the ^ This clause is now frequently altered by the addition of the repeat- ing clause of the day blank, iu which caSe the reasoning of the following section does not apply. ■^ If a night message has the word " Day " printed across its face, this may mean that the blank is to be considered a day blank, and the stipulations do not apply, but this question is for the jury, on evidence of the intent of the company. Western Union Telegraph Co. v. Piner, 1 Tex. Civ. App. 301. 3 Bartlett v. Western Union Telegraph Co., G2 Me. 209 ; True v. Inter- national Telegraph Co , 60 Me. 9; Smith v. Western Union Telegraph Co., 83 Ky. 101; Western Union Telegraph Co. v. Harris, 19 111. App. 347 ; Western Union Telegraph Co. i\ Fontaine, 58 Ga. 433; Candee v. West- ern Union Telegraph Co., 34 Wise. 471; Hibbard v. Western Union Tele- graph Co., 33 Wise. 55S; Western Union Telegraph Co. v. Shotter, 71 Ga. 760 ; Marr v. Western Union Telegraph Co., S5 Tenn. 538. 470 THE LAW OF ELECTRICITY. case of Bartlett v. "Western Union Telegraph Company : ^ "It is because of its broad provisions covering every case of non- fulfilmcnt of duty under the law that we declare the rule unreasonable. In a case like this where a party has assumed a public or quasi-public employment, one which has become a commercial necessity, and to which business people must necessarily more or less resort, and in which they must trust entirely to servants, in the selection of whom they have no voice whatever, it would seem that there could be hardly a difference of opinion as to the unreasonableness of a rule which opens so wide a door for immunity from negligence if not from fraud. Though it may admit of serious doubt whether public policy would permit persons or companies occupying the relation to the business commmiity which the defendants in this case do, to limit in any degree the liabil- ity imposed upon them by law, in view of the many decisions from courts of the highest respectability allowing it, we do not wish to be understood as denying it, nor, indeed, have we any occasion to do so in this case." "It will be noticed that the rule of these defendants in relation to night mes- sages, that which we are now considering, has no provision for repeating the message, a provision upon which many of the cases rest. " And considering the argument that although the stipulation may be unreasonable, yet it has Ijeen entered into by the parties fairly and intelligently, and should govern their rights and liabilities, the court says, " While we consider that a party may sometimes limit his liability by special con- tract beyond what he can by a rule or regulation, yet it is settled on a foundation too firm to be shaken that even con- tracts in violation of good faith and public policy cannot be sustained. The interests of the public must be protected, even though they clash with those of private individuals." § 536. Exemption maintained in Some States. — There have been, however, decisions to the effect that the stipulation 1 62 Me. 209. LIABILITY FOR NEGLIGENCE BY SPECIAL AGREEMFONT. 471 in question, although it gives the sender no opj)ortuuity to insure the safe transmission of the message, and simjjly exempts the company from all lialjility from whatever cause occurring, is yet reasonable, because of the reduction in price at which the message is received, the courts holding that the telegraph company is not oljligcd to transmit mes- sages at night, and that if it chooses to assume voluntarily this extra work, and to offer these facilities to the public at reduced rates, the sender of the message takes his risk in sending the message at this time, and the stipulation is therefore reasonable. ^ A fuller statement of the reasoning is this: The company, having a system of receiving and repeating message by which it can, as it supposes, insure accuracy, and having a certain fixed rate for ordinary mes- sages, is willing to send messages during the night at half the ordinary rate (of course without repetition) provided that if the message is not received, the only liability of the company shall be to return the money. These terms are perfectly reasonable, for the company may justly suppose that a man having a message to send of pecuniary impor- tance, will take the precaution of having it repeated, and certainly will not send it on a night or half rate blank, and relinquish in express words all claim for damages except the return of his money ; and since many messages are of trivial importance, there is no good reason why a telegraph company might not afford the opportunity of sending such messages during a certain time and at a reduced rate, limit- ing its liability therefor, providing it also affords a reasonable opportunity of sending messages for the non-delivery of which it shall be liable to the amount of the damages sustained. - 1 Aiken v. Western Union Telegraph Co., 5 S. C. 358; Schwartz r. Atlantic & Pacific Telegraph Co., 18 Ilun, 157; Jones v. Western Union Telegraph Co., 18 Fed. Rep. 717 ; Western Union Telegraph Co. r. Neill, 57 Tex. 283. 2 Schwartz i-. Atlantic & Pacific Telegraph Co., 18 Hun (X. Y.), 157; Western Union Telegraph Co. v. Neill, 57 Tex. 238. 472 THE LAW OF ELECTRICITY. § 537. "Whether applicable to Receiver of Message, — The validity of such exempting clauses as are discussed above is naturally decided by considerations wholly independent of the question whether the matter arises in a suit by the sender or the receiver of the message, but the question whether, if valid, they bind the receiver as well as the sender, is one of some difference of opinion in the courts. This matter is discussed above. ^ 1 Supra, §§ 499-507. Compare also, post, § 555 et seq. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 473 CUAPTER XXVII. LIMITATION OF TIME FOR THE PRESENTATION OF CLAIMS AGAINST TELEGRAPH COMPANY. § 538. Limitation of Timo fur the Pre- § 551. Cases ou Non-Transmission not seutation of Claims. Included. 53'J. Form of Limitation. 552. Beginning of Time Limit. 540. Generally helil Keasonal)le. 553. Ignorance of Sender no E.xcuse. 541. Wolf V. Western Union Tele- 554. Concealment of Accrual of Right graph Comjjany. by Cijmpany. 542. Reasonahleuess of Time is for 555. Operation of Stipulation on Ad- the Court. dresses. 543. Stij)ulatiou Unreasonable, when. 556. If Message is never delivered. 544. Reasonableness for the Jury, 557. Time Limit as affecting Action when. of Tort by Addressee. 545. Assent to the Stipulation. 558. Wliat Statement is Necessary. 546. Illinois Rule. 559. To whom Presentation made. 547. Can Sender object to the Stipu- 560. Is Bringing Suit Enough. lation. 561. Waiver. 548. Stipulation not Repugnant to 5G2. Same Subject {continued). Statutory Duty. 563. Statutory Regulation as to Notice 549. As to Statutory Penalties. of Claim. 550. Same Subject "(connnuerf). 564. Suit barred by Informer's Stat- ute. § 538. Limitation of Time for the Presentation of Claims, — Another special stipulation or regulation which telegraph companies commonly insert in their blanks is one which is intended to insure the presentation of all claims for damages arising out of negligence in the transmission or delivery of messages within a short time after the cause of action accrues, so that the company may collect the necessary evi- dence of the facts in the case, and may not be called upon, long after the occurrence, to answer charges which it has not preserved evidence to rebut. § 539. Form of Limitation. — The stipulation is not always in the same language, but an ordinary form is as follows: "The company will not be liable for damages in any case where the claim is not presented in writing within sixty 474 THE LAW OF ELECTRICITY. days after sending the message." Another is as follows: "The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission." § 540. Generally held Reasonable. — The COUrts have, with almost absolute uniformity, held that such a stipulation is prima facie a reasonable one for the telegraph company to make, at least so far as the sender of the message is con- cerned, its intention being to protect the company as above stated, and whether it be considered a term in the contract between the sender of the message and the telegraph com- pany, or whether it be considered a regulation of the busi- ness brought to the notice of the sender and assented to by him,i it is held ordinarily to bind the sender who writes and sia-ns a messasje on a blank form containing this stipula- tion.2 111 two States, however, the sixty day limit for making claims against a telegraph company has been held 1 Compare ante, §§ 493-495. 2 Wolf V. Western UnionTelegi-aph Co., 62 Pa. St. 83 ; Western Union Telegraph Co. v. Henderson, 89 Ala. 51G; Western Union Telegraph Co. V. Dougherty, 54 Ark. 221 ; Hill v. Western Union Telegraph Co., 85 Ga. 425; Western Union Telegraph Co. v. Fairbanks, 15111. App. 600 ; West- ern Union Telegraph Co. v. Jones, 95 Ind. 228 ; Western Union Telegraph Co. V. Yopst, lis Ind. 249; Western Union Telegraph Co. v. Wilson, 108 Ind. 308; Western Union Telegraph Co. v. Trurabell, 27 N. E. 313; Cole V. Western Union Telegraph Co., 33 Minn. 227; 30 days: Smith-Frazier Boot & Shoe Co. v. Western Union Telegraph Co., 49 Mo. App. 99 ; Mont- gomery V. Western Union Telegraph Co., 50 Mo. App. 591; Massengale i;. Western Union Telegraph Co., 17 Mo. App. 257; Barrett v. Western Union Telegraph Co., 42 Mo. App. 542 ; Young v. Western Union Tele- graph Co., 65 N. Y. 1G3; Sherrill v. Western Union Telegraph Co., 109 N. C. .527; Western Union Telegraph Co., v. Dunfield, 11 Col. 335; West- ern Union Telegraph Co. v. Phillips, 2 Tex. Civ. App. G13 ; Western Union Telegraph Co. v. Culberson, 79 Tex. 66 ; Western Union Telegraph Co. V. Brown, 84 Tex. 55; Lester v. Western Union Telegraph Co., 84 Tex. 314 ; Western Union Telegraph Co. v. Rains, 63 Tex. 27 ; Western Union Telegraph Co. v. Meredith, 95 Ind. 93; Heimann v. Western Union Tele- graph Co., 57 Wise. 562. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 475 to be unreasonable and void, the court in one case saying that if a sixty day limit is valid, a six day limit is also valid, and holding that such a limitation is against public policy as being in the nature of a conditional limitation allowing telegraph companies to escape liability for their own ncglii^ence.^ § 541. "Wolf V. Western Union Telegraph Company. — 111 an early case in Pennsylvania, which was one of the first where this question arose, the facts were that the message was given by the sender to the operator at the office of the com- pany, the fees for transmission were paid, and the despatch was started on its way, but never reached its destination. The sender of the message brought suit for damages result- ing from the failure to transmit the message to the desti- nation. The company defended on the ground that a stipulation in the contract protected the company from claims which were not presented to it in writing within sixtv davs from the sending of the message. The court sustained the defence saying, "This is an agreement of the plaintiffs, and is binding on them unless contrary to law, or unless it is unreasonable or inconsistent with public policy. There is no statute infringed by it. It falls within none of the provisions of the acts of March, 1849, and April, 1851. It seems to be prohibited by no principle in law. . . . Not being contrary to law, the contract contained in the condition falls within the legal maxim '' conventio vincit legem," unless it be so unreasonable as to render it contrary to ]iuljlic policy and therefore void. Though not wholly alike, telegraph companies and common carriers have some rcscml)lance to each other in the public nature of the duties each performs under the duties imposed upon them by the Acts of 1849 and 1851 under the sanction of penalty. This public character of telegraph companies is admitted in the case of New York 1 Pacific Telegraph Co. v. Underwood, 37 Xeb. 315; Western Union Telegraph Co. v. Longwill, 21 Pac. Rep. 330. 476 THE LAW OP ELECTRICITY. & Washington Printing Telegraph Company v. Dry burg, ^ in relation to the duties which concern the public. The unreasonahleness of the rules adopted by the companies must, therefore, be scanned with an eye to the public policy, but clearly it is not unreasonable for the telegraph company to require notice of claims for its defaults within a reason- able time before being held to answer for the alleged default. From the very nature of the business this may be essential to its protection against unfounded claims. These companies have often to wrestle with the elements them- selves in the storms which prostrate their lines, which pre- vent their working, and are not to be held to a harsher rule than common carriers who are excused by the act of God. "Within sixty days the cause preventing the transmission of a message on a particular day might be easily ascertained and shown, which, after a lapse of several years, could not be discovered or proved. It is urged that the employer might not discover the failure to send his message forward within this time. How far this fact would displace the con- dition it is not now proper to say, but the reason is inappli- cable to this case where, from the nature of the message, its failure to reach its destination must be known, and was known immediately by the employer. Another reason justi- fying the reasonableness of this provision for notice of the claim is found in the multitude of messages transmitted, requiring the speedy knowledge of the claims to enable the company to keep an account of its transactions before, by reason of their great number, they come to be beyond recollection and control. "^ § 542. Reasonableness of Time is for the Court. — Whether the length of time stipulated by the telegraph company within which the presentation of claims must be made is prima facie reasonable, has been held to be a question for 1 35 Pa. St. 298. 2 Wolf V. Western Union Telegraph Co., 62 Pa. St. 83. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 477 the court, as being the construction of a written docmuent. It has been held that thirty days is a prima facie reasonable timc,^ or even twenty,^ and the usual limit of sixty days has been upheld in every instance. ^ The point which the courts consider in deciding as to the reasonableness of the time is, whether it gives the party interested in the transmission of the message sufficient time, with reasonable diligence, to ascertain whether or not the message has been properly transmitted and delivered, and if not, what damages result therefrom.'^ Naturally, the sending of a telegram in most cases would call for some reply or action on the part of the recipient towards the sender, the absence or nature of which would convey to the sender information from which he should naturally infer that the telegram had not been received, or had been changed in transmission, and this within a short time, and under ordinary circumstances sixty days would be sufTicient. § 543. Stipulation Unreasonable, when. — Although the stipulation in question is generally held to be prima facie reasonable, as has been stated al)ove, yet there may be cases in which it would be unreasonable. There was an intima- tion to this effect in Wolf v. Western Union Telegraph Company,^ when the court hinted that if the whole time limited had elapsed before the party injured by the negli- gence of the company was aware of the accrual of his cause of action, the stipulation would be held to be unreasonable. * Cole r. Western Union Telegraph Co., 33 ^linn. 227 ; Massengale v. Western Union Telegraph Co., 17 Mo. App. 257; Western Union Tele- graph Co. r. Dougherty, 54 Ark. 223. 2 Heimann v. Western Union Telegraph Co., 57 Wise. 562. 8 See cases supra. § 540. * Johnston ?'. Western Union Telegraph Co., 33 Fed. Rep. 362; Massen- gale V. Western Union Telegraph Co., 17 Mo. App. 2-57; Montgomery v. Western Union Telegraph Co., 50 AIo. App. 591 ; Heimann v. Western Union Telegraph Co., 57 Wise. 562. * Supra, § 541. 478 THE LAW OP ELECTRICITY, This point was discussed in a case in Missouri,^ a case in which the whole time limited had elapsed before the plaintiff became aware of his right of action, but although the court admitted that in some cases this might render the stipulation unreasonable, yet in the case at bar it was apparent that the failure to learn of the cause of action arose from the plaintiff's own negligence. It ma}', however, be considered settled by the cases, that if the plaintiff shows that without his default, he did not become aware of his cause of action until either the whole of the time limited for presenting his claim to the telegraph company had elapsed, or so great a por- tion of it that the remainder was not reasonably sufficient for the purpose, the stipulation will be held to be unreasonable under such circumstances. ^ But if, however, although a great portion of the time has elapsed, sufficient remains for the plaintiff reasonably to ascertain and present his claim, the fact of the lapse of the greater portion will not excuse failure to present the claim within the remaining period.^ § 544. Reasonableness for the Jury, when. — As in other cases in which the question of the reasonableness of any rule of conduct is involved, although, as was said above,* the court is to judge of the reasonableness where the construc- tion of the written stipulation only is involved, or when the facts are undisputed and not of doubtful significance, yet if the question arises on disputed facts or upon undisputed facts, which, however, are capable of varied construction, 1 Smith-Frazier Boot & Shoe Co. v. Western Union Telegraph Co., 49 Mo. App. 99. 2 Ibid.; Western Union Telegraph Co. r. Jones, 95 Ind. 228,233; Herron v. Western Union Telegraph Co., 57 N. W. Rep. 696; Western Union Telegraph Co. v. Phillips, 2 Tex. Civ. App. 613, and see post, §§ 553, 555-557. 8 Heiniann v. Western Union Telegraph Co., 57 Wise. 562, and see cases supra, § 510, and infra, §§ 555-557. * Supra, § 542. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 479 the jury is the proper tribunal to pass upon the question of the reasonaljleness of the stipulation as applied to the cir- cumstances in the case before the court. ^ § 545. Assent to the Stipulation. — When the blank form on which the sender of a telegram writes, and which he signs, has printed upon it the words "the company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message," or a similar phrase, it is generally held that, by signing, he becomes chargeable with knowledge of, and assents to the terms and conditions thus imposed, and they become part of the contract between him and the telegraph company.- It has, however, been held that the mere fact of the stipulation being printed on the blank signed by the sender is not conclusive on the question of plaintiff's knowledge uf and assent to the stipulation ; that, even then, the jury may find from the facts that he did not assent to the clause.^ § 546, Illinois Rule. — Thus in Illinois a peculiar rule is adopted in regard to this stipulation, as well as to stipula- tions of all kinds in telegraph blanks. The court in that State holds that a limit of sixty days within which claims for damages must be presented to the telegraph company in writing, is a reasonable stipulation or regulation of its busi- ness, but that it must be shown that the plaintiff saw it on the printed blank, or knew of it, and assented to it in order to bind him, either as a term in his contract or as a resnila- tion of the company's business brought to his notice, and the ^ Western Union Telegraph Co. v. Phillips, 2 Tex. Civ. App. 613. Compare section on reasonable time, supra, § 409, and on reasonable care, post, §§ 738, 7(34. 2 Hill t;. Western Union Telegraph Co.. 85 Ga. 425; Cole v. Western Union Telegraph Co., 33 Minn. 227; Heiraann i". Western Union Tele- graph Co., 57 Wise. 562, and see cases supra, § 540, and analogous cases referring to the exemption from negligence, supra, §§ 494-497. * Western Union Telegraph Co. i-. Fairbanks, 15 111. App. 600. 480 THE LAW OF ELECTRICITY. question whether or not the plaintiff saw or knew of the stipulations on the blank printed form, and so made them a part of his contract, or assented to them as regulations, is a question of fact for the jury upon all the circumstances of the case,i and that mere signing of the blank itself is not con- clusive, and, in fact, is not direct evidence of the plaintiffs having seen or known of the stipulation in question at the time of signing the blank. In one case in that State the only evidence as to the assent of the plaintiff to the stipula- tion as to the limit of time was the fact that his agent had signed the printed blank when sending the message, and the agent himself testified that he did not see or know of the stipulation at the time of signing the blank, and the court on appeal held that this was sufficient evidence for the jury to find that the plaintiff never saw or knew of the stipulation in question, and was not bound by it.^ On this blank there was printed in large type the assent of the sender to the form of contract, but the court held that there must be evi- dence that he or his agent when signing the blank saw or knew of this phrase as well as the stipulation in question, and that this was true whether the stipulation in question was considered as part of a contract between the sender of the message and the telegraph company, or whether it was considered as a regulation of the telegraph business; that in either case there must be evidence that the person sending the message saw or knew of it before he will be bound by it. 3 § 547. Can Sender object to the Stipulation. — In most cases the stipulation under consideration, whether con- sidered as a term in the contract between the sender of the message and the telegraph company, or as a regulation of 1 Western Union Telegraph Co. v. Fairbanks, 15 111. App. 600. 2 Ibid. 8 Western Union Telegraph Co. r. Fairbanks, supra; Cf. Tyler v. Western Union Telegraph Co., 60 111. 421. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 481 the business, and whether assented to or not l)y the sender, is at least not actively objected to by hini.^ In one case, however, the question has been brought up whether, if the person desiring to send the message refuses to agree to this stipulation and the company thereupon refuses to acce])t the message for transmission, the company is liable under a statute prescribing a penalty for refusing messages offered for transmission. The court, under the peculiar statutes of the State in question, holding a telegraph company to be a common carrier, and that it must receive messages as such under its full common-law liability, if the sender refuses to accept a limitation, held that the telegraph company could not compel the sender to assent to the regulation, nor could it refuse to accept the message w^ithout such limitation of its liability. 2 This decision would probably not be followed except in States having similar statutory provisions as to telegraph companies. § 548. stipulation not Repugnant to Statutory Duty. — In most States it is held that there is nothing in the stipulation under consideration which is opposed to either the spirit or the letter of the statutes which require telegraph companies to serve the public with despatch and care, for the stipula- tion is not a protection against any negligence of the com- pany, but merely one giving it opportunity to discover the cause of the error complained of, and to preserve evidence of it, and protecting the company from negligence of the plaintiff in delaying unnecessarily his suit. It is therefore generally held that this clause is valid, even in States which have statutes enjoining such duties on the companies. ^ Nor 1 See cases supra, § 540. 2 Kirby v. Western Union Telegraph Co., 55 X. W. Rep. (So. Dak.) 759. 8 Western Union Telegraph Co. v. Jones, 9o Ind. 228; Sherrill r. Western Union Telegraph Co., 109 N. C. 527; Breese v. Western Union Telegraph Co., 48 X. Y. 132; Heimann v. Western Union Telegraph Co., 57 Wis. 562 ; contra, Western Union Telegraph Co. v. Kemp, 62 X. W. Kep. 541; see post, § 563. 01 482 THE LAW OF ELECTRICITY. is it opposed to statutes which inflict penalties on the tele- graph companies for non-performance of the duties imposed upon them. ^ § 549. As to statutory Penalties. — The courts are not uni- form on the question whether the wording of this stipulation is broad enough to protect the telegraph company when an action is brought for recovery of a statutory penalty, and not for damages in tort or on the contract. In one set of decisions it is held that the phrase "claim for dam- ages," as used in the stipulation in question, is not suffi- ciently broad to cover a claim for a statutory penalty, for "damages" is an indemnity or compensation in money paid to the person who has suffered injury, and is pro- portional to the amount of the injury received, while a penalty is an arbitrary punishment inflicted by law, in the nature of a fine, and has no reference to the actual damages sustained by the person suing for it, and therefore, if the telegraph company stipulates only for protection against "claims for damages," it will not be protected against actions for a statutory penalty, even though no notice of the intention to prosecute the suit has been given to the telegraph company within the time limited by the company. ^ § 550. Same Subject (continued). — In other cases, how- ever, it is held that the phrase in question is broad enough -to cover a claim for a statutory penalty, for the word "claim " covers every species of legal demand which may be made against the company, and the word "damages," in a broad and general signification means any sum which may be recovered by the plaintiff in a suit at law against the 1 Montgomery v. Western Union Telegraph Co., 50 Mo. App. 591; Breese v. Western Union Telegraph Co., 48 N. Y. 132; Western Union Telegraph Co. v. Jones, 95 lad. 228; compare ante, §§ 482, 514. 2 Western Union Telegraph Co. v. Cobbs, 47 Ark. 344; Western Union Telegraph Co. v. Cooledge, 86 Ga. 104; Western Union Telegraph Co. V. James, 90 Ga. 254. LIMITATION OP TIME FOR PRESENTATION OF CLAIMS. 483 company.^ The telegraph companies now generally insert the words "or statutory penalties " after the words "claims for damages," thus preventing any loophole of escape. § 551. Cases of Non-Transmission not Included. — This stipulation being in the nature of a forfeiture by the plaintiff of a right of action which would otherwise vest in him, has been held to be strictly construed, and will not be enlarged by construction so as to include cases which do not fall within its wording. Therefore when the stipulation pro- vides that "no claim for damages shall be valid unless presented in writing within thirty days after sending the message," and the message in fact was never sent at all, that is, was never placed on the wires by the telegraph company, the stipulation does not apply, and the plaintiff will not be estopped from suing, even though he may never have made any formal cla^im upon the company, or has not made it within the time limited by the stipulation.^ And it is held that proof that the message was never delivered is prima facie proof that it was never started on its way over the wires. 3 Although the courts say that in this case proof of non-delivery is priina facie proof of non-sending, yet it may be doubted whether anything more is meant than that the telegraph company which intends to rely upon the defence that no claim was made vrithin the time limited by the stipulation must, as an clement in that defence showing the beginning of the lapse of time, prove when the message was sent. It is noticeable that in the latest blanks the tele- 1 Western Union Telegraph Co. v. Jones, 95 Iiid. 228 (" any claim " was the phrase here, not limited to claims for damages) ; Montgomery v. Western Union Telegraph Co., 50 Mo. App. 591. - Barrett v. Western Union Tel(\icraph Co., 42 Mo. App. 542; Western Union Telegraph Co. v. Yopst, 118 lud. 249; Western Union Telegraph Co. V. Way, 83 Ala. 542, 556. 8 Barrett v. Western Union Telegraph Co., 42 Mo App. 542; Western Union Telegraph Co. v. Way, S3 Ala. 542, 556 ; Western Union Telegraph Co. 1-. Yopsl;, 118 Ind. 249. 484 THE LAW OF ELECTRICITY. graph company has changed the wording of the phrase so as to read "sixty days after the message is filed with the company for transmission," thus covering this point. § 552. Beginning of Time Limit. — In accordance with the wording of this stipulation (except in the modern form given in the preceding section), the time begins to run from the actual transmission of the message on the wires, and not from its receipt by the company, and therefore if the sending over the wires is delayed and the claim is presented in writing, or otherwise sufficiently presented, within the sixty days from the time of actual transmission of the message over the wires, although not within sixty days from the time of delivering it to the telegraph operator, the suit will be sustained. ^ § 553. Ignorance of Sender no Excuse. — The fact that the sender of the message does not know when the message is sent, or when the time begins to run against him, has no effect upon the lapse of time, provided there is still a reason- able time left for making his claim after he learns of his cause of action, e. g., the fact that the sender of the message did not know of a delay in its transmission until some time after it occurred, does not delay the beginning of the lapse of time, provided sufficient time for presenting the claim still remains after he learned of the delay. ^ § 554. Concealment of Accrual of Claim by Company. — If the fact of the accrual of the cause of action is fraudulently concealed from the plaintiff by the telegraph company so that he does not, in fact, learn of his rights until after the time limit has expired, this fraudulent concealment on the part of the telegraph company operates to estop the company to set up this stipulation. Thus where the contents of a 1 Western Union Telegraph Co. v. Trumbell, 27 IST. E. Rep. 313 ; Western Union Telegraph Co. v. Yopst, 118 Ind. 249. 2 Massengale v. Western Union Telegraph Co., 17 Mo. App. 257; Heimann v. Western Union Telegraph Co., 57 Wise. 5G2 ; as to addressee, see ante, § 543 ; post^ § 555-557. LIMITATION OP TIME FOR PRESENTATION OF CLAIMS. 485 telegram were disclosed by the agent who received it, but this disclosure was fraudulently concealed by the agent until after the expiration of the time limited for presenting claims, and was then discovered by accident, it was held that the sender was entitled to recover damages therefor, notwithstanding his failure to comply with the stipulation requiring him to present any claim for damages against the telegraph company within sixty days from the sending of the message.^ It may be questioned whether this decision should not rather be supported on the ground that the stipu- lation in question was not intended by the parties to apply to any such claim as damages for the disclosure of the con- tents of a telegram. It cannot, of course, be contended that the stipulation in question, notwithstanding its general phraseology, is intended to apply to every claim for damages against the telegraph company. Fur instance, the clause unquestionably would not apply to a claim for damages to the person caused by the falling of a telegrai^h pole or other similar claim,^ and it may be doubted whether, when fairly construed, it is intended to apply to anything except claims for damages arising from negligence of the telegraph com- pany in the transmission and delivery of the message, and not to any criminal or fraudulent act of the telegraph agents, whereby damage is incurred by the party sending the message. ^ § 555. Operation of Stipulation on Addressee. — The 0})Cra- tion of this stipulation upon the person to whom the message is addressed is a matter of some difilcultv on the decisions. The most satisfactory rule seems to be as follows. If the sender can be considered as the agent of the addressee for sending the message, as has been seen previously to be the case in many instances, ^ when the message concerns the business of the latter, then the addressee is bound by » Gulf. Colorado & Santa Fe \\. R. Co. v. Todd, 4 Tex. App. 555. ^ A\'estern Union Telegraph Co. v. Culberson, 70 Tex. 65. ' Supra, §§455-457. 486 THE LAW OF ELECTRICITY. the contract just as the sender would be, and if he learns of his damage while a sufficient portion of the limited time re- mains unelapsed, he is bound to present his claim within that time or forfeit his right. ^ If the message is delivered to the addressee on a printed form containing such a stipulation, but there was no such stipulation on the message as originally given to the company for transmission, the receiver is not bound in contract by this stipulation, because it formed no part of the original contract. 2 Such a stipulation in the blank on which the message is delivered may bind the receiver as notice to him of the rule.^ § 556. U Message is never deUvered. — But the foregoing rule is true only if the message is delivered, for if it never is delivered, the courts hold that the stipulation is un- reasonable and void, as to the addressee, because even if he has a contract relation with the telegraph company, the addressee may not and presumably does not, in fact, know of the sending of the message at all, and it would be unreasonable to hold him bound to present within a limited time a claim which he is quite likely never to hear of.^ In one case it was said that the claim must be presented within the same period of time after the addressee learns of the cause of action which has accrued to him, but it may be doubted whether this dictum would be followed.^ 1 Western Union Telegraph Co. v. James, 90 Ga. 254 ; Massengale v. Western Union Telegraph Co., 17 Mo. App. 257 ; Herron v. Western Union Telegraph Co., 57 N. W. Rep. Iowa, 691; Western Union Tele- graph Co. V. Phillips, 2 Tex. Civ. App. 613 ; Western Union Telegraph Co. V. Culberson, 79 Tex. 66; Manier v. Western Union Telegraph Co., 94 Tenn. 442; Findlay v. Western Union Telegraph Co., 64 Fed. Rep. 459. Compare ante, § 499 et seq. 2 Western Union Telegraph Co. v. Hinkle, 3 Tex. Civ. App. 518. 8 Post, § 557; Manier v. Western Union Telegraph Co., 94 Tenn. 442. Compare ante, §§ 504-507. 4 Johnston v. Western Union Telegraph Co., 33 Fed. Rep. 365; Sherrill V. Western Union Telegraph Co., 109 N. C. 532. 6 Sherrill v. Western Union Telegraph Co., supra. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 487 § 557. Time Limit aa affecting Action of Tort by Addressee. — In actions of tort by the addressee of the message, it is difficult to sec how this .limit of time in which claims must be made against the telegraph company for damages occa- sioned by error or negligence in sending the message can affect the plaintiff. In such cases the plaintiff has no jirivity with the sender of the message, but sues solely for the breach of duty by the telegraph company, i. e., the failure of the telegraph company to perform its public duty of trans- mitting despatches promptly and with due care, and has nothing to do with the special contract between the sender and the telegraph company, and therefore whatever stipula- tions the sender may make with the telegraph company should not bind the addressee, nor does the sendee have such knowledge of the regulations of the company as to the con- duct of its business as to make it contributory negligence on his part not to make the claim within the time limited by the telegraph company,^ unless, possibly, it may be held that when the telegraphic message is delivered to the sendee upon a blank containing the stipulation in question, and he does not bring his suit within the time limited, the stipu- lation becomes binding upon him as being a reasonable regulation by the telegraph company in its dealings with him and brought to his notice. , § 558. What Statement is Necessary. — In Order to Comply with the stipulation in question, it is not necessary for the plaintiff to set forth his claim in detail, but he must give the telegraph company such information in writing as will apprise the company of the nature of the claim. ^ § 559. To whom Presentation made. — It has been held that the telegraph operator at the place where the message was 1 Johnston v. Western Union Telegraph Co., 33 Fed. Rep. 3G5 ; Ilerron r. Western Union Telegraph Co., 57 N. W. Rep. 691 ; Western Union Telegraph Co. v. Longwill, 21 Pac. Rep. 339. Compare ante, §§ 504-507. ^ Western Union Telegraph Co. v. Brown, S-l Tex. 54 j as to oral evidence of the demand, see post, § 562. 488 THE LAW OF ELECTRICITY. started is a proper person to whom to make claim for damages under the clause in question.^ But on the other hand, it was said in a New York case that the operator was not a proper person upon whom to make such a claim. ^ A notice given to a messenger boy of the telegraph company to take to the local operator is not properly given. ^ A notice given by the wife will support an action by the husband for injury to the wife's feelings.* § 560. Is bringing Suit Enough ? — It has been urged upon the courts in several cases, that although a formal statement of the claim in writing has not been presented to the tele- graph company within the time limited by the stipulation in the contract, yet the fact that suit has been actually brought against the company within the time limited is a sufficient compliance with the stipulation to enable the plaintiff to maintain his action. The decisions of the courts upon this point are not unanimous. In Alabama it has been held that this is sufficient compliance. In this case the papers which were served upon the defendant company contained a full statement of the plaintiff's case;^ and to the same effect is a case in Indiana,^ and cases in Texas. '^ In other cases, however,^ it seems to be held that the bringing of suit and service of citation is not a compliance 1 Western Union Telegraph Co. v. May, 27 S. W. Rep. 760; Western Union Telegraph Co. v. Blanchard, 68 Ga. 299 ; Hill v. Western Union Telegraph Co., 8-') Ga. 430. 2 Young V. Western Union Telegraph Co., 65 N. Y. 163, and cf. Massengale v. Western Union Telegraph Co., 17 Mo. App. 257. 8 Western Union Telegraph Co. v. Terrell, 30 S. W. Rep. 70. * Western Union Telegraph Co. v. Kinsley, 28 S. W. Rep. 831. ^ Western Union Telegraph Co. v. Henderson, 89 Ala. 510. « Western Union Telegraph Co. v. Trumbell, 27 N. E. Rep. 313. ' Western Union Telegraph Co. v. Karr, 5 Tex. Civ. App. 61 ; Western Union Telegraph Co. v. Finer, 29 S. W. Rep. 66. 8 Wolf V. Western Union Telegraph Co., 62 Pa. St. 83; Western Union Telegraph Co. v. Ferguson, 27 S. W. Rep. 1048; Telegraph Co. v. McKinney, 2 Will. Ct. App. Cas. § 647. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 489 with this stipulation. In some cases the papers served upon the defendant company do not state the full cause of action of the plaintiff, and therefore do not constitute a statement in writing of the plaintiff's claims. Possibly this distinc- ^ tion might reconcile the difference in the decisions of the various cases, i. e., that where the papers served upon the defendant conijjany contain a sufficient statement of the plain- tiff's case, this constitutes a presentation of the claim in writing sufficient to comply with the stipulations of the contract, but if a citation merely is served, this does not § 561. Waiver. — This stipulation in the contract between the parties may, like any other contract stipulation, be waived by the consent of both parties. This waiver is a question of fact for the jury unless the facts are undisputed, in which case the court will pass upon them and decide whether or not they constitute in law a waiver. In a case in New York where the attorney for the plaintiff made out a partial statement in writing, and presented it to an operator of the defendant company, he took it and handed it back to the attorney, and told him that he had nothing to do with it, and knew nothing about it, and referred the attorney upstairs to the rooms of the executive officers: and the attorney went upstairs and asked for the treasurer, and was told that he was out of town ; and further asked for Mr. Wade, who, on the paper that contained the despatch, was named as president of the defendant company, and was told that he was out of town; and he then left the office, taking with him the written statement, and did not, in fact, deliver it to the company until after the sixty days had elapsed; it was held that he had never presented it to the comi)any within the meaning of the stipulation, and that none of the acts of the agents of the company, as set forth above, constituted a waiver of the contract stipulation.^ 1 Young r. Western Union Telegraph Co., 6.") N. Y. 1G3. Cf. Fiiidlay, V. Western Union Telegraph Co., G4 Fed. Rep. 401. 490 THE LAW OP ELECTRICITY. § 562. Same Subject (continued). — In another case where the action was by the sendee of the message for negligent delivery, it was shown that the message was sent on a blank of the company, which had the usual stipulation as to time limited for the presentation of claims, being in this case thirty days. The plaintiff did not make any claim in writ- ing within that time, but made application to the local office of the company, stating his claim for damages orally imme- diately upon finding out that the message as delivered to him was incorrect. This was twenty-four hours after it was sent. The local officers of the company, to whom he applied, informed him that they would look into the matter, and relying upon this promise, the plaintiff made no presenta- tion in writing of his claim until eight days after the expira- tion of the time limited. The court held that nothing in these facts constituted a waiver of the stipulation on the part of the company, or any estoppel from insisting upon the time limit as a defence.^ And in another case it was said that a mere oral promise to look it up or to look into the matter on the part of the operator is not a waiver of the stipulation. 2 On the other hand, it has been held that if the defendant company is orally notified of the claim, and requests time to investigate it and find where the blame rests, and afterwards reports to the plaintiff that the com- pany was not to blame, without making any objection to the oral presentation of the claim, this constituted a waiver of the contract stipulation so far as to make the oral presentation sufficient.^ § 563. Statutory Regulation as to Notice of Claim. — In Texas a statute has been enacted which declares that all limitations of time within which notice of claims against persons or corporations must be presented to them, which ^ ^Vfassengale v. Western Union Telegraph Co., 17 Mo. App. 257. 2 Western Union Telegraph Co. v. Yopst, 118 Ind. 249. 8 Hill V. Western Union Telegraph Co., 85 Ga. 425. LIMITATION OF TIME FOR PRESENTATION OF CLAIMS. 401 prescribe a less period than ninety days for such presenta- tion arc void. This statute has been examined by the Supreme Court of Texas, and it was held that it was not unconstitutional, and that it was a complete answer to a defence set ui) by a telegraph company that the claim was nut presented in writing to the company within the sixty days' limit prescribed upon the blank printed form on which the message was sent. This decision was inevitable under the statute which declared a limitation of a less period than ninety days to be void, but as no instance is known of similar statutes being adopted in other States, the question is of local interest only.^ In the same State, a statute enacts that all notices are presumed to be given unless denied on oath by the party affected, and this presumption is conclusive, and a pleading denying such notice and not sworn to must be stricken out.^ In Massachusetts, a statute enacts that no action for the recovery of such damages shall be maintained unless a claim therefor is presented in writ- ing to the . telegraph company, or some officer or agent thereof, within sixty days from the time when such right of action accrues.^ § 5G4. Suit barred by Informer's Statute. — In One State it has been held that a suit for a penalty under a telegraph statute is barred by the expiration of the time limited for suits by informers generally, under a statute relating to that class of suits. In this case the telegraph company set up as a defence that the suit was an action brought by an informer, and that the statute of Georgia limited the time for bringing such suits to one year. The court sustained this defence, holding that the action was, in fact, in the nature of a suit by an informer, and as a matter of public i)olicy, even if the plaintiff in such a case was not strictly an informer, yet 1 Western Union Telegraph Co. v. Jobe, 6 Tex. Civ. App. 407. 2 Texas Telegraph & Telephone Co. r. Seiders. 20 S. W. Kep. 258. * Acts 1SS5, ch. 3S0, § 2 ; Compare also ante, § 54S. 492 THE LAW OF ELECTRICITY. it was bettor that the action should be limited to one year from the accruing of the cause of action, than that it should be allowed to run twenty years, which would have been the case if the defence had not been sustained. The court alludes to the difficulty which the telegraph company would encounter at the expiration of so long a time in finding out the real cause of the accident, and collecting evidence for making its defence, and considers this sufficient reason for making the decision above stated. ^ 1 Western Uuiou Telegraph Co. v. Nunnally, 80 Ga. 503. MEASURE OF DAMAGES. 493 CHAPTER XXVIII. MEASURE OF DAMAGES. § 565. General View. 566. Iladloy v. Baxendale. Facts. 567. Hadley v. Baxendale. Opinion of the Court. 568. Two Branches of this Rule. 569. Statements of Rule. 570. Uncertain Damages. 571. Causal Relation hetween Negli- gence and Damages. 572. Lowery v. Western Union Tele- graph Co. Opinion of Court. 573. Division of Discussion. 574. Direct, Natural, and Proximate Damages. 575. Instances of Direct Damages. 576. Same (continued). 577. Same {continued). 578. Indirect or Collateral Damages. 579. Baldwin v. Uniteil States Tele- grapii Company. 580. Collateral Contracts. 581. Landsberger v. Magnetic Tele- graph Company. 582. Certainty of Damages. 583. Illegal Contract. 584. Georgia Case. 585. Same Subject (rotjtinued). 586. Knowledge of Telegraph Com- pany. 587. Information from the Language of the Message. 588. Cipher Messages. 589. English Rule. Sanders v. Stuart. 590. United States Rule. 591. Opinion in Candee v. "Western I'nion Telegraph Company. 592. Western Union Telegraph Co. V. Martin. 593. United States Supreme Court Rule. 594. Substantial Damages in some States. 595. Alabama Cases. 596. Same Subject (conulation is reasonable, since the operator reading a cipher message has not the assistance of the context in ascertaining particular words and that such a stipulation limits the damages for error or delay in transmission to nominal damages, since nothing more than this could reasonably be supposed to either flow naturally from the breach of the contract or to have been contemplated by the parties. § 603. Primrose v. Western Union Telegraph Company. — In this case the action was to recover damages for a negligent mistake of the defendant's agents in transmitting a telegram for the plaintiff at Philadelphia to his agent at Ellis, Kansas. The message was written on a printed blank of the company containing the usual stipulations as to repeti- tion, and the heading called attention of the sender to these stipulations. The message was in cipher as follows: "Despot. Am exceedingly busy. Bay all kinds quo perhaps bracken half of it mince moment promptly of purchase. Frank J. Primrose." The message as delivered was "Destroy am exceeding busy buy all kinds quo perhaps bracken half of it mince moment prom|)tly of purchase." The translation of this message as started was, "Yours of the 15th received. Am exceedingly busy. I have bought all kinds, five hundred thousand pounds. Perhaps we have sold half of it. Wire when you do anything. Send samples 1 rrimrose v. Western Union Telegraph Co., 151 U. S. 1. 522 THE LAW OF ELECTRICITY. immediately promptly of purchase." By the change in the message as delivered from "bay," which meant "I have bought," to "buy," which meant "buy," the agent was mis- led into buying large quantities of wool. The other errors were immaterial. The plaintiff suffered a loss of $20,000 in settling for these purchases with the seller. The plaintiff gave evidence at the trial that he wrote the message in his own office on one of a bunch of the defendant's blanks which he kept on hand ; that he did not then read or remember ever having read the printed matter on the back; that he paid the usual rate for an unrepeated message. He also introduced evidence showing that the message was trans- mitted correctly as far as a repeating station in Kansas, and the error occurred there or at a later point. There was evi- dence as to the resemblance of the telegraphic symbols for "bay " and "buy," showing that they were very closely alike. § 604. Opinion in Primrose v. Western Union Telegraph Company. — Mr. Justice Gray, delivering the opinion of the court, held that the stipulation as to repetition did not wholly exempt the telegraph company from liability for negligence, but only required the sender to have it repeated, and to pay half as much again as the price, in order to hold the company liable for mistakes or delays in transmitting or delivering, or for not delivering a message, whether happen- ing by the negligence of its servants or otherwise. He then says that the reasonableness and validity of such regulations have been upheld by the great preponderance of authority in this country, and discusses the leading cases holding that such stipulations are reasonable. ^ He then disposes of the 1 Citing Mac Andrew v. Electric Telegraph Co., 17 C. B. 3; Baxter r. Dominion Telegraph Co., 37 Up. Can. Q. B. 470; Camp v. Western Union Telegraph Co., 1 Mete. 164, 168; Birney v. New York & Washington Telegraph Co., 18 Md. 341; U. S. Telegraph Co. v. Gildersleve, 29 Md. 232, 246; Tassmore v. Western Union Telegraph Co., 78 Pa. St. 238; Western Union Telegraph Co. v. Stevenson, 128 Pa. St. 442 ; Breese ». Western Union Telegraph Co., 48 N. Y. 132; Kiley f. Western Union MEASURE OF DAMAGES. 523 cases which hold the regulation to he void, saying that many were actions by addressees who had no notice of the regula- tions till after the receii)t of the message, and could not therefore have agreed to them in advance, ^ and that others were night messages, in which the whole provision about ^ repeating was omitted, and a sweeping and comprehensive provision substituted by the effect of which all liability beyond the price paid was avoided,^ and says the only cases cited by the plaintiff where the stipulation is against public policy and void, independently of statute, are Tyler v. Western Union Telegraph Company,^ Ayer v. Western Union Telegraph Company,^ Telegraph Company v. Gris- wold,5 Western Union Telegraph Company v. Crall,*^ Western Union Telegraph Company v. Howell,' and Dorgan v. Tele- graph Company. 8 He examines the reasoning in Tyler v. Western Union Telegraph Company, and concludes that on principle and authority the stipulation binds the sender and becomes a part of the contract between him and the com- pany. This must be considered as an authoritative decision in the court of last resort in the United States. § 605. Limited Information. — It is evident that a tele- graphic message, while not strictly a cipher message, may give very limited information as to the nature of the trans- action contemplated by the parties, as, for instance, a Telegraph Co., 109 N. Y. 231: Ellis' v. American Telegraph Co., 13 Allen, 2-2Q; Kedpath v. Western Union Telegraph Co., 112 Mass. 71; Grinnell v. Western Union Telegraph Co., 113 Mass. 299; Clement i'. Western Union Telegraph Co., 137 :\lass. 463. 1 Such as Xew York & Washington Print. Tel. Co. v. Dryburg, 35 Pa. St. 29S; Harris r. Western Union Telegraph Co., 9 Phila. 88; De la Grange v. Southwestern Telegraph Co., 2.3 La. An. 383. 2 True V. International Telegraph Co., GO Me. 9, 18; Bartlett v. Western Union Telegraph Co., 62 :Me. 209; Candee v. Western Union Telegraph Co., 31 Wis. 471; Ilibbard v. Western Union Telegraph Co., 33 Wis. 558. 8 60 111. 421. * 79 Me. 493. 6 37 Oh. St. 301. " 38 Kan. 679. ' 38 Kan. 685. « i Am. L. T. X. S. 406. 524 THE LAW OF ELECTRICITY. message, without being strictly in cipher, may contain so many technical phrases and abbreviations as to be practi- cally unintelligible to a person not schooled in the business to which it relates. The question then arises how far the telegraph company shall be considered as having information which will render it liable for damages resulting from its negligence. There may be various degrees of information thus given. For instance, a telegram may be so concise as to contain simply an order to buy or sell goods, not giving any price or terms upon which the purchase or sale is to be made, or it may go fully into the details of the purchase. The degree of information, however, does not seem to be material in holding the telegraph company liable for direct damages, providing the court can say from the message that the telegraph company knew that a commercial transaction was intended. 1 If, however, the plaintiff intends to claim special damages, he mast show that the company, either from the language of the message or from other sources, had sufficient information to reasonably contemplate the special damages claimed. § 606. Instances of Limited Information. — Thus in a case in Pennsylvania where direct damages were claimed, and the telegram was " Buy 50 Northwestern, 50 Prairie Du- Chien, limit 45," it was held that this message disclosed the commercial nature of the business to which it related, and that a loss would occur if it was delayed. In this case the damages claimed were held to be the direct, proximate, and natural results of the negligence of the defendant. It is evident that in this case the message itself conveyed to the telegraph company information that the transaction involved was a purchase of some kind of commodity, and that a change in the value of the goods, whereby the plaintiff might be obliged to pay more for them than he would have 1 Western Union Telegraph Co. v. Williford, 2 Tex. Civ. App. 574; Western Union Telegraph Co. v. Lowrey, 32 Neb. 732. MEASURE OF DAMAGES. 525 if the telegram had been promptly delivered, might be a natural, direct, and proximate result of delay in transmit- ting the message.^ Similarly in a case in Illinois where the despatches were, "Please buy 1000 August," and "Please buy in addition to 1000 August, 1000 cheapest month," the court held that although the messages gave no information as to the terms of the proposed purchase, yet they did clearly show that a purchase of property was contemplated, and therefore any change in the price occurring during a delay in executing the order caused by negligence of the company in transmitting the message, was the direct, natural, and proximate result of such negligence. ^ § 607. Same Subject {continued). — So in a case in Georgia the message delivered to the company was : — " Waldron & Taixter, New York. " Cover two hundred September, one hundred August. "(Signed) Blaxghard, Williams & Co," The message as delivered by the company to the addressee was : — *' To Waldrox & Taixter, New York. " Cover two hundred September, two hundred August. "Blaxghard, Williams & Co." Waldron & Tainter were commission agents for the plain- tiff, and held a hundred bales of cotton for them for August delivery ; and on account of the change in the above message, they sold two hundred bales August for the plaintiffs, com- pelling them to buy a hundred extra. It was shown in evidence that the error arose from the inattention and negli- gence of the telegraph operator, which he in his evidence called the operation of unconscious mental action. The ^ United States Telegraph Co. v. Wenger, 55 Pa. St. 2G2; see also Telegraph Co. v. Griswold, 37 Oh. St. 301. " Postal Telegraph Cable Co. v. Lathrop, 33 111. App. 400 ; s. c affirmed, 131 111. 575; giving a full discussion of the cases. To the same effect, Western Union Telegraph Co. v. Harris, 19 111. App. 347. 526 THE LAW OF ELECTRICITY. court held that the message was not a cipher message, but an ordinary commercial messar/e, intelligible to those engaged in cotton dealing, and that at least there was enough to show that it was a commercial message of value, and there- fore the company was responsible for the damages naturally resulting therefrom. ^ § 608. Abbreviations. — Similarly the telegram may con- tain abbreviations of such a nature or so numerous as to render the telegram, in fact, unintelligible. In this case it resembles a cipher message except so far as the telegraph company may be presumed to have common knowledge of the meaning of the abbreviations like the public at large. For instance, in a case where the message in answer to an inquiry for market rates was as follows, "Corn cribs six sixty C. A. F. prompt," it was shown that the word "cribs" was a trade term and meant clear ribs, and that "C. A. F." meant "cost and freight," and that this meaning of the words was commonly known in the locality where the mes- sage was sent, and to the telegraph operators. The court held that this message gave sufficient information to the telegraph operator of its commercial importance, and there- fore the company should be held liable for full damages resulting from its negligence in transmission. ^ The test in all these cases where the telegram is not in cipher, on the one hand, but on the other hand is unintelligible, is whether its language conveys information to the effect that it relates to a commercial transaction ; for if it does, the tele- graph company is thus put upon its guard that financial loss is likely to follow from delay or negligence in the trans- mission, and therefore is rendered liable for such damages.^ § 609. Sources of Information. — The Only source of infor- 1 Western Union Telegraph Co. v. Blanchard, GS Ga. 299. 2 Pepper v. Western Union Telegraph Co., 87 Tenn. 554. 3 Postal Telegraph Cable Co. v. Lathrop, 33 111. App. 400; ^Vestern Union Telegraph Co. v. Blanchard, 68 Ga. 299. MEASURE OP DAMAGES. 527 mation which a telegraph company ordinarily has as to the meaning- of a message, and the transactions to which it refers, is the language of the message. "When this is the case it is a question of law for the court, whether the language is sufficient to render the company liable for the damages claimed.^ § 610. Information from Sender of the Message. — Informa- tion given to the telegraph operator Ijy the sender at the time of sending the message renders the telegraph company affected with liability for damages naturally resulting from the facts thus communicated.^ § 611. Information from other Telegrams. — Information may be acquired by the telegraph company from other tele- grams sent or received about the same time, and by the same operator as the telegram in question.'^ Thus it has been held that an instruction that if the agent knew of the importance of the prompt delivery of the message, or could have discovered it from the terms of the telegram or from other telegrams in reference to the same matter, the tele- graph company would be chargeable with knowledge of the fact, was a correct statement of the law.^ In another case a dealer in cattle living in Iowa wired his Chicago corre- spondent, "Send me market Kansas City to-morrow and next day." He had previously sent and received a great many telegrams from that office, and it was held that it was a question for the jury whether the message charged the company with notice that the sender intended to act upon the information obtained from the answer in buying or selling cattle in Kansas City.^ ^ iSw/wa, § 574. « Western Union Telegraph Co. i-. Hamau, 2 Tex. Civ. App. 100; Western Union Telegraph Co. v. Valentine, 18 111. App. 57 ; Mackay v. Western Union Telegraph Co., 16 Nev. 222. 8 Erie Telegraph & Telephone Co. v. Grimes, 82 Tex. 89. * Erie Telegraph & Telephone Co. v. Grimes, 82 Tex. 89. 6 Garrett v. Western Union Telegraph Co., 83 Iowa, 257. 528 THE LAW OP ELECTRICITY. § 612. Interpretation by Usage. — It is also held that the usages of commerce may be employed to interpret the mes- sage when it relates to commercial subjects. ^ Thus where a telegraph message, when read in the light of careful usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction as far as is necessary to accom- plish the purpose for wdiich it is sent, the telegraph company is liable for all direct damages from negligent failure to transmit and deliver it, as written, within a reasonable time. 2 § 613. Knowledge of the Operator from General Sources. — Knowledge gained by the telegraph operator from other sources may also affect the company with notice in case the message is negligently transmitted. This may be such knowledge as the operator gains locally from the natural course of things. For instance, where the message related to a threshing-machine, and one of the operators knew that the plaintiff owned the machine, and was operating it, it was held that the telegraph company was liable for loss of a contract in regard to the doing of work by the machine which was lost by delay in the delivery of the message. ^ § 614. Classes of Damages. — The various forms of damages which the plaintiff may claim are obviously innumerable. There are, however, certain kinds which from their frequent occurrence may be classified with more or less definiteness, and this classification may assist in the discussion of the subject. These classes are as follows: First, loss of debt by failure to attach or to take other legal proceedings. Second, incurring travelling expenses. Third, loss of offered employment. Fourth, loss on buying and selling goods. Fifth, loss of profits. Sixth, loss of money trans- 1 Bierhaus v. Western Union Telegraph Co., 8 Tnd. App. 246. 2 Bierhaus v. Western Union Telegraph Co., supra. 3 Western Union Telegi-aph Co. v. Bowen, 84 Tex. 476. MEASURE OP DAMAGES. 629 mitted by telegram. Seventh, meutal sufferings and injury to the feelings. 615. Loss of Debts. — It is generally held that in cases where the message concerns the taking of some action to secure a debt due by a third party, either by attachment or levy of execution, or in other ways, and this purpose is appar- ent on the face of the message, the telegraph company must be held bound to know that if it delays action negligently, or transmits the message incorrectly, the result of so doing may be a loss of the security which is desired for the debt ; and therefore the telegraph company is held bound to make good the loss of the debt if the debtor proves insolvent or absconds, or the debt is otherwise rendered uncollectable.^ But the plaintiff must show clearly that if the telegram had been duly transmitted, the action desired would have been taken, and would have secured the debt.- Thus in a case in the Federal courts, ^ the facts were these: — A telegrai)liic message instructing the levying of an attachment was delayed in transit, and in consequence other creditors obtained priority over the sender's attachment. The debtor's property was not sufficient to pay the amount of the debt of the first attaching creditor, but would have been sufficient to pay the debt due to the sender of the tele- gram if his attachment had obtained priority. The telegraph company was informed by the terms of the message of the danger of loss to the sender, and was expressly requested to 1 Fleischner v. Pacific Postal Telegraph Cable Co., 55 Fed. Rep. 742; Bierhaus v. Western Union Telegraph Co., 8 Ind. App. 246; Parks f. Alta California Telegraph Co., 13 Cal: 423; Bryant v. American Telegraph Co., 1 Daly, N. Y. 575; Western Union Telegraph Co. r. Slieffield, 71 Tex. 570; Martin v. Western Union Telegraph Co., 1 Tex. Civ. App. 143. 2 Cases supra, Ilartstein v. Western Union Telegraph Co., 62 X. W. Rep. 412; Manier v. Western Union Telegraph Co., 94 Tenn. 442. 3 Fleischner v. Pacific Postal Telegraph Cable Co., C. C. 55 Fed. Rep. 738; Pacific Postal Tel. Cable Co. v. Fleischner, 66 Fed. Rep. 899. 34 530 THE LAW OF ELECTRICITY. transmit the message immediately. It was held that in an action against the telegraph company for damages, the measure of damages was the amount of the sender's debt. In another case ^ the message was " Due 1800. Attach if you can find property. Will send note by to-morrow's stage." This message was addressed to the plaintiff's agent, but was unreasonably delayed, whereby the plaintiff lost the debt. The court held that the loss of the debt was the natural and proximate damages resulting from the delay in transmission. So again where the message directed the attaching of a debtor's house and land and by delay this was not done until after the debtor had gone into insolvency and the debt was lost, except a small dividend, the court held that the measure of damages was the amount of debt and interest from the day of delivery less w^hat the plaintiff had received on account of the debt.^ In another case,^ an attorney wired wholesale dealers: "Have you claim against P. L. D. ? Answer how much. " The latter replied, " Yes ; $161.15." This answer was delayed, and in the meantime the debtor converted his property into money and fled to parts unknown. It was held that the telegraph company was liable to the' dealers for failure to deliver the message within a reasonable time, though it was not informed of its importance otherwise than by its language. So in another case,* the plaintiff sued the defendant telegraph company for delay in delivering a message : " M. & Co. hold note of W. Will be attached to-night. Your bank telegraphed M. Bros., Bankers, to make bond," whereby the debt was lost. The court held that the message was sufficient on its face to show that its prompt delivery was necessary to avert loss.^ 1 Parks V. Alta Cal. Telegraph Co., 13 Cal. 422. ^ Bryant v. American Telegraph Co., 1 Daly, N. Y. 575. 8 Bierhaus v. Western Union Telegraph Co., 8 Ind. App. 24G. * Martin v. Western Union Telegraph Co., 1 Tex. Civ. App. 143. «; Cf . Western Union Telegraph Co. v. Sheffield, 71 Tex. 570. MEASURE OF DAMAGES. 531 On the other hand, in another case,^ the facts were that C. left a despatch at defendant's telegrajih office in S., to be forwarded to plaintiff at M. The despatch was: "Strauss gone to Howard. Gave man gold watch by mistake. Left no word with me. Store closed. Answer." Strauss was a clerk, whom plaintiff had left in charge of his jewelry store in his absence, and who during the night or early in the morning before the despatch was sent had rol)bed the store, and absconded with the property ; and the despatch was in relation to the absconding, but defendant's agent had no knowledge thereof. The despatch remained in the telegraph office one hour and a half, and was then forwarded to the M. office, where it remained two hours before it was delivered, or any effort made to deliver it. It was held that plaintiff could not recover more than the cost of the mcssaa-e and incidental expenses. § 61G. Incurring Travelling Expenses. — • When the telegram relates to the travelling of the plaintiff or his agents, the telegraph company is held bound to know that if the tele- gram is not transmitted correctly or promptly, its negligence in this respect may result in the plaintiff's being obliged to incur expenses of travel and board and similar expenses, which he would not otherwise have been obliged to incur, and therefore he may recover his reasonable travelling and living expenses incurred through such negligence of the telegraph company in this respect, and compensation for the time lost. 2 § 617. Instances of recovering Travelling Expenses — Thus in a case in Texas, ^ the facts were that plaintiff delivered a 1 "Western Union Telegraph Co. c. Cornwell, 2 Colo. App. 491. - Western Union Telegraph Co. v. Shumate, 2 Tex. Civ. App. 429 ; Western Union Telegraph Co. v. Short, 53 Ark. 434; Bliss v. Baltimore, etc., Telegraph Co., 30 Mo. App. 103; Sprague v. "Western Union Tele- graph Co., 6 Daly, N. Y. 200. 8 Western Union Telegraph Co. v. Shumate, 2 Tex. Civ. App. 429. 532 THE LAW OF ELECTRICITY. ^ message to defendant telegraph company at G., Texas, addressed to his agent in 0., Cal., as follows: "Close the trade. I will come soon;" and on his arrival at 0., dis- covered that the message had not been delivered, and that the deal had failed, thus requiring him to return to G. It was held that plaintiff's expenses to and from California were proper items of damage against the defendant, but not the losses resulting from the sale of his property at a sacri- fice before starting. In a case in Arkansas,^ the facts were that a message to plaintiff was delivered to defendant tele- graph company reciting that a certain case was set for August 17th. As delivered to plaintiff, the message read August 7th. It was held that defendant was liable for plaintiff's reasonable expenses in going to and from the place of trial, and the value of his time; but that, there being no evidence that the company had notice of special circumstances connected with the sending of the message, it was not liable for loss to the plaintiff resulting from the necessity of shutting down his mill, idleness of his teams, etc., during his absence. § 618. Same Subject {continued). — In a case in Missouri, ^ the plaintiff being in St. Louis, telegraphed to one Fairchild, who was in Chicago, arranging for a conference with him about railroad matters. The telegram was not delivered to Fairchild, who left in the course of a day or two for Boston, The plaintiff, in the meantime, not hearing from him, had started from St. Louis and gone to Chicago. Failing to see Fairchild, he returned to St. Louis and brought suit for his expenses. The negligence of the defendant was admitted, and the only question was one of damages, and it was held that the expenses of the travel were not speculative damages, but actual damages for which the plaintiff could recover. 1 Western Union Telegraph Co. v. Short, 53 Ark. 434. 2 Bliss V. Baltimore & Ohio Telegraph Co., 30 Mo. App. 103. MEASURE OP DAMAGES. 533 So in a case in New York,^ a person having a case coming on in a different city, telegraphed to his attorney to have it postponed, if possible, and to reply. No rejily coming, the plaintiff supposed that postponement was not possible, and went to the city of trial with his attorney. He found when he got there that the case had been postponed. The court held that as this message was never sent, the conditions in the blank as to repeating did not apply. That, not receiv- ing any answer, the plaintiff was justified in supposing that posti)onement was impossible, and he was allowed to recover all the expenses of the journey rendered necessary by the negligence ot the defendant. § 619. Loss of Offered Employment. — When parties have been negotiating for the employment of one by the other, and the offer of the employee to the employer is made by a telegram requiring an answer, and the employer telegraphs back an acceptance of the offer, or vice versa, the terms being definite and fixed, as, for instance, of a salary for a year, and by reason of delay in transmission of this accept- ance the employee loses his employment or accepts other less lucrative employment, he can recover as his damages the difference between the salary which he would have received had the acceptance been duly transmitted by the telegraph company, and what he has been able to earn during the period covered by the contract or up to the date of bringing suit. He cannot, however, lie idle, but must make reason- ably diligent efforts to secure employment during the period covered by the contract. 2 But if the length of employment or other terms are indefinite, the plaintiff cannot recover. ^ If the telegram is simply an inquiry as to whether a person 1 Sprague i'. "Western Union Telegraph Co., 6 Daly, X. Y. 200. 2 Western Union Telegraph Co. v. Valentine, 18 111. App. 57 ; Baldwin V. Western Union Telegraph Co., '21 S. E. Rep. 212. 8 Keuyon v. Western Union Telegraph Co., 100 Cal. 45i; and see supra, § 570. 534 THE LAW OF ELECTRICITY. will accept employment on certain terms, the person to whom it is addressed cannot recover damages for its slow or erroneous transmission, because of the uncertainty as to whether the employment would have been given to him.^ So a telegram merely arranging for a meeting of parties with a view to employment is too indefinite, for no employ- ment might be agreed upon. Thus in a case in Georgia, the action was by an undertaker for loss of a job by negligent delivery of a telegram. ," BuLLARD, Ga., Jan. 8, 1885. "To J. J. Clay, — Meet us at E. T. Depot on this evening's train prepared to arrange for shipment to Indianapolis my mother-in- law's remains. «D. G. Hughs." The court held that there was nothing to show that Clay was damaged, as it only appeared that he had lost a mere opportunity or possibility to make something, and that for this mere possibility he had no right of recovery.^ In a case in Mississippi,^ it was held that the delay of a telegraph company in delivering a telegram to an attorney, requesting him to take the first train for a neighboring town, but which telegram contained nothing to show why he was wanted at that place, or what injuries would result to him from the delay in delivery, would not enable him to recover the attorney's fees which he might have earned had the despatch been seasonably delivered, as such rule of damages would cover all remote and improbable consequences arising from the delay in delivering, instead of the probable consequences only. § 620. Loss on buying and selling Goods. — In arriving at a rule for the measure of damages in cases where the plaintiff alleges a loss in buying and selling goods, by reason of the 1 Walser r. Western Union Telegi-apb Co., 114 N. C. 440. 2 Clay V. AVestern Union Telegraph Co., 81 Ga. 285. 8 Western Union Telegraph Co. v. Clifton, 68 Miss. 307. MEASURE OF DAMAGES. 535 negligence of the telegraph company, the main question is whether, in fact, any actual damage has been suffered. ; If the plaintiff merely complains of purchases or sales he might have made had the telegram been properly sent, other cir- cumstances may decide his recovery. ^ But if he has actually bought or sold, and in so doing was damaged by the negli- gent act of the telegraph company, he will ordinarily be allowed to recover his damages.^ This general principle will be illustrated by the subjoined cases. § 621. Actual Loss in Purchase or Sale. — When a party has goods for sale, and his agent in a distant place sends him a telegram to ship the goods at once, this being done for the purpose of sale, and the telegram is delayed, and the market for the goods falls between the time when the goods would have reached the market if the telegram had been delivered with promptness, and the time when the goods in fact reached the market and were sold after the actual receipt of the message, the measure of damages is the differ- ence between the market price on these two dates, for this measures the exact injury which the plaintiff has suffered. ^ So where the telegram is an order to buy a quantity of goods, and by mistake it is transmitted as an order to buy a smaller quantity, the measure of damages is the difference in price between the price of the deficiency at the time the telegram was received and the time when the error was discovered.'* § 622. Same Subject (contiiiued). — li a telegram is a mere order to an agent to buy at the market price, and no pur- chase is made because of delay in receiving the telegram, 1 Western Union Telegraph Co. v. Hall, 121 U. S. Ui, 451; Levy v. Western Union Telegraph Co., 3.5 Mo. App. 170. 2 Marr v. Western Union Telegraph Co., 85 Tenn. 529. * Manville v. Western Union Telegraph Co., 37 la. 214. Cf. Thomp.son r. Western Union Telegraph Co., 64 Wise. 531. Cf. Western Union Telegraph Co. v. Robinson, 20 S. W. Rep. 71. * Marr v. Western Union Telegraph Co., 65 Tenn. 529. 536 THE LAW OF ELECTRICITY. there is no damage, for expected profits from a re-sale are not allowed.^ But if the purchase is made, but at a later time than it would have been, the measure of damages is the difference between the market price at the date of purchase, and when it would have been made had the telegram been promptly delivered. ^ When the message sent over the lines is an offer to sell, and the price as transmitted is less than that stated in the original message, and is accepted, the sender of the message is in some States held bound by it, as he selected the telegraph as his agency for transmitting the offer, and he is therefore damaged just the difference between the two prices, and can recover that difference from the company.^ § 623. Goods ordered sent to Wrong Place. — When a person orders goods by telegraph, and by error of the tele- graph company the address of the telegram is changed, and consequently the goods are sent to the wrong place, the measure of damages is the value of the goods at the place to which they should have been sent, less the value at the place to which they were sent, if the plaintiff has, in fact, obtained his property.* In a case in Texas, ^ it was held that where a telegraph company, by negligently failing to deliver a telegram, caused the sender's cattle to be shipped to a point where they had to be sold at less than the market price at the place whence they were shipped, the measure of damages 1 Hibbard v. Western Union Telegraph Co., 33 Wise. 558; Western Union Telegraph Co. v. Hall, 124 U. S. 456. 2 Western Union Telegraph Co. v. Hall, 124 U. S. 456; United States Telegraph Co. v. Wenger, 55 Pa. St. 262; Squire v. Western Union Telegraph Co., 98 :\rass. 232; True v. International Telegraph Co., 60 Me. 9; Pearsall y. Western Union Telegraph Co., 124 N. Y. 267. Cf. supra, § 576. 8 Ayer v. Western Union Telegraph Co., 79 Me. 493 ; but see post, §§ 684-688. 4 Western Union Telegraph Co. v. Reid, S3 Ga. 401. ^ Western Union Telegraph Co. v. Stevens, Tex. Sup. 16 S. W. Rep. 1095. MEASURE OP DAMAGES. 537 was the difference between such market price and the amount for which they were sold. So it has been held,^ that where a message relates to the sale and delivery of cattle owned by plaintiff, the contract for which sale was made by the sender on [)laintiff''s behalf, the measure of damages for failure to deliver the message is the difference between the market value where the cattle were at the time and the contract price at the place of delivery, less the cost of transportation to the latter place. § 624. Furnishing Market Reports. — "When the telegraph company agrees to furnish market reports to a customer it in fact agrees to furnish true reports, and if it furnishes incorrect information on these points, the measure of damages of the person who makes a purchase acting upon the faith of this information is the difference between the price which he paid and the market price at that time. That is to say, if the person receiving the incorrect quotation of prices, as a result thereof orders a quantity of goods, and is obliged to pay therefor a higher price than that quoted to him, he can "recover the difference between the amount he paid and the amount which the market report sent to him by the telegraph company indicated that he would have to pay.'^ In the case of Turner v. Hawkeye Telegraph Com- pany, ^ the defendant company agreed to furnish the plaintiff company with daily quotations as to the price of grain in Chicago. Upon a day in August it sent him an incorrect quotation, and he, being short of wheat, the incorrect quota- tion being much lower than the market, he ordered the pur- chase of a large quantity of wheat through his brokers. The wheat was purchased, and the error was then discovered. Subsequently wheat went don'n below the point quoted incor- * Western Union Telegraph Co. v. Williford, 2 Tex. Civ. App. 574. ^ Turner v. Hawkeye Telegraph Co., 11 la. 458; Bank of Xew Orleans V. Western Union Telegraph Co., 27 La. An., 49. Cf. supra, § 292 et se^j. 8 41 la. 45S. 538 THE LAW OF ELECTRICITY. rectly in the telegram. Plaintiff brought suit for his damages, and the court held that in this case the proof that the message contained an incorrect quotation was of itself proof of negligence, and did not require the plaintiff to investigate further and show how the error occurred, or rather that this was a case where the question of negligence does not come in, being simply a breach of contract to forward correct reports. It was held that the measure of damages was the difference between what he paid for the wheat, i. e., the market price, and what the price tele- graphed him was, and that the fact that the grain reports were of Chicago prices notified the telegraph company that he was likelv to deal there. ^ § 625. Delayed Telegram, Loss of Contract. — When the telegram which has been negligently delayed in transmission is the acceptance by the plaintiff of an offer for the sale of goods to him, and by reason of the negligence he loses the contract, his damages are the difference between the con- tract price and the market price at the place where the offer was made. 2 So where the injury to one to whom the tele- gram was sent, by failure to deliver it, was the prevention of a sale that would otherwise have been consummated, the measure of damages is the price which would have been realized by the sale less the market value of the goods on that day, or if they had no market value, the contract price J It has been said that the measure of damages for a mistake in a telegram giving the wrong market price is difference between the quoted price and the actual price, if the receiver's damages amount to as much. HoUis v. Western Union Telegraph Co., 91 Ga. 801 ; and that if a person who receives a telegram which quotes a wrongful price of stock, sells his stock, and gets the market value therefor, in the absence of evidence that the market value is less than the real value, he can- not recover damages. Hughes v. Western Union Telegraph Co., 114 N. C. 70. 2 Squire v. Western Union Telegraph Co., 98 Mass. 232; True v. International Telegraph Co., 60 Me. 9; Cannon v. Western Union Telegraph Co., 100 N. C. 300. Compare supra, § 619. MEASURE OF DAMAGES. 539 less the price that could have been obtained afterwards. ^ So when the message was an acceptance of an offer to sell a lot of land at a certain price, and the message was delayed, and before its delivery the lot was sold, the court held that the damages were suflicicntly distinct and certain to be recovered, and that the measure is the difference between the price offered and the price when the telegram was delivered.'^ § Q2G. No Loss if not definite. — But if there is no definite offer made to the plaintiff', but a mere quotation of prices, no distinct quantity being mentioned, and the plaintiff's telegram itself is in reality a mere offer to take a certain quantity at the price quoted, there is no loss of contract by the negligence of the telegraph company, and only nominal damages can be recovered.^ Thus where there was a message asking the price of pork, and answer giving price, and a message accepting this offer, which message was not sent, and there was a verdict for plaintiff of twenty-five cents, the price of transmission, the court justified this by saying that the plaintiff" had no contract with the sendee for pork, and the damages were too uncertain.* § 627. Instances of Speculative Loss. — In an action against a telegraph company for failure to deliver a message Western Union Telegraph Co. v. James, 90 Ga. 254. Cf. Western Union Telegraph Co. v. Brown, 84 Tex. 54. 2 The Court says : " It seems like attempting to cut the throat of common sense and knock the brains out of reason, to maintain the proposition that a man sustains no loss or injury cognizable by the law, when he is offered property for S30U0 worth S5000 in the market, and which he is ready and anxious to buy, but is prevented from doing so, by negligence, such as is disclosed in the record and not denied or avoided by any excuse or justification." Alexander v. Western Union Telegraph Co., 60 Miss. IGl; affirmed Alexander v. Western Union Telegraph Co., 67 Miss. 3S6. 8 Beaupre r. Pacific & Atlantic Telegraph Co., 21 ]\Iinn. l.">5; Meggett r. Western Union Telegraph Co., 69 Miss. 198; Kinghorne r. Montreal Telegrapli Co., 18 Up. Can. Q. B. GO. * Beaupre v. Pacific & Atlantic Telegraph Co., 21 Minn. 155. 540 THE LAW OF ELECTRICITY. instructing the addressee as follows, " Buy me 100 Burling- ton & Quincy common stock, and 10,000 Santa Fe incomes," the mere facts that a few days after the message was sent the price of the above-named stock advanced, and so con- tinued until suit was brought, does not entitle plaintiff to re- cover more than nominal damages, if there was no evidence that, if the stock had been purchased, the plaintiff would have ever sold it at a profit. ^ So where a telegraph message was, "Sell 200 sh. Tenn. Coal & Iron," and the defendant com- pany failed to deliver the same for several days after it should have been delivered, and the plaintiff, the sender, did not in fact own any stock in said company, and no trans- action was made, he is not entitled to recover the difference between the market value of said stock on the day when the telegram should have been delivered and the day when it was actually delivered.^ § 628. Profits of a Business. — The rule that the damages claimed must be certain prevents the recovery of possible profits {{. e., the profits which it is hoped will be obtained) from carrying on a business or making sales of goods. The damages are disallowed in such a case because they are in their nature uncertain and contingent, and the rule excludes all remote, speculative, and uncertain results, as well as possible profits, advantages, and other like consequences which might have arisen, or which it can be shown would have arisen from the performance of the contract.^ Thus, for instance, where a telegram requesting boiler-makers to send a man to repair the boilers in a distillery was not delivered, it was held that the owners of the distillery might recover damages caused by the idleness of their employees and ^ Western Union Telegraph Co. v. Fellner, 58 Ark. 29. 2 Cahn V. Western Union Telegraph Co., 46 Fed. Rep. 40. Cf. Levy v. Western Union Telegraph Co., .35 Mo. App. 170. 2 True V. International Telegraph Co., 60 Me. 9, 25; Squire v. Western Union Telegraph Co., 98 Mass. 232; Leonard v. New York, Albany & Buffalo El. Mag. Telegraph Co., 41 N. Y. 565. MEASURE OF DAMAGES. 5-il teams, but could not recover probable profits on liquors that could have been made had no delay occurred.^ So it has been held that where the telegram referred to a horse, the owner could not recover prize purses which the horse might have won.^ § 629. Profits of Resale of Goods. — Exj^ectcd profits On the resale of merchandise ordered by telegraph cannot be computed as a part of the damages of the plaintiff. The courts Ijase this view upon the rule relating to the measure of damages as between a vendor and a i^urchaser, that rule being that if the vendor fails to deliver the goods purchased, the purchaser cannot recover against him what he could have sold the goods for if they had been delivered, Ijut merely the difference between the contract price of the goods and the market price at the time delivery should have been made.^ The courts extend the same principle to tele- graph messages, and say that when the telegram orders the purchase of articles and is never delivered, the measure of damages can have no relation to the profit which might have been made by the sender of the telegram if the articles had been purchased and afterwards resold by him, and the plaintiff can only recover nominal damages since he has suffered no injury for which the law will allow him to re- cover substantial damages.'* "Where the delay in the delivery of a telegram broke up the negotiations for a sale, the court allowed the plaintiff to recover the difference between the contract price and the market price of the goods. ^ 1 Rich Grain Distilling Co. v. Western Union Telegraph Co., 13 Ky. L. R. 256 ; to the same effect, Western Union Telegraph Co. v. Carroll, 84 Ga. 597. 2 Western Union Telegraph Co. v. Crall, 39 Kan. 5.'^0. See also Kiley V. Western Union Telegraph Co., 39 Hun, 158; Ilibbard v. Western Union Telegraph Co., 33 Wise. 558; Cahn t;. Western Union Telegraph Co., 1 C. C. A. 107. 8 AVilliams v Reynolds, 18 Eng. Com. L. 493. * Western Union Telegraph Co. v. Hall, 124 U. S. 454; Hibbard i>. Western Union Telegraph Co., 33 Wise. 558. * Western Union Telegraph Co. r. James, 90 Ga. 254. 542 THE LAW OF ELECTRICITY. § 630. Profits when included in Damages. — It is, how- ever, well settled that in cases where specific profits are directly included in the damages which the plaintiff has suffered, he may recover them.^ Thus if a person sends a telegram which is an acceptance of an offer to sell goods, and by delay in the transmission of the message the party having the goods sells to another, and the plaintiff is obliged to go into the market and buy the goods at a higher price, he may recover the difference between the contract price and the market price, even though this difference includes a profit from the rise of the goods in the market. 2 § 631. Transmission of Money by Telegram. — Telegraph companies, in some cases, undertake to transfer money by telegraphic despatch from one place to another. In such a case they are under their usual obligation to use diligence in the transmission, but come also under an absolute obli- gation to the person sending the money for the amount if it is not delivered. They are bound in such a case to see that the money is delivered at the place requested by the sender, but if the delivery is not made and the money is paid back to the sender, and he has not been damaged by the failure to make payment, there are no substantial damages for which the telegraph company is responsible. This point was decided in a recent case in Pennsylvania,^ where the money was forwarded to pay a note of the sender. The money not arriving, the note was protested, but as it was taken up by him on the next day, and there was no proof of his credit having been injured by the protest, or that it was known to any persons outside of the bank and himself, it 1 Western Union Telegraph Co. v. Hall, 124 U. S. 451 ; Squire v. Western Union Telegraph Co., 98 Mass. 232; Griffin v. Colver, 16 N. Y. 489; True v. International Telegraph Co., 60 Me. 9; Leonard v. New York, Albany & Buffalo El. Mag. Telegraph Co., 41 X. Y. 565. 2 Squire v. Western Union Telegraph Co., 98 Mass. 232. 8 Smith V. Western Union Telegraph Co., 150 Pa. St. 561. MEASURE OF DAMAGES. 543 was held that the telegrai)h company was not responsible since no damages had, in fact, been suffered. § 632. Identification of Payee. — What responsibility a tele- graph company undertakes in such a case as to the identifi- cation of the person to whom the money is to be delivered, has been differently decided in different cases. The better rule seems to be that a telegraph company which accepts money for delivery to a person named, should get reasonable identification from him before delivery, and that if through failure to exercise such care in identifying the person to whom the money is sent, an impostor gets it, the telegraph company will be liable.^ § 633. Mental Sufferings. — There is a wcll-settlcd principle of the law that damages cannot be recovered for mental sufferings and injury to the feelings alone, Avhen no other species of damages is proved. ^ Thus it has been held that in an action of contract, if the only damage the plaintiff proves is grief, mortification, and similar feelings at the breach of the contract by the other party, he can only recover nominal damages.^ So in actions of tort for negli- gent injury, it is held that damages to the feelings only, or mental distress, or fright or anxiety alone, will not main- tain the action.* In suits against telegraph companies, however, the courts have not, in all States, adhered strictly to this rule, as will be seen hereafter, but liave sometimes granted damages for injury to the feelings in cases where no other legal damages have been proved. Considering these damages, first, in relation to actions by the sender, and 1 Supra, §§ 423-428; and see Western Union Telegraph Co. v. Brown, 58 Tex. 172; Lowery v. Western Union Telegraph Co., (30 N. Y. 19S. ■•* Canning v. AVilliamstown, 1 Cush. 452; Wilcox v. R. R. Co., 52 Fed. Rep. 264 ; Masters v. Warren, 27 Conn. 293 ; Stewart v. Ripon, 38 Wise. 584. 8 Wilcox I'. R. R. Co., 52 Fed. Rep. 2G4; Trigg r. Railway Co., 74 Wo. 147 ; Newman v. Western Union Telegraph Co., 54 Mo. App. 434. * Canning v. Williamstown, 1 Cush. 452. 544 THE LAW OP ELECTRICITY. second, in relation to actions by the person to whom the message is sent, the rules established by the courts are as follows : — § 634. Actions by Sender. — There are comparatively few instances where actions have been brought by the sender of a telegram for injury to the feelings only. In one State, Indiana, several of these actions have been brought, alleging only damages to the feelings, and the courts have sustained the actions, partly because, in the opinion of the court, mental damages are "actual damages," so as to be included in the statute of that State allowing the sender to recover his '' actual " damages in case of negligence of the telegraph company ; and partly on grounds of public policy, because so many messages on the telegraph lines relate to matters involving the deepest and strongest human feelings, that it would be injurious to the common welfare to allow telegraph companies to escape all liability for negligence in transmit- ting such messages.^ The court lays stress also on the fact that the language of the message in these cases puts the telegraph company on its guard, that the utmost diligence and promptness are necessary in transmission and delivery. The later decisions in Indiana, however, show a tendency to restrict this operation of the rule more closely than the earlier cases. ^ Thus in an action by the sender of a message against a telegraph company for failure to deliver the mes- sage to plaintiff's daughter announcing the death of her brother, injury to plaintiff's feelings, and anxiety and dis- tress of mind, caused by the daughter's absence at such a time, through the failure to deliver the message, were held to be proper elements of damage, but his distress or anxiety resulting from sympathy with the sorrow of his wife or other 1 Reese v. We.stern Union Telegraph Co., 123 Tnd. 294; Western Union Telegraph Co. v. Newhouse, 6 Ind. App. 422; Western Union Telegraph Co. v. Stratemeier, 6 Ind. App. 12.5. ^ Western Union Telegraph Co. v. Stratemeier, 6 Ind. App. 125. MEASURE OF DAMAGES. 545 persons of liis family at the same absence, was held to be too remote.^ § Go5. Same Subject (continued). — The courts in North Carolina have fuUuwed these decisions in so far as holding that damages for mental anguish alone may be recovered. Thus in a case where the facts were that the action was for failure to deliver a message, and the complaint showed that the telegram was sent by the plaintiff's sister, who was left in charge of his house, and its cost was prepaid out of the plaintiff's funds, and that it was directed to his father, at whose house plaintiff was stopping, the message being "Tell Henry to come home. Lou is bad sick," the court sustained the action, saying that the plaintiff was able to sue on either of two grounds, first, that the sender was his agent; or second, that the message was for his use and benefit, and that he might recover damages for his mental anguish and suffering.^ The courts of Illinois have not decided this particular question, but have held on demurrer that failure to deliver a telegram sent by a father to a son, summoning him to the deathbed of his mother, whereby the father did not have the comfort and fellowship of his son, entitles the plaintiff, the father, to at least the price of the telegram. ^ § 636. Same Subject (continued). — In Kansas there has been a direct decision that such damages cannot be recovered. In this case the action was by the person to whom the mes- sage was sent, but he declared as principal, the sender being in fact his agent. The message was from a son to his father announcing the death of an uncle. " Uncle Sam died last night. Funeral Wednesday." The message was negligently transmitted, and the plaintiff brought suit, alleging mental distress only as damages. He showed that he had paid back to his son the price of sending the message, and had ratified ^ Western Union Telegraph Co. v. Stratemeier, Ind. App. 125. 2 Sherrill v. Western Union Telegraph Co., 109 N. C. rv27. 8 Logan V. Western Union Telegraph Co., 84 111. 468, Cf. § 643. 35 646 THE LAW OF ELECTRICITY. the agency. The court held that mental distress alone did not constitute legal damages except as part of physical pain, but that if the negligence was so gross as to be equal to malicious or wanton purpose, exemplary damages might be given. ^ § 637. Mental Distress as Aggravation. — In SUch actions, however, if the plaintiff shows actual legal damages, either the right to recover the price of the message, or other damages, it is held that he may recover as aggravation damages for the injury to his feelings. ^ Thus, for instance, where the message was to a doctor, and said, " Come first train to see my wife. Very low," and in consequence of the negligent delivery of the message the doctor did not come, and the wife died, it was held that, this substantial loss to the plaintiff being shown, he was entitled also to recover damages for his distress and mental anxiety caused by the delay of the message.^ § 638. Texas Cases. — The state in which actions have been most frequently brought by the sender of the message to recover damages to his feelings is the state of Texas. In this state, from the earliest cases, such damages have been allowed, the court settling the question of whether such damages might be recovered when they were the only damages claimed, by holding that the action being in con- tract, the plaintiff is entitled on proof of breach to recover at least the price of sending the message or nominal damages, and thus bringing the case within the principle that when any pecuniary damages, however slight, can be proved, damages for mental suffering may be claimed in addition.* On this same principle it has been held that 1 West V. Western Union Telegraph Co., 39 Kan. 93. Compare, on subject of rif^ht to sue, supra, §§ 454-456. See posi, § 045. - Western Union Telegraph Co. r. Henderson, 89 Ala. 510; Western Union Telegraph Co. i'. Wilson, 93 Ala. 32. 8 Western Union Telegraph Co. v. Henderson, 89 Ala. 510. Cf. Western Union Telegraph Co. v. Wilson, 93 Ala. 32. * See post, §§ 643, 053, and cases there cited. MEASURE OF DAMAGES. 547 where the action was brought by a husband for injury to the wife caused by delay in the transmission of a message sum- moning a doctor, the husband in the right of the wife might recover for the prolonged suffering of the latter caused by the absence of the doctor, and in addition to this physical injury could recover damages fur her mental suffering for the same reason.^ § 639. Texas Cases (continued). — In another case, the plaintiff's wife having died, he telegraphed to her brother, "Mrs. B. is dead. Will l)ring corpse on train to-night." Owing to a delay caused by the fact that an intermediate office was closed at the time in the evening when the mes- sage came to it, the message was not delivered in time to be of any efficacy. The court held that the plaintiff might recover not only the price of the message, but also for his mental distress arising from the delay. ^ In another case,^ the facts were as follows : The plaintiff was with her sick husband in Los Angeles ; he died, and she telegraphed to her agent to send her $200, meaning to use the money in trans- porting the corpse home. In transmitting the despatch the place from which it was sent was changed from Los Angeles to San Francisco. Her agent accordingly telegraphed !J200 to San Francisco. She, not receiving the money, waited and telegraphed again, and her agent, then finding out the mis- take, sent the money to Los Angeles. She sued, and it was held that the negligence of the telegraph company having caused the money to be sent to San Francisco, she could recover not only the 8200, but large damages for her mental grief and distress at being obliged to wait for the interment of her husband. This damage was held to be the natural and proximate result of the negligence, and that the telegraph company was informed of the probability of such a result. ^ Western Union Telegraph Co. x\ Cooper, 71 Tex. 507. ^ Western Union Telegraph Co. v. Broesche, 72 Tex. 654. 8 Western Union Telegraph Co. v. Simpson, 73 Tex. 422. 548 THE LAW OF ELECTRICITY. § 640. Texas Cases {continued). — In another case the court applied a rule which ohtained at one time in Texas, and which is discussed at length in cases below relating to actions by the addressee for damages, ^ namely, that the message must show the relationship of the parties in order to make the telegraph company liable. The message in this case was, "Come on first train. Bring Ferdinand. His father is very low." The court held that the language of this message was not sufficient to give notice to, or put the telegraph company upon inquiry as to the relationship of the parties, and therefore the plaintiff could not recover. 2 In another case the plaintiff sued for the loss of his wife. He had recently removed with her, she being in ill health, from the place where they had been living, and at the time of the removal had obtained a promise from her doctor that he would come to see her on receipt of a telegram saying that she was worse. She becoming worse, her husband tele- graphed for the doctor, but the message was never delivered. The court held that there was no evidence to show that the doctor's coming would have benefited her, .and therefore the plaintiff could not recover damages for her loss, and that being the case, a fortiori^ could not recover damages for the mental suffering and anguish occasioned by her loss.^ §641. Texas Cases {continued). — In another case,* the court defeated the plaintiff's action on the ground that the facts showed that, had the message been delivered promptly, he would have suffered the same injury to his feelings as actually occurred, and the real cause of these damages was the action of third parties. In several other cases, ^ where 1 Post, §§ 658-660. 2 ^yesterll Union Telegraph Co. v. Kirkpatrick, 76 Tex. 217. 8 Western Union Telegraph Co. v. Kendzora, 77 Tex. 257. 4 Western Union Telegraph Co. v. Andrews, 78 Tex. 305. 5 Gulf, Colorado & Santa Fe Telegraph Co. v. Richardson, 79 Tex. 649; Western Union Telegraph Co. v. Hoffman, 80 Tex. 420; Western Union Telegraph Co. v. Cooper, 20 S. W. Rep. 47. MEASURE OF DAMAGES. 54'J the telegrams were messages summoning doctors to attend sick persons, the negligent delivery of the telegrams was held to give the sender a cause of action for injury to his feelings, as well as pecuniary damages. In the earlier of these cases,^ the court held that the mental anguish of the father, who was the plaintiff, caused by the delay, was an element of damages, but the sufferings of the child or other relatives could not be taken into account. In the latter case,2 the father sued both in his own right and as next friend of his son. The court defeated the action of the father on the ground of contributory negligence, because he did not summon some other physician when it was evident that the one desired was not coming, but sustained the action of the son for his physical injury and sufferings. In several other cases the same principle was maintained.^ § 642. Extension of this Line of Cases. — This line of cases where the message pertained to sickness or death of relatives or friends has been extended in recent decisions of the same State in two directions. The first case was one where the telegram was sent by the plaintiff to make inquiry as to his lost child. The message in question was addressed to an uncle to whose house it was supposed he might have gone, and was, " Is Fred there ? Left yesterday. Answer quick. " The telegram was not delivered promptly, and it was held that the parents could recover damages for the mental suffer- ing caused to them by the delay in the delivery of the message.* In another case the facts were that the plaintiff's 1 Gulf, Colorado & Santa Fe Telegraph Co. v. Richardson, supra. 2 Western Union Telecfraph Co. v. Hoffman, supra. ^ Erie Telegraph & Telephone Co. v. Grimes, 82 Tex. 89 ; Western Union Telegraph Co. v. Ivations, 82 Tex. 540 ; Lydon v. Western Union Telegraph Co., 82 Tex. 36G ; Potts v. Western Union Telegrapli Co., 82 Tex. 515; AVestern Union Telegraph Co. v. Stephens, 2 Tex. Civ. App. 129; Western Union Telegraph Co. v. Berdine, 2 Tex. Civ. App. 52U; Western Union Telegraph Co. v. Merrill, Tex. Civ. App. 22 S. W. 826. * Womack i^. Western Union Telegraph Co., 58 Tex. 179. 550 THE LAW OP ELECTRICITY. daughter, who was fifteen years of age, had eloped. The plaintiff, being desirous of preventing the marriage, tele- graphed to the clerk of the county not to issue a license, as the daughter was under age. The telegram was delayed, and did not arrive at the clerk's office until after the couple were married. The court held that the father could recover for damage to his feelings. ^ § 643. Action by Addressee. — There have been many actions by the addressees of telegrams to recover damages for mental distress caused by delay or error in the transmission of the message. The decisions of the courts on the question of whether such an action can be maintained in cases where nothing but mental distress has been alleged as damage, are not uniform. There is a number of reputable decisions hold- ing that such damages may be recovered. The first case in this line was in Texas,- which is said to have been decided on a statement in a text-book to the effect that such damages might be recovered. This case has not been uniformly fol- lowed in its own State, but there have been similar- decisions in many other States.^ In a recent case in Alabama where a message was sent, "How is ma? Answer at once," the message being sent by a brother to his sister, and another brother sent an answer which was negligently delayed by 1 Western Union Telegraph Co. v. Procter, 6 Tex. Civ. App. 303. 2 So Relle v. Western Union Telegraph Co., 5.5 Tex. 308. 8 Stuart V. Telegraph Co., 66 Tex. 580; Western Union Telegraph Co. V. De Jarles, 27 S. W. Rep. 792 ; Wadsworth v. Western Union Telegraph Co., 86 Tenn. 695; Reese v. Western Union Telegraph Co., 123 Ind. 294; Beasley v. Telegraph Co., 39 Fed. Rep. 181; Western Union Telegraph Co. v. Grig.sby, 29 S. W. Rep. 406; Western Union Telegraph Co. v. Stratemeier, 6 Tnd. App. 125 ; Western Union Tele- graph Co. V. Henderson, 89 Ala. 510; Thompson v. Western Union Telegraph Co., 106 N. C. 519 ; Chapman v. Western Union Telegraph Co., 90 Ky. 265; Mentzner v. Western Union Telegraph Co., 62 N. W. Rep. 1; Young v. Western Union Telegraph Co., 107 N. C. 370; Thompson V. We.stern Union Telegraph Co., 107 N. C. 449 ; Western Union Telegraph Co. V. Kinsley, 28 S. W. Rep. 831. Cf. § 634. MEASURE OF DAMAGES. 551 the telegraph company, it was held that the person sending the first message, requesting an answer, made the person sending the reply his agent, and consequently might main- tain an action of contract on the telegram, and recover nominal damages for the breach, and in addition damages for mental suffering. ^ § G44. statement of Grounds of this Class of Decisions. — The best statement of the ground on which these cases can be supported is given in a recent case in Kentucky. " It seems to us that both reason and public policy require that it (telegraph company) should answer for all injury resulting from its negligence, whether it be to the feelings or the purse, subject only to the rule that it must be the natural and proximate consequence of the act. The injury to the feelings should be regarded as part of the actual damages. If it be said that it does not admit of accurate pecuniary measurement, equally it may be said of any cause, when mental anguish enters into the estimate of a wrong, and it furnishes no sufiicient reason why an injured party should not be allowed to look to the wrong-doer for reparation. " ^ Or, as the reasoning is stated in another case, the principle of the mental damages cases is that when the message is of such a nature as to put the telegraph comjiany on its guard as to its great importance, and to thus bring home to it notice that its failure to promptly deliver the message will probably result in great grief and mental suffering to the sender or the addressee of the message, then the action can be maintained and damages for the mental suffering occa- sioned by the negligent failure of the company to deliver the message promptly can be recovered. ^ § 645. Cases denying Mental Damages. — On the other hand, in a number of cases, the courts deny that such actions * We.'^tern Union Teleefrapli Co. v. Cunningham, 99 Ala. 31 1; on the subject of actions by addressee, see ante, §§ 454-457, 460-473. Cf. § G34. ^ Chapman ?'. Western Union Telegraph Co., 90 Ky. 205. " Tyler v. Western Union Telegraph Co., 54 Fed. Rep. 634. t)02 THE LAW OF ELECTRICITY. may be maintained, and adhere to the old rule that the law cannot give damages for mental distress except in connection with physical injuries, and in one or two isolated classes of cases. The federal courts are almost unanimous in adher- ing to this line of decision. ^ In the Crawson case cited below the court recognizes the double line of decisions on this point, but holds that the better rule is to deny such damages. It is noticeable in the Gahan case in Minnesota that the statute contained the same phrase, "actual damages," which was held in Indiana to include "mental distress;" but the court in the Gahan case would give no such meaning to the phrase. The great difficulty with such damages is the difficulty of estimating and proving them. There are no facts to go by.^ The only case in the federal courts opposed to this line of decisions is the case of Beasley v. Western Union Telegraph Company,^ a case at 7iisi prius, in which the subject was not carefully considered, and the court simply held that the damages recoverable by the plaintiff for delay in informing him of the sickness of his wife should be limited to disap- pointment and anguish suffered by the plaintiff from inabil- ity to be with his wife before her death, and that no punitive damages should be allowed, nor should the plaintiff be allowed to recover for the grief naturally arising from the mere fact of his wife's death. § 646. State Decisions denying Mental Damages. — There ar^ also numerous decisions in the State courts which sus- tain the rule of the federal courts, and hold that damages 1 Chase v. Western Union Telegraph Co., 44 Fed. Rep. 554; Crawson V. Western Union Telegraph Co., 47 Fed. Rep. 544; Gahan v. Western Union Telegraph Co., 50 Fed Rep. 433; Tyler v. Western Union Tele- graph Co., 54 Fed. Rep. 634; Kester v. Western Union Telegraph Co., 55 Fed. Rep. 603 ; Western Union Telegraph Co. v. Wood, 57 Fed. Rep. 471 (Tex.); Western Union Telegraph Co. v. Gidcumb, 28 S. W. Rep. 699. 2 Kester v. Western Union Telegraph Co., 55 Fed. Rep. 603. 8 30 Fed. Rep. 181. MEASURE OF DAMAGES. 553 for mental suffering and pain caused by the negligence of the telegraph company in transmitting or delivering the message, cannot be recovered excci)t when accompanied by physical injury or pecuniary damages, unless in cases where malice or wantonness of the telegraph operators renders the imposition of punitive damages lawful.^ In Alabama the court distinguishes actions of tort from actions of contract, holding that in the latter mental damages only cannot be recovered, 2 § 647. Courts adhere to Old Rule. — In the cases cited above the courts adhere to the old rule, which is unquestion- ably settled in all other branches of the law, that damages for mental suffering alone cannot be recovered except as a matter of exemjdary or punitive damages; that in order to be the subject of indemnification, the mental sufferings must accompany either some pecuniary loss or some injury to the person, except in one or two well-defined exceptions, such as actions for breach of promise of marriage; and even there the damages have been supported upon the pecuniary loss suffered by the plaintiff. The courts admit the strong argu- ments that may be made in favor of supporting a claim for such damages, but feel themselves obliged to follow^ the old beaten tracks, or, as the court in one case expresses it, "to go super antiquas vias.^' § 648. Reasons for allowing such Damages. — These are cer- tainly strong points in favor of the decisions which hold that damages for mental distress alone may be recovered in such 1 Russell V. Western Union Telegraph Co., 3 Dakota, 315; Western Union Telegraph Co. v. Rogers, 68 Miss. 748 ; International Ocean Tele- graph Co. V. Saunders, 32 Fla. 434 ; Butner v. Western Union Telegraph Co., 37 Pac. Rep. 1087; Connell v. Western Union Telegraph Co., 116 Mo. 35 ; Chapman r. Western Union Telegraph Co., 88 Ga. 763 ; Suni- nierfield v. Western Union Telegraph Co., 87 Wise. 10; Blakeney v. AVest- ern Union Telegraph Co., 22 Cent. Law Jouru. 147. ^ Western Union Telegraph Co. v. Wilson, 93 Ala. 32; Western Union Telegraph Co. v. Cunningham, 99 Ala. 309. 5o4 THE LAW OF ELECTRICITY. cases. The great reliance of the public for keeping large corporations to their duty in matters relating to the conduct of their business, is the right of action against them by- individuals who are injured by their negligence; and this reason applies with peculiar force to telegraph companies, on account of the practical monopoly of the telegraphic busi- ness. To be sure, in some States a penalty is by statute im})0sed upon telegraph companies in every case of negli- gence in the conduct of their business, without regard to the question of what damages may have been suffered by the plaintiff; but this is true of only a small number of States, and in all the others to hold that damages cannot be recovered, in cases where no pecuniary loss can be shown, is to free telegraph companies from any incentive to the per- formance of their duties with care and skill and promptness in cases where no pecuniary loss is involved, except such cumbersome machinery as an information by the attorney- general, with a view to the revocation of their charter, which, in any event, would only be adopted in cases of extreme and long-continued negligence on the part of the telegraph company hardly to be imagined. The ingenuity of counsel has succeeded in most cases in introducing some element of pecuniary damages upon which the case can rest, such as the recovery of the price of the message or other slight pecuniary damages; but this does not seem to be as broad a principle as the importance of the case would demand. On the other hand, it is unquestionably a great innovation in the principles of law to allow recovery of damages for injury to the feelings alone, on account of the wholly metaphysical and unreal character of the damages, and the difficulty of admeasurement. On the Avhole, it must be questioned whether the step of allowing such damages is not too long a one for the courts to make ; that it, in fact, would be judicial legislation, which is always to be avoided; but that the legislatures of the various States should remedy MEASURE OF DAMAGES. 555 tliis dilTiculty by statute, allowing the recovery of such daaiages in proper eases. § G4U. Language of the Message. — The COUrts which hold that damages for mental suffering may be recovered in these cases base the recovery, as was stated in a previous section, ujjon the fact that the language of the message gives direct notice to the telegraph company that the message concerns important social events, and that negligence on its part is likely to be followed by mental suffering and distress to the parties, and that the subject-matter of the contract for transmitting the telegram is a matter of feeling only, and that as damages are allowed for pecuniary loss when the subject-matter of the telegram is a pecuniary transaction, so damages should be allowed for injury to the feelings when the subject-matter of the telegram is a transaction involving feelings. Thus messages which, on their face, show that they relate to the sickness or death of rela- tives, give direct information to the telegraph company of the nature of the damages which may be suffered through its negligence. For instance, in a case where the tele- gram was, "Father come at once. Mother is sick," it was held that damages for mental distress caused by the delay in delivering this telegram might be recovered, although no physical pain or pecuniary loss had been suffered. ^ § 650. Same Subject {continued). — So where the message was, " Come in haste. Your wife is at the point of death," it was held that similar information was given to the tele- graph company. The court in this case, as in many others, admits the difficulty of measuring the damages, but says that it is not more difficult to measure them in such cases as these than it is in other cases where such damages are well settled, and further adverts to the danger to the public in allowing telegraph companies to escape all responsibility 1 Thompson V. AVesteni Uniou Telegraph Co., 106 N. C. 549. 556 THE LAW OF ELECTRICITY. as to a class of messages which forms so large a portion of its business.^ § 651. Reasoning in Wadsworth v. "Western Union Telegraph Company. — 111 this case the court discusses the subject at great length, and supports its decision on the following reasoning: first, that damages for mental suffering may be recovered in all cases where any damage can be recovered ; second, that whenever any legal right is infringed, some damage results; and third, that the plaintiff had a legal right to have the messages transmitted promptly, and that this right had been infringed by the delay. The court in this case again rests the equity of its decision upon the ground that the language of the telegraph message gives the telegraph company full information as to its importance, and that it would be very bad policy to allow telegraph companies to escape all liability in so large a class of cases. § 652. Newport News & M. V. R. Co. v. Griffin. — This case was followed in the same State in a later case,^ where the telegram stated that the plaintiff's father was in a dying condition, and asked him to come at once and bring a surgeon. The telegram was never forwarded, but the plain- tiff came home a few days later, before his father's death. The court rests the right of the plaintiff in this case to maintain his action upon the language of the statute which says that any " aggrieved " party may recover damages, and that the plaintiff in this case, although not the sender of the message, was an aggrieved party by the negligent trans- mission, and says, "He had such an interest or benefit in said telegram as would give him a right of action for damages against the company for negligently failing to send the telegram." § 653. Texas Cases. — In Texas the line of cases holding telegraph companies responsible for mental sufferings caused 1 Cf. Wadsworth v. Western Union Telegraph Co., 86 Tenn. 695. 2 Newport News & M. V. R. Co. v. Griffin, 92 Tenn. 694. MEASURE OF DAMAGES. 557 by their negligence in transmitting or delivering messages has been very fully developed. ^ In this State was decided the first case holding that mental suffering alone is a suffi- cient cause of action, in opposition to the universal current of authority in all other classes of cases. This was the case of So Relle v. Western Union Telegraph Company. ^ This was an action of damages in which the question was the liability of the telegraph company for injury resulting to the feelings of a person from the wilful neglect of the agent of the telegraph company to transmit and deliver a message announcing the death of such person's mother, and requesting his presence at the funeral, etc. § 654. So Relle v. Western Union Telegraph Company. — The facts were that the plaintiff's mother died on the 16th day of January, 1874, near a small town in Texas ; that on that day a near relative of hers prepared the message, and delivered the same to the telegraph company's agents in said town to be promptly transmitted and delivered to the plaintiff at Austin, and paid the charge for such service; that the company's operators did not transmit the message, and cause it to be delivered within a reasonable time, although the plaintiff was in the city of Austin, and at his usual place of business, but "wilfully " neglected and failed so to do for several days after the date of sending, and by reason of such " wilful " neglect and failure, the plaintiff was prevented from being present at the funeral services of his mother, and providing for her remains being properly cared for, and from paying to her the last tribute of respect, etc., for which plaintiff claimed the sum of 850,000 as damages. The attention of the court appears to have been principally turned to the question as to whether the damages to the feelings were general or special damages; that is, whether they ought to have been pleaded specially, or might 1 See also ante, §§ 638, 6i3, and cases therein cited. 2 55 Tex. 308. 558 THE LAW OF ELECTRICITY. be claimed under the general allegations of damage, and decides that they are natural damages, and need not he specially pleaded. § 655. Opinion of Court in So Relle's Case. — But the court also says, "It appears to be the settled rule of law in this State that injury to the feelings caused by the wilful neglect or fault of another, constitutes such actual damages for which a recovery may be had," citing therefor two cases against railroad companies, and then quotes from Shearman and Redfield on Negligence, where the authors say : " In case of delay or total failure to deliver a message relating to matters not connected with business, such as personal or domestic matters, we do not think that the company in fault ought to, escape with mere nominal damages on account of the want of strict commercial value in such messages. Delay in the announcement of a death, an arrival, the straying or recovery of a child, and the like, may often be productive of an injury to the feelings which cannot be estimated in money, but for which a jury should be at liberty to award fair damages," and the court holds that such damages are actual damages for which a recovery may be had. §656. Cases following So Relle's Case. — This case was not, it is believed, intended to decide the point that mental sufferings alone constitute damages for which recovery may be had, and in a succeeding case in the same State, ^ a claim of this nature was not allowed. In this case the message was from a son to his father announcing the death of the son's wife and child. The son was among strangers, and without money, and in great need of assistance from his father, and sent a telegram of the above nature, which was unreasonably delayed in delivery; and for that reason the father was prevented from going to the assistance of his son, and from supplying him with money, and the son was har- assed by creditors, and had to sell his property, — and other 1 Gulf, Colorado & Santa Fe R. Co. v. Levy, 59 Tex. 542, 563. MEASURE OF DAMAGES. 559 damages. The court in discussing the case first stated that no allegation or proof of any damages to the appellee was made, unless mental suffering alone constitutes such char- acter of injury as will entitle a person to damages in an action based upon negligence ; and then discusses this ques- tion, and decides it in the negative, in accordance with the great current of authorities. ^ The court adverts to the case of So Rclle, saying that it is cited to them as an authority for the proposition that an action for mental suffering alone might be maintained, but that the opinion in that case docs not seem to maintain the proposition. § 657. Texas Cases (continued). — These cases were fol- lowed by a number of cases in which the action was by the addressee of the telegram, the message being in language which conveyed its great importance, in which cases the court uniformly held that the plaintiff could recover damages for mental suffering. ^ The principle upon which these cases were decided was that the message was for the benefit of and related to the affairs of the addressee only; that the sender was therefore-, in fact, the agent of the addressee to cause the message to be transmitted, and that the contract of the sender with the telegraph company being for the benefit of the addressee, the latter could sue on it. He thus was able to sue the telegraph company in contract, and to recover at least the nominal damages of the price of the message, and in addition all the damages to the feelings sustained by hira through the negligence of the telegraph company. ^ Citing Canning v. Williamstown, 1 Gush. 452 ; Lynch v. Knight, 9 H. L. C. 577 ; and other cases. 2 Stuart r. Western Union Telegraph Co., 66 Tex. 580; Western Union Telegraph Co. r. Adams, 75 Tex. 531 ; Western Union Telegraph Co. v. Feegles, 75 Tex. 537; Western Union Telegraph Co. v. Moore, 76 Tex. 66 ; Western Union Telegraph Co. v. Rosentreter, 80 Tex. 406 ; Western Union Telegraph Co. v. Jones, 81 Tex. 274; Western Union Telegraph Co. V. Houghton, 82 Tex. 561 ; Western Union Telegraph Co. v. Berin- ger, 84 Tex. 38; Western Union Telegraph Co. v. Carter, 85 Tex. 5S0; 560 THE LAW OF ELECTRICITY. § 658. Relationship of Parties shown by Message. — In One of the earlier cases in Texas the court tried to establish a limitation of this rule to the effect that the language of the message must show such relationship between the sender and the addressee, or the parties to the message, and the person whose health or other affairs it concerns, as to give the telegraph company information that an injury to the feel- ings of the parties sending or receiving the message would result from its negligence.^ §659. Same Subject (continued). — In a later case the court modified this rule somewhat, saying that the language of the telegram need not show the relationship of the parties, for such a rule would be unreasonable, but must show enough to put the telegraph company upon inquiry as to the relationship. The message in this case was, " Clara come quick. Rufe is dying," and this language was held to be enough to put the telegraph company upon inquiry. ^ This modification of the rule was also affirmed in the case of Western Union Telegraph Company v. Feegles,^ and later cases.'* § 660. Same Subject {continued). — On the other hand, in the case of Western Union Telegraph Company v. Kirk- patrick,^ where the message was, "Come on first train. Western Union Telegraph Co. v. Wisdom, 85 Tex. 261 ; Ikard v. Western Union Telegraph Co., 22 S. W. Rep. 5-34 ; Western Union Telegraph Co. V. McLeod, 22 S. W. Rep. 988; Western Union Telegraph Co. v. House- •wright, 5 Tex. Civ. App. 1 ; Western Union Telegraph Co. v. Karr, 5 Tex. Civ. App. 61 ; Western Union Telegraph Co. v. Jobe, 6 Tex. Civ. App. 407; Western Union Telegraph Co. v. Zane, 6 Tex. Civ. App. 586 ; Western Union Telegraph Co. v. AVomack, 29 S. W. Rep. 932; Western Union Telegraph Co. v. Cooper, 71 Tex. .^07. 1 Western Union Telegraph Co. v. Brown, 71 Tex. 72.3. 2 Western Union Telegraph Co. v. Adams, 75 Tex. 531. 8 75 Tex. 537. 4 Western Union Telegraph Co. v. Womack, 29 S. W. Rep. 932; West- em Union Telegraph Co. v. Jeanes, 29 S. W. Rep. 1130 ; Western Union Telegraph Co. v. McMillan, 30 S. W. Rep. 298. 6 76 Tex. 217. MEASURE OP DAMAGES. 561 Bring Ferdinand. His father is very low," it was held that the message showed nothing to put the telegraph company upon inquiry. In "Western Union Telegraph Company v. Moore, ^ the message, " Billy very low. Come at once," was held to ])ut the telegraph company upon inquiry.^ In the case of Western Union Telegraph Company v. Carter,^ the court expressly overrules Western Union Telegraph Com- pany V. Brown,* in so far as the same decides that a tele- gram must show the relationship of the parties, and it would seem to be the rule now in Texas, as in some other States, that whenever the language of the message shows that it relates to illness or death, the language itself is information to the telegraph company that injury to the feelings is likely to result from negligence in transmitting or delivering it, and the addressee can have his action against the tele- graph company for such injury, although it is the only damage claimed outside of the price of the message, the action in such cases being in contract, and the addressee relying upon the implied agency of the sender in transmitting the message.^ It is noticeable that the federal court in Texas has taken an opposite view from the State courts on this subject,^ the federal court holding that as this was a matter of general law, it was not bound by the decision of the State courts, but could decide the matter on general principles. 1 76 Tex. 66. 2 The same ruling was made on analogous messages in Western Union Telegraph Co. v. Rosentreter, 80 Tex. 406, and Western Union Telegraph Co. V. Jones, 81 Tex. 274, and Western Union Telegraph Co. v. Beringer, 84 Tex. 38. 8 85 Tex. 580. < 71 Tex. 723. 6 Western Union Telegraph Co. v. Evans, 1 Tex. Civ. App. 297 ; s. c 5 Tex. Civ. App. 56 ; Western Union Telegraph Co. v. Linn, 26 S. W. Rep. 491 ; Western Union Telegraph Co. v. Fore, lb. 783 : Western Union Telegraph Co. v. Carter, 2 Tex. Civ. App. 626 ; Western Union Telegraph Co. V. Smith, 30 S. W. Rep. 549, 937 ; AVestern Union Telegraph Co. v. Coffin, 30 S. W. Rep. 896. Cf. ante, § 643. « Western Union Telegraph Co. v. Wood, 57 Fed. Rep. 471. 36 562 THE LAW OF ELECTRICITY. § 661. Statute of Limitations. — The courts of Texas seem to have heen led into a certain inconsistency in following out the line of decisions which has been discussed above; for in laying the foundations for this species of recovery, they have declared the action to be an action of contract, and based the recovery upon the fact that the plaintiff recovers the price of the message as pecuniary damages, and mental sufferings as aggravation ; whereas, in a recent case, the same court has decided that such an action for mental sufferings is action for injury to the person, — that is, an action of tort, — and is barred by the lapse of one year under the Texas statute of limitations. This decision perhaps implies a still further assimilation of the Texas cases to the ordinary cases holding that damages may be recovered by the addressee of a message for mental sufferings, the courts in other States in such cases holding that the action is one of tort, and that the damages for mental suffering are recoverable simply because they are the natural, direct, and proximate results of the negligence of the defendant. ^ § 662. Amount of Damages. — It is, of course, impossible to prove in dollars and cents the amount of injury which the plaintiff" has suffered in cases where the injury is to his feel- ings. The courts in some States have therefore established the rule that the plaintiff need not give any evidence of the amount of such sufferings, provided they are such as would naturally flow from the injury complained of, and the jury may assess such amount as they choose,^ the verdict of the jury being conclusive as to the propriety of the amount, unless it is so large as to convince the court of appeals that the verdict was the result of corruption, passion, or preju- dice. It has been held that a verdict of $4,500.25 for failure to deliver to the plaintiff a telegram from his wife, inform- ing him that a sick child of theirs was worse, was an 1 See supra, § 643 et seq. 2 Western Union Telegraph Co. v. Cunningham, 99 Ala. 309. MEASURE OF DAMAGES. 563 excessive verdict, and shocked the sense of justice of the court. ^ § GG3. Excessive Damages. — This principle was followed in a later case, where the jury rendered a verdict of 8-1,750 as compensation for mental sufferings, and the court held that this was so great an amount as to show that the verdict was the result of prejudice on the part of the jury.^ This case relied upon the case of Western Union Telegraph Company V. Evans, 3 in which the court, following the case of Western Union Telegraph Company v. Houghton,* held that a verdict of 85,000 for mental sufferings was too great. The court adverts in this case to the fact that there can be no evidence which would settle in dollars and cents the measure of damages for mental sufferings, and that the jury is at liberty to make its own estimate of these sufferings, and their verdict is conclusive unless the amount given by them is so excessive as to show passion or prejudice. The court, how- ever, says that it is not irrelevant for the plaintiff to testify as to the strength of his emotions upon the facts in the case. At least that such evidence, when admitted, is not cause for reversing the verdict.^ In another case where the negli- gence of the telegraph company caused a delay of twelve hours in the arrival of a physician, the court held that a verdict of $1,999.99 was excessive.^ In a later case the court held that a verdict of $1,000 was not excessive under the cir- cumstances of the case,^ and similarly of a verdict for 8500.8 1 Western Union Telegraph Co. v. Houghton, 82 Tex. 561. Cf. Stuart r. Western Union Telegraph Co., 66 Tex. 580. 2 Western Union Telegraph Co. r. Finer, 1 Tex. Civ. App. 301. 8 1 Tex. Civ, App. 297, s. c. affirmed 5 Tex. Civ. App. 56. * Supra. 6 Cf. Western Union Telegraph Co. r. IMcLeod, 22 S. W. 988; Western Union Telegraph Co. r. Carter, 85 Tex. 580. ^ Western I'nion Telegraph Co. v. Rerdine, 2 Tex. Civ. App. .520. '' Western Union Telegraph Co. v. Stephens, 2 Tex. Civ. App. 129. 8 Western Union Telegraph Co. v. Hill, 26 S. W. Rep. 252. 564 THE LAW OP ELECTRICITY. § 664. Exemplary or Punitive Damages. — In States where the courts allow punitive or exemplary damages in actions of tort, the courts have held that the plaintiff in an action against a telegraph company for negligence in transmitting a message may, if he shows such negligence as amounts to a wanton or malicious purpose on the part of the telegraph company, or actual malice, recover exemplary or punitive damages. 1 A simple allegation, however, of gross negli- gence on the part of the telegraph company does not entitle the plaintiff to recover exemplary damages. ^ It seems that if the plaintiff, in making his claim, divides it into two portions, one representing his actual damages and the other y his exemplary damages, he will not be limited to this division, but may recover the total amount of his claim either as actual or exemplary. ^ 1 West V. Western Union Telegraph Co., 39 Kan. 93; Western Union Telegraph Co. v. Morris, 77 Tex. 173; Western Union Telegraph Co. v. Rogers, 68 Miss. 748 ; Western Union Telegraph Co. v. Cunningham, 99 Ala. 309. 2 Western Union Telegraph Co., v. Godsey, 16 S. W. Rep. 789. 3 Western Union Telegraph Co. v. Morris, supra. TELEGRAMS AND TELEPHONIC COMMUNICATIONS. 565 CHAPTER XXIX. TELEGRAMS AND TELEPHONIC COMMUNICATIONS AS EVIDENCE. § 665. Telegraphic Messages as Evi- § 673. Actions against Telegraph Com- deuce. pauies. 666. Written Telegram. 674. Presumjjtion of Receipt from 667. Proof of Custom to Destroy Mes- aemling. gatres. 675. Notice to Produce Telegram. 668. Which Telegram is the Original. 676. Identification of Telegram. 669. Durkee r. Vermont Central Kail- 677. Telepli 673. * Reliance Lumber Co. v. "Western Union Telegraph Co., 5S Tex. 394. 572 THE LAW OF ELECTRICITY. mission. In some cases this point is not considered at all, the question being treated as wholly a matter of proof of loss of the original.^ § 676. Identification of Telegram. — In cases involving the negligence of the telegraph company in the transmission or delivery of a message, it is necessary in the pleadings to describe the message sufficiently to identify it, and this is generally done by stating the day on which the despatch was delivered to the company. If the proof shows that the despatch was in fact delivered to the company on a different dav, this is not a fatal variance if there is sufficient other evidence in the case to show that the message proved is the message relied upon in the allegations of the complaint. ^ § 677. Telephone Messages as Evidence. — It has been held that the answers which may be made to persons calling up a party by his number in the telephone directory, and through the central office, are evidence against him in the nature of admissions, and this whether or not the witness who proves these answers can identify the voice of the person giving the replies. 3 This is on the principle that when a person places himself in connection with the telephone system by subscribing thereto, and having an instrument in his office, he thereby invites communications through this instrumen- tality, and therefore conversations so held are admissible in evidence in the same manner that personal interviews by a customer with an unknown clerk in charge of an ordinary shop would be admitted in relation to the business therein carried on, and the fact that the voice was not identified does not render the conversation inadmissible, but may affect the weight of such evidence before the jury.* 1 Western Union Telegraph Co. v. Collins, 45 Kan. 95; and see ante, § 673. 2 Western Union Telegraph Co. v. Kilpatrick, 97 Ind. 42. 8 Wolfe V. Missouri Pacific Ry. Co., 97 Mo. 473; Sullivan ». Kny- kendall, 82 Ky. 483 ; Globe Printing Co. v. Stahl, 23 Mo. App. 451 ; Wilson V. Minneapolis & N. W. Railroad Co., 31 Minn. 481. * Wolfe V. Missouri Pacific Ry. Co., 97 Mo. 473. TELEGRAMS AND TELEPHONIC COMMUNICATIONS. 573 § 678. Instances of Conversations. — In a rCCCnt Case the facts were that the witness called up the plaintiff's ofiice through the central office, but could not identify the voice of the i)erson answering as the voice of the plain- tiff. The court, however, held that telephonic replies from anybody answering on the telephone exchange to the call of the number of either party to a suit was admissible against the party, in the absence of evidence showing that he was not authorized to represent the suljscriber.^ In another case, a witness who was an emi)loyee of the plaintiff, testified that the defendant had two numbers in the tele- phone directory, one being his office and the other his ware- rooms; that he, the witness, called up by telephone to the central office of the Bell Telephone Company for the defend- ant's number, and was by the central office connected there- with ; that the witness could not remember which of the two numbers he called, but that he was sure it was one of them ; that there was an answer from the defendant's number to the telephone call; that he, the witness, did not know whose voice- it was, and could not testify whose voice it was, and that he did not know the defendant's voice, and did not know the defendant ; that he asked through the tele- phone if that was Stahl (the defendant) and the answer was "Yes." Witness asked why the defendant did not pay the bill for which the suit was brought, and the party answering said, " All right. I will attend to that matter about the first of the month." The court held that it could judicially notice the invention of the telephone and its adoption as a commercial instrument, and its use in telephone exchanges, and that the person answering to the name of the sub- scriber upon his proper number being called up must be considered to be prima facie the person to whose name he replies. 2 1 Wolfe V. :Missouri Tacific Ry. Co., 97 Mo. 473. 2 Globe Printing Co. v. Stahl, 23 Mo. App. 451. 574 THE LAW OF ELECTRICITY. § 679. Same Subject {continued). — In another case a con- versation over a telephone was admitted under the following circumstances. The plaintiff's agent, wishing to talk with some one representing the defendant, went to the telephone central office in his town and called up an adjoining town. As the agent could not talk over the telephone, he got the operator to do it for him. The operator in the town called up told the operator at the calling town that he would send for the person required, and soon after the calling operator was told that such person was in the office of the called station. There was then conversation over the telephone between the calling operator and the person present in the called office, the calling operator repeating the conversation to the plaintiff's agent. At the trial the party called admitted having a conversation over the telephone on the subject, but his statement of the conversation differed widely from that of the plaintiff's agent. It was held that the conversation might be admitted against the party called on the ground that he made the calling operator his agent to repeat the conversation over the telephone to the plaintiff's agent. 1 It will be noticed that two grounds of admissibility are advanced in the cases cited. First, agency, and second, that there is prima facie proof of identity. It may perhaps be considered that either will sustain the admissibility with certain limitations, i. e., the replies if relied upon as admis- sions must cither be of such a nature as a general clerk or employee might make, while if they are relied upon as personal communications of the party addressed there must be some proof of his identity, either from the nature of the replies, the sound of the voice, or otherwise. § 680. Not admitted as Evidence, — In a casc in New York this subject was considered, and a decision slightly at variance with the foregoing rule was arrived at, so far as the language of the court is concerned, although it is believed 1 Sullivan v. Kuykendall, 82 Ky. 483. TELEGRAMS AND TELEPHONIC COMMUNICATIONS. 575 that the facts of the case rendered the case in substance not inconsistent. In this case the question whether the tele- phone message was evidence without identification of the voice was considered by the court, and it was held that such identification was necessary. In this case, however, the question arose on the sufficiency of an affidavit authorizing an attachment, the statute requiring the affidavit to set forth the sources of information on which it was made, so that the court might pass upon them. The affidavit in question stated that the sources of information were a tele])hone convei'sation with one of the parties, but did not identify the voice, and the court held it insufficient.^ 1 Murphy v. Jack, 142 N. Y. 215. Cf. Nebraska Nat. Bank v. Burke, 62 N. W. Rep. 452. 576 THE LAW OF ELECTRICITY. CHAPTER XXX. CONTRACT BY TELEGRAM, AND OTHER MATTERS. § 681. Contract by Telegram. When Complete. 682. Instances of Contract by Tele- gram. 683. niiuois Case. 684. Mistake in Terms. English Rule. 685. Mistake in Terms. United States Rule. 686. Binds Sender. 687. Opinion in Ayer v. Western Union Telegraph Company. 688 . Liability of Agent on Telegraphic Authority. 689. Contract by Telegram, where made. 690. Telegram Sufficient under the Statute of Frauds. 691. Instances. 692. Lease by Telegram is Lease in writing. 693. Statutory Confirmation of Above Rule. 694. Record of Written Instruments. 695. Checks, Due Bills, Bills of Ex- change, Promissory Notes. 696. Transmission of Seal by Tele- graph. 697. Telegraphic Copy. 698. Use of Telegram in Legal Pro- ceedings. 699. Statutes on this Point. 700. Trademark of Telegraph Com- pany. § 681. Contract by Telegram. When complete. — The ques- tion of the formation of contracts by telegram has received some consideration in several cases, and the courts have generally placed it upon the same ground as the formation of a contract by letter. The rule is that if a party makes an offer by telegraph, he authorizes a reply thereto by the same agency, thus constituting the telegraph company his agent for making the offer to the party to whom it is made, and for receiving his reply, and the delivery of the reply telegram to the telegraph company for transmission to the offerer completes the contract; and for the same reason a retraction of the offer must reach the person to whom the offer is made before he has given his acceptance to the telegraph company, in order to be an effectual retraction. ^ 1 Stevenson v. McLean, 5 Q. B. Div. 346 ; Minnesota Oil Co. v. Collier Lead Co., 4 Dill. U. S. 4.31 ; Trevor v. Wood, 36 N. Y. 307. Cf. Baker v. Holt, 56 Wise. 100; Perry v. Mount Hope Iron Co., 5 Atl. Rep. 632; Haas V. Myers, 111 III. 421. CONTRACT BY TELEGRAM, AND OTIIEll MATTERS. 577 § 682. Instances of Contract by Telegram. — Thus ill a casc where the defendant had made an offer by letter to the plaintiff to sell iron at a certain price, and the plaintiff tele- graphed back an inquiry as to different terms of sale, and the defendant then telegraphed that he had sold the iron to another party, but before his telegram reached the plaintiff, he, in his turn, had telegraphed accepting the terms made in the letter; the court held that the plaintiff's f.rst telegram was a mere inquiry, and did not affect the offer contained in the letter, and that his acceptance telegram being sent before he received the telegram retracting the offer, formed a con- tract binding on the parties.^ It is to be noticed in this case that the original offer was made by letter and not by telegraph, and the case is therefore stronger on this point than when the original offer is made by telegram, as was the case in Minnesota Oil Company v. Collier Lead Company. ^ In this latter case the court confirmed the rule as stated above, but held that in that particular case, where the offer was to sell oil, since the offer related to a subject-matter which fluctuated violently in price, the offer in its nature required an immediate acceptance, and that the delay of the accepting company was so great that the offer must be con- sidered to have lapsed by its own terms before the telegram of acceptance was sent. The court, however, said that the delivery of the acceptance telegram to the telegraph com- pany for transmission would have completed the contract, if it had been delivered in time. §683. Illinois Case. — In a case in Illinois^ the court again affirmed the rule that the delivery of the acceptance telegram to the telegraph company for transmission to the 1 Stevenson r. McLean, 5 Q. B. Div. 546. ^ Supra. If the letter is a mere circular of prices, a telegram taking a certain quantity has been held to be merely an ofier, and not a binding contract. !Moulton v. Kershaw, 59 Wise. 316. 8 Haas V. Myers, 111 111. 421. 87 578 THE LAW OF ELECTRICITY. offerer completes the contract, but this was an ollter dictum, as the court decided the case upon a wholly dif- ferent principle. The facts in this case were that the plain- tiff and the defendant had been discussing entering upon a certain scheme for the purchase and sale of cattle. The arrangement between them was that the defendant should go to the place where the cattle were, in a distant town, and investigate the advisability of the purchase, and the price. He was then to telegraph to the plaintiff, giving him the price and particulars, and asking him if he wished to join the venture, upon which the plaintiff was to telegraph yes or no, and the defendant was then to telegraph him again, giving him the amount necessary for him to deposit, which he was to do, and then the defendant could draw against it for part payment for the cattle. The defendant, accordingly went to the place of purchase, and after investigation tele- graphed to the plaintiff, "Do you want Murphy's 45 at ranch? Answer." The plaintiff telegraphed an answer, "Yes, I will take' third interest. Will leave for Billings to-night. " This telegram was never delivered, but a subse- quent telegram of the plaintiff as to the advisability of the purchase was delivered. The defendant, not hearing from the plaintiff, considered that he did not care to join the venture, and combining with another person, purchased the cattle and made a profit on the sale of them. The plaintiff brought a bill in equity to be declared a partner in the venture and for his share of the proceeds. The court held that under the circumstances of the case, the telegram of the defendant to the plaintiff required the receipt of the answer by the defendant before the arrangement between them was complete; that the parties, by their arrangement, had evidently contemplated that the possession of the information by the defendant of the plaintiff's willing- ness to join the venture was a condition precedent to his acquiring an interest therein, and the case was therefore CONTRACT BY TELEGRAM, AND OTHER MATTERS. 579 different from an ordinary offer by telegraph and telegraph i(3 acceptance.^ § G84. Mistake in Terms. English Rule. — If a mistake is made in the transmission of a telegram containing terms of an offer, and the offer is accepted in its erroneous form, the question arises as to the effect of this error upon the parties concerned in the transaction. In England it is held that neither the party employing the telegraijh nor the telegraph company can be made lial>le for the error to the person who receives the message. ^ This rule is based upon the view that the telegraph company is not the agent of the sender to make the contract, but a mere forwarder of the despatch, and, therefore, if it forwards a despatch which he did not send there has been no meeting of the minds which makes the contract. The sender is therefore not liable on the erroneous offer, and for other reasons which have been discussed above,^ the English courts hold the telegraph company not liable for the error.'* § 685. Mistake in Terms. United States Rule. — In the United States the question is not definitely settled. As regards the telegraph company, the subject is discussed in preceding sections.^ There have been no cases in which it has been definitely held in an action on the contract that the sender of the message is bound to the addressee by the contract as erroneously transmitted by the telegraph company and accepted by him.^ § 686. Binds Sender. — In two cases, which were actions against the telegraph company for negligence in transmit- 1 To the same effect, Lewis v. Browning, 130 ]\rass. 173. 2 Playford v. United Kingdom Electric Telegraph Co.. L. R. 4 Q. B. 706; Henkel v. Pape, 6 Ex. 7; Verdin v. Robertson, 10 Ct. of Sess. Cas. 35. « Supra, §§ 460, 461. * As to liability of an agent transmitting the offer as received by him by telegram, see post, § GSS. 6 Sii^ra, §§ 400-473. « Compare §§ 6GS, 669. 580 THE LAW OF ELECTRICITY. ting the messages,^ the decisions have directly involved this ])oint, for the measure of damages depended on the obligation of the sender to fulfil the contract as erroneously trans- mitted, and have been decided in favor of holding the sender bound by the erroneous contract. In both cases the action was by the sender of the message to recover damages for the loss he alleged he had suffered by being obliged to carry out the contract in the erroneous form in which it was transmitted by the telegraph company, and accepted- by the person to whom it was made. The court in the Maine case says : — § 687. Opinion in Ayer v. Western Union Telegraph Com- pany. — " It is evident that in case of an error in the trans- mission of a telegram, either the sender or receiver must often suffer loss. As between the two, upon whom should the loss fairly fall ? Now much the safer and more equitable rule, and the rule the public can most easily adapt itself to, is that as between the sender and receiver, the party who selects the telegraph as the means of communication shall bear the loss caused by the errors of the telegraph. The first proposer can select one of many modes of communica- tion, both for the proposal and the answer. The receiver has no such chance except as to his answer. If he cannot safely act upon the message he receives through the agency selected by the proposer, business must be seriously hampered and delayed. " ^ 1 Western Union Telegraph Co. v. Shotter, 71 Ga. 760; Ayer v. Western Union Telegraph Co., 79 Me. 493. Cf. ante, § 622. 2 When a person telegraphs to another to telegraph money to a third person, and the money is so telegraphed, the person who sends the money cannot recover the same in an action of contract against the person to whom he telegraphs it upon a failure of the consideration therefor, for the loan which he makes is to the person who orders the money sent by telegraph, and not to the person to whom he sent the money. Thus where one being arrested, telegraphed to a friend in another city to send money by telegraph to his lawyer for the purpose of obtaining bail, an(l the money was so sent, and the arrested person was discharged in a nol. CONTRACT BY TELEGRAM, AND OTUER MATTERS. 581 § G88. Liability of Agent on Telegraphic Authority. — If an agent, who receives his instructions by telegram, makes an offer to third parties based on the telegram, he is assumed to warrant his authority, and will be held lialjle per- sonally if the telegram proves to be erroneous;^ but if he signs the contract as agent "by telegrai)hic authority," he does not warrant his authority, and will not be held bound in case an error occurred in the transmission. ^ § G89. Contract by Telegram, where made. — A contract by telegram is made in the place from which the telegraphic offer is sent, and the rights and liabilities flowing from the contract depend upon the law of the State in which that place is.^ § 690. Telegram sufiBcient under the Statute of Frauds. — A telegram is a sufficient writing under the statute of frauds when it is supplemented by proof of the authenticity of the signature to the original despatch as the handwriting of the one whom it is sought to hold.* Thus in a case where the plaintiff sued the defendant on an agreement to endorse the note of a third party, the plaintiff put in as evidence the copy of the telegram which he received from the telegraph company, without any proof of the loss of the original, or pros, on the ground of insanity, the person who telegraphs the money cannot maintain an action against the person to whom he sent it, since his loan was to the person ordering it sent. Neither can he avoid his contract of loan with the person ordering the money on the ground of the insanity of the latter, for it is said by the Court, that a person, although insane, if he is not a raving madman or an idiot, is capable of an act, even if his act be voidable. The promise of an insane man is not absolutely void. Atwell v. Jenkins, 40 N. E. Rep. (Mass.) ITS. 1 Richie !'. Bass., 15 La. An. 068. 2 Lilly V. Smales, L. R. 1892, 1 Q. B. 456. Cf. ante, §§ 461, 469, 470. 8 Tillinghast v. Boston, etc., Co., 39 S. Car. 484 ; Moore v. S. C. For- saith Machine Co., lb; Perry v. IMount Hope Iron Co., 5 Atl. Rep. C32. * Rector Provision Co. v. Sauer, 69 Miss. 235 ; Dunning v. Roberts, 35 Barb. N. Y. 463; Smith v. Eastou, 54 Md. 138; Little v. Dougherty, 11 Colo. 103. Compare arite, § 672. 582 THE LAW OF ELECTRICITY. any proof that the signature of the original was the hand- writing of the defendant, or any other proof as to its authen- ticity. The facts were that the telegram put in evidence was sent in answer to one telegraphed to the defendant stat- ing that the plaintiff was in the third party's office, and would attach the property of the third party if his debt was not secured. In reply a telegram was received by the plain- tiff saying that the defendant would endorse the third party's note for three months. The court held that the evi- dence was not sufficient to connect the telegram received with the defendant, but that a telegram with satisfactory proof of its authenticity is an instrument in writing under the statute of frauds relating to a promise to guarantee the debt of another. 1 § 691. Instances. — In a case in New York the facts were that a third party ordered a bill of goods of the plaintiff's firm in another city. The firm, doubting his financial responsibility, refused to ship them. The defendant and one of the firm and a third party named Hall had some talk together about the matter of guaranteeing the responsibility of the party ordering the goods, in a room where there was a telegraph line ; and finally a message was sent to the plain- tiff as follows: "Will be responsible for the bill of goods ordered by X. yesterday." The goods were accordingly shipped, and X. did not pay for them. The plaintiff's firm therefore sought to hold the defendant on his telegram. The defendant maintained that he did not authorize the message as sent, but what he did authorize was a message guarantee- ing the responsibility of Hall, but the court held that the proof showed that the operator who sent the message, and who was a relative of the defendant, was authorized by the defendant to act in the matter, and that his negligence in transmitting the message, therefore, affected and bound the defendant, and that the telegram was a sufficient writing under 1 Smith V. Easton, 54 Md. 138. CONTRACT BY TELEGRAM, AND OTHER MATTERS. 583 the statute of frauds as the signature by the telegraph operator in the name of the defendant and in his presence and by his directions was, in effect, his signature.^ But under a statute which enacts that false representations of financial solvency to be actionable must be in writing, a telegram containing such representations is not enough. ^ In a case in Colorado it was held that a contract of employ- ment by telegraph is in writing under the statute of frauds of that State. 3 § 692. Lease by Telegram is Lease in "Writing. — Analogously to the foregoing rule, it is held that a valid lease or sale of real estate may be made by telegram, provided the proof shows that the telegram was signed by the party whom it is sought to hold, or by some one duly authorized by him.* § 693. Statutory Confirmation of above Rule. — The rule of the courts that telegrams are writings suilicient under the statute of frauds has been supplemented in several States by statutes which directly enact that telegrams shall be con- sidered instruments in writing, or which authorize the trans- mission of written instruments by telegraph. Thus in Oregon, Washington, and Nevada it is provided by statute that whenever any notice, information, or intelligence, written or otherwise, is required to be given, the same may be given by telegraph, provided that the despatch containing the same be delivered to the person entitled thereto, or to his agent or attorney, and notice by telegraph shall be deemed actual notice.^ § 694. Record of Written Instruments. — Furthermore, powers of attorney or other instruments in writing duly J Dunning v. Roberts, 35 Barb. N. Y. 463. ^ Weil V. Schwartz, 4 West. Rep. 772. 8 Little i;. Dougherty, 11 Colo. 103. * Calhoun v. Atchison, 4 Bush, Ky. 261; Godwin v. Francis, 5 C. P. 295. 6 Oregon, Hill's Annot. Stat. §§ 4168,4169; Washington, Hill's Stats & Codes, §§ 1552, 1553; Nevada, Gen. Stat. §§ 932, 933. 584 THE LAW OF ELECTRICITY. proved or acknowledged and certified so as to be entitled to record, may, together with the certificate of proof or acknowledgment, be sent by telegraph and the telegraphic copy or duplicate thereof shall, prima facie, have the same force and eilect in all respects, and may be admitted to record and be recorded in the same manner with like effect as the original. 1 § 695. Checks, Due Bills, Bills of Exchange, Promissory Notes. — In the same States it is further provided that checks, due bills, bills of exchange, promissory notes, and all other orders and agreements for the payment and delivery of money, or other things of value, may be made or drawn by telegraph, and when so made or drawn, shall have the same force and effect to charge the maker, drawer, endorser, or acceptor thereof, and shall create the same rights and equities in favor of the payee, drawee, endorsee, acceptor, holder or bearer thereof, and shall be entitled to the same days of grace as if duly made or drawn and delivered in writing. But it shall not be lawful for any person other than the maker or drawer thei'eof, to cause any such instrument to be sent by telegraph so as to charge any person thereby. Whenever the genuineness or execution of any such instrument received by telegraph shall be denied on oath by the person sought to be charged thereby, it shall be incumbent upon the party claiming under or alleging the same to prove the existence and execution of the original writing from which the telegraphic copy or duplicate was transmitted. The message shall in all cases be preserved in the telegraph office from which the same is sent. Any instrument in writing duly certified by a notary public under his hand and official seal, or by a commissioner of deeds, or a clerk of a court of record, to be genuine within the personal knowledge of such officer, may, together with such 1 Oregon, Hill's Annot. Stat. § 4170; Washington, Hill's Stats. & Codes, § 1554 ; Xevada, Gen. Stats. § 934. CONTRACT BY TELEGRAM, AND OTHER MATTERS. 585 certificate be sent by telegraph, and the telegraphic copy thereof shall, prima facie only, have the same force, effect, and validity in all respects whatsoever as the original, and the burden of proof shall rest with the party denying the genuineness or due execution of the original.^ In the absence of statute, a bank is not bound to accept by telegram the checks or drafts of its depositors even though it has funds. 2 § 696. Transmission of Seal by Telegraph. — In the same States it is provided that whenever any document to be sent by telegraph bears a seal, either private or official, it shall not be necessary for the operator sending the same to tele- graph any description of the seal, or any word or device thereon, but the same may be expressed in the telegraphic copy by the letters "L. S.," or by the word "Seal. "3 § 697. Telegraphic Copy. — The phrase " telegraphic copy " or "telegraphic duplicate," w^hen used in these statutes, is to be construed to mean any copy of the message made or prepared for delivery at the office to w^hich the message may have been sent by telegraph.* § 698. Use of Telegram in Legal Proceedings. — The tele- graph, owing to its quickness of operation, is a valuable assistant in the enforcement of legal processes, and has been recognized as such in legal proceedings, in giving notice and carrying information, provided it is shown that the tele- gram was duly authorized by the sender, and it is properly proved in the case. Thus in England,^ a person, having obtained an injunction against another to prevent a sheriff's 1 Oregon, Hill's Annot. Stat. §§ 4171, 4172; Washington, Hill's Stats. & Codes, §§ 1555, 155G; Nevada, Gen. Stats. §§ 935, 93(5. 2 Myers v. Union National Bank, 27 111. App. 254. « Oregon, Hill's Annot. Stat. § 4174; Washington, HUI's Stats. & Codes, § 1559 ; Nevada, Gen. Stats. § 939. * Oregon, Hill's Annot. Stat. § 4177 ; Washington, Hill's Stats. & Codes, § 1560. 6 Bishop, in re, 13 Ch. Div. 110. 586 THE LAW OP ELECTRICITY. sale which was to take place that day, telegraphed to the sheriff's deputy, who was holding the sale, to stop it. The sheriff's deputy received the telegram, but paid no attention to it. It was sought to commit the other party for contempt. The court held that a notice of an injunction might be sent by telegraph, and if the party against whom the injunction is issued actually receives the telegram, and therefore the notice of the injunction, he will be committed for contempt if he disregards it, but that court will investigate, in each case, the fact of actual receipt of the message and its contents. It was also said that a person who procures an injunction to be served at a distant place should telegraph to a local solicitor, and get him to give notice to the parties interested, and that the sheriff's officer who receives such notice should telegraph to the bankruptcy offices or the chancery clerk's office in London, to see if such injunction has, in fact, issued. ^ § 699. Statutes on this Point. — In several States the legis- latures, recognizing the advantage of communication by telegraph in suits at law, have enacted that writs, processes, etc., may be telegraphed from one point to another, and in such case the telegraphic copy may be considered as an original, and may be served or executed by an officer in the same manner as the original might be, if delivered to him.^ § 700. Trademark of Telegraph Company. — In a few States statutes have been enacted which provide that the president or secretary of any telegraph company may file in the office of the county clerk in the county in which the principal office of the company within the State is situated, a copy of any printed blank or envelope, picture, or device, used or 1 To similar effect, Bryant, in re, L. R. 4 Ch. Div. 98; Tonkinson v. Cartledge, 22 AUj. L. J. 123 ; Cape May, etc. R. R. Co. v. Johnson, 35 N. J. Eq. 422 ; Morgan v. People, 59 111. 58. 2 Oregon, Hill's Annot. Stat. §§ 4169, 4170, 4172, 4173, 4174; Wa.sh- ington. Hill's Stats. & Codes, §§ 1553, 1554, 1556, 1557, 1558; Nevada, Gen. Stat. §§ 933, 934, 936, 937, 938. CONTRACT BY TELEGRAM, AND OTHER MATTERS. 587 intended to be used by said company, as a distinguishing mark, notice, or index to said business, and thereupon such blank, envelope, picture, or device shall become the property of the company, and it shall not be lawful for any person, unless by the employment or permission of said company, to print, publish, distribute or use, or cause to be printed, published, distributed or used, either of them, or any copy, counterfeit or imitation thereof, under a penalty of fine not exceeding 8500 or imprisonment not exceeding six months.^ 1 Oregon, Hill's Annot. Stat. § 2009; Nevada, Gen. Stats. § 940; Cf. Street v. Union Bank, L. K. 30 Cli. Div. 156; Ager v. Peuin. 6c Orient. St. Nav. Co. L. R. 26 Ch. Div. 637. 588 THE LAW OF ELECTRICITY. CHAPTER XXXI. TELEPHONE AND ELECTRIC LIGHT OPERATION. § 70L Telephone Operation. § 709. Repair of Machinery. 702. Telephone Company receiving 710. Imperfect Apparatus. Written Messages for Trans- 711. Tapping Electric Light Wires, mission. 712. Letting Contract for Street 703. Method of Business for Jury. Lighting. 704. Other Rules of Telephone Opera- 713. Power Station a Nuisance. tiou. 714. Insurance on Loss by Fire. 705. Operation of Electric Light 715. Electricity used in Capital Lines. Punishment. 706. Cutting out Lamp. 716. People v. Durston. 707. Trimming Lamp. 717. Kemmler, in re. 708. Suitable Appliances. § 701. Telephone Operation. — It is obvious that telephone companies do not come under the same liabilities for negli- gence in the transmission or delivery of messages, as tele- graph companies do, to parties who send messages over their lines according to the ordinary mode of using the lines, because in most cases the parties converse directly with each other, merely using the telephone lines as a means for this end. The telephone company, therefore, ordinarily incurs no liabilities when parties simply use its lines and instruments for their own conversations. ^ Whether or not the telephone company might be held liable if, owing to its negligence, its instruments or lines failed to work, and therefore prevented the transmission of messages, or rendered the sounds so confused that the recipient of the message heard it erroneously, is a question upon Avhich no decision has been found. In one State a statute provides that a tele- phone company shall not be liable for errors in messages or communications, except where such messages or communi- cations are transmitted under contract directly by the agents 1 Southwestern Telegraph & Telephone Co. v. Dale, 27 S. W. Rep. 1059. TELEPHONE AND ELECTRIC LIGHT OPERATION. 589 or employees of the comjiany, nor shall it be liable for any special damages incurred by a failure of its instruments to work beyond a rebate of the rent charged for the time such instruments failed to work.^ As the telephone is held to be a species of telegraph, ^ probably any damages which could be shown to result from the negligence of the telephone company, whereby its instruments were not in working order, would give a cause of action to the parties injured thereby. § 702. Telephone Company receiving Written Messages for Transmission. — If, however, a telephone company undertakes the business of receiving messages, either in writing or orally, to be transmitted by its employees over the lines, and delivered to the person for whom they are intended, either in writing or orally, by the employees of the com- j)any, thus assimilating its mode of operations to those of an ordinary telegraph company, it incurs the same liability for the negligence of its employees as a telegraph company does.^ § 703. Method of Business for Jury. — The question of whether the company thus combines both methods of doing business, or whether in effect it does only a strict telephone business, is one of fact for the jury, unless there is no dis- pute as to the facts, and these arc of such a nature as to admit of but one inference.* Thus in a case where the facts were that a company was organized for the purpose of carry- ing on both telegraph and telephone business, and in some places carried on both of these businesses, and in others, where it paralleled the Western Union Telegraph Company's lines, did only a telephone business, and in one of the latter places a written message was delivered to it for trans- mission, which its local operator received and transmitted, 1 Ind. Ann. Stats. § 5526. ' Supra, §§ 13-17. 8 Southwestern Telegraph & Telephone Co. i'. Dale, 27 S. W. Rep. 1059 * Ibid. 590 THE LAW OF ELECTRICITY. but which was never delivered at its destination; the court held that it was a question for the jury whether the company was, in fact, in that place, holding itself out to the public as transacting a telegraph business, and whether its agent had authority to receive such messages for transmission. An important fact in this case was a notice hung in the office to the effect that the company furnished facilities for personal communications, and that the assistance of the operators in sending such messages was only as a matter of convenience to the senders, and without responsibility to the company. ^ § 704. other Rules of Telephone Operation. — Other rules affecting the operation of telephone companies have been already considered in discussing similar questions regarding the operation of telegraph companies. Such, for instance, are the rules regarding the furnishing of instruments to parties without discrimination and at usual rates. These matters were discussed at length in the chapter relating to discrimination. 2 With these exceptions, few cases have been found which bear upon the subject of the operation of telephone lines, nor does there seem to be a large field for development in the future, since the fact that the use of the lines is made by the individuals themselves will prevent any large number of cases against the company for negli- gence of its operators. Possibly cases may arise where the central office connects the wrong lines, and thus damage occurs to parties using the lines, or, as above indicated, the lack of repair of the instruments may lead to similar damage, in any of which cases probably the company will be held liable. § 705. Operation of Electric Light Lines. — The operation of electric light companies is governed by the same general principle which applies to telegraph companies, namely, that the company must not be negligent in the conduct of its 1 Southwestern Telegraph & Telephone Co. v. Dale, 27 S. W. Rep. 1059. 2 Ante, Chapter xiv. TELEPHONE AND ELECTRIC LIGHT OPERATION. 591 business.^ The application of this priiicijjlc is mainly found in cases which have been already discussed in considering the construction and maintenance of electric lines, to wit, cases where employees of the company or third parties have been injured by the lack of repair or other negligent condi- tion of the poles and lines of the company. Without repeat- ing the former discussion, to which the reader is referred, it is sufficient to say that the electric light company is obliged to use due care in the maintenance and operation of its lines and machinery, and is liable to third parties for its negli- gence in this respect, and also to its employees, under the usual restrictions as to the assumption of the risks appli- cable to the relations of master and servant.^ In addition to the cases discussed in the sections referred to, a few instances of cases where electric light companies have been held liable for negligence in operation are given in the following sections. § 706. Cutting out Lamp. — Tn a case in Colorado,^ the facts were that the plaintiff was in the employ of the electric light company as carpenter, his duties being to take care of the electric light poles. He was, however, ordered by the manager of the company, about half past three in the after- noon, to go to a certain pole, to take out the lamp and recon- nect the wires, and bring the lamp back. This was outside the usual scope of his duties, and he was unfamiliar with such matters. The evidence was that the current was generally turned on about half past four in the afternoon, or later; that the employee went straight to the place indicated, 1 Supra, §§ 235-259, 266-272. 2 Supra, §§ 235-259, 266-272; Colorado Electric Co. v. Lubbers, U Col. 505; Kraatz v. Brush Electric Light Co., 82 Mich. 457; lUiugsworth V. Boston Electric Light Co., 161 Mass. 583; Piedmont Electric Illumi- nating Co. r. Patteson, 84 Va. 717; Weiden v. Brusli Electric Light Co., 73 Mich. 268; Jenney Electric Co. v. Murphy, 115 Iiid. 506; Yates i-. Southwestern Brush Electric Light & Power Co., 40 La. An, 467. " Colorado Electric Co. v. Lubbers, 11 Col, 505. 592 THE LAW OF ELECTRICITY. \rhich would ordinarily take him about half an hour, and on his arrival proceeded to take out the lamp, and was injured by the electric current. The court held that there was sufficient evidence of negligence of the company to allow the case to go to the jury. §707. Trimming Lamp. — In a case in Michigan, 1 an employee of the electric light company was sent out to trim one of the lamps. It was shown that the circuit on which the lamp in question was hung was for a long distance sup- ported on the same poles with a day circuit, and at places the wires had sagged so as to cross, and also that the insu- lation was worn off in places on both sets of wires. The current was turned on the day circuit all day, and the plain- tiff contended that it was diverted from the day circuit to the night circuit by this sagging and crossing of the wires. The defendant contended that as there was no evidence of the crossing of the wires at any particular place at which the insulation was defective, the jury could not find that this crossing or sagging was the cause of the accident, but the court held that there was sufficient evidence to go to the jury. 2 § 708. Suitable Appliances. — The electric Company must also provide its employees with suitable appliances for repairing the lines if it orders them to attend to such duties. Thus, in a case in Yirginia the facts were that a lineman of the electric light company was killed while repairing a break in the circuit. The break was discovered about lighting-up time, and the employees were sent out from the station to search the circuit to see where the break was. Each man took a shunt cord, which is a device for cutting out a lamp while the repairs are being made, each end of the shunt cord being attached to the circuit wire on different sides of the lamp in question, so that the current is diverted 1 Kraatz v. Brush Electric Light Co., 82 Mich. 457. 2 Cf. Sullivan v. Boston & Albany R. R. Co., 156 Mass. 378. TELEPHONE AND ELECTRIC LIGHT OPERATION. 593 from the lamp over the shunt cord, the employee then inspecting the lamp to see that the connections are perfect. The shunt cord which the lineman in question took from the lighting station was defectively insulated, and the inference from the facts was that he must have grasped it in some way so as to bring himself into the circuit. The evidence showed that all the shunt cords were in the process of repair by the electricians at the office of the company, and that this one in particular had not been finished, but was left with the others, and was taken by the lineman in question without any objection on his part. The court held that this taking by the lineman of the defective shunt cord was contributory negligence, as the defect was patent, and set aside a verdict in behalf of his administratrix.^ § 709. Repair of Machinery. — Similarly an clectric light company is bound to keep its machinery and apparatus of all kinds in reasonable repair. Thus, where an electric light company had a large tower in a square upon which its electric light was placed, and inside the tower was an elevator on \Vhich the linemen pulled themselves up to repair the lamps, it was held that this elevator was part of the apparatus of the company, and must be kept in repair by it.2 The facts in this case were that the plnintifp was in the employ of the electric light company, and was sent out with the foreman to trim lamps. The lamp in question was in a large tower near the post-office corner in Chicago. To reach the lamp it was necessary to ascend in an elevator inside the tower. This elevator was pulled up by hand. The plain- tiff contended that the elevator cable had become frayed and rotten, and for that reason broke. He also contended that after the foreman had ordered him to ascend the tower, another lineman near by said that that lamp had been trimmed, whereupon the foreman said, " Go up anyway. " 1 Piedmont Electric Illuminating Co. v. Patteson, 84 Ya. 747. 2 Weiden v. Brush Electric Light Co., 73 Mich. 268. 88 594 THE LAW OP ELECTRICITY. The foreman testified, however, that when the lineman said the lamp was trimmed, the plaintiff said, "Better go any- way," and he, the foreman, acquiesced in this, saying, "Yes, better go anyway." The elevator car then ascended with the above-mentioned result. The court held that whether the plaintiff went up in the elevator at the express command of the foreman, or in the performance of his ordinary duties as lamp-trimmer, he was in the employ of the company, and in the performance of his duty, and the defect in the appa- ratus not being patent, the company was held liable for its negligence. § 710. Imperfect Apparatus. — In a case in Indiana the injury to an employee occurred as follows. Plaintiff was in the employ of an electric light company, and was directed by the foreman to repair some wires in the Hotel Jefferson. He took for this purpose a ladder belonging to the company, one side of which was broken off just above the top round. He placed this ladder against the wall, and proceeded to repair the wires in question. While so doing, the upper end of the ladder slipped under the top sill of a doorway and threw the plaintiff on the ground, injuring him. Plaintiff brought suit, and the court held that he could not recover ; that although the company furnished him with imperfect apparatus, yet the imperfection was such as was patent, and a person of ordinary intelligence should have either refused to use the apparatus, or should have used it in such a manner as would prevent injury from it.^ § 711. Tapping Electric Light Wires. — A method of surrep- titiously ol)taining electric light has l)een found to have been practised in some instances, by connecting wires to the lines of the company without authority, and thus tapping the current and using the current thus stolen for lighting or power purposes. To prevent this, in two States statutes have been passed providing that any person who taps or connects 1 Jenney Electric Co. v. Murphy, 115 Ind. 566. TELEPHONE AND ELECTRIC LIGHT OPERATION. 595 with any electrical apparatus, or with any electric light wire, for the purpose of obtaining an electric current for light, power, or heat, or for any other purpose whatever, without the knowledge and consent of the owner thereof, or the person or persons or corporation operating the a])paratus, appliances, pipes or wires, or who maliciously tampers with or injures any such apparatus, pipes, or wires, is guilty of a misdemeanor punishable by fine or imprisonment, ^ Simi- lar statutes relating to telegraph lines have been previously referred to, and in some instances are made applicable to other kinds of electric wires. ^ § 712. Letting Contract for Street Lighting. — In California, statutes require that "in all street work and in furnishing any supplies and materials for the same, when the expendi- ture required for the same exceeds $100, the work shall be done by contract, and shall be let to the most responsible Ijidder, after notice and publication in a newspaper of general circulation. " It has been held that the lighting of the streets by electricity is not "street work " within the meaning of "this statute, and that the city cannot refuse to pay for the electric lighting after having the benefit thereof, on the ground that the contract for this lighting was unau- thorized. The court says that "street work " in this statute has the ordinary meaning of making and repairing the streets.^ § 713. Power Station a Nuisance. — The operation of an electric light and power station, involving as it docs the continuous motion of steam engines and dynamos, with the constant jar and shock necessarily incident to such heavy machinery, and the smoke and soot accompanying the col- 1 Col. Stats. 1893, ch. 65; Mass. Stats. 1895. c. 330. 2 See note at end of Chapter ix. In Massachusetts, a statute provides that in case a person who takes electric light does not pay therefor, the company may cut off the light, just as a gas company may do. Acts 1894, c. 316. 8 Electric Light & Power Co. v. San Bernadino, 100 Cal. 351. 596 THE LAW OF ELECTRICITY. lection of the steam to operate them, is unquestionably, in many cases, as a matter of fact, a nuisance to the neighbor- hood. It seems, however, that it is a nuisance for which there is no legal redress, provided the business is carried on with as little annoyance to the neighborhood as improved machinery and methods can effect. Thus in a case in Alabama, one of the neighbors brought a bill in equity to enjoin an electric light and motor com- pany from operating its power station, complaining that the plant caused great annoyance from the smoke, soot, noise, and vibrations. The defendant put in evidence showing that the plant was of great public utility, that the machinery was of the best quality, that the officers and agents were skilful, and that the annoyances of the plant had been much lessened from time to time with the progress of the experi- ence in running the plant. The court held that the evidence did not prove more annoyance than is usually experienced by residents in cities, and that there was nothing for which redress could be obtained at law.i § 714. Insurance on Loss by Fire. — The obvious danger of fire in an electric lighting plant has been the cause of some question as to w^iether an ordinary fire policy covers this risk. It has been decided in a case in Massachusetts, ^ that when a fire in an electric lighting station causes a short circuit of the apparatus while it is in operation, and the effect of this short circuit is to disrupt the electric generat- ing machinery, and damage the building and other machinery by the fragments thereof, the damage is covered by a fire policy, the court saying, "The active, efficient cause that sets in motion a train of events which brings about a result without the intervention of force started and working actively from a new and independent source, is the direct and proximate cause of the damage." 1 English V. Progress El. Light & Motor Co., 95 Ala. 259. 2 Lynn Gas & Electric Co. i;. Meriden Fire Ins. Co., 158 Mass. 570. TELEPHONE AND ELECTRIC LIGUT OPElLVTlUN. 597 § 715. Electricity used in Capital Puuishment. — The use of electricity for executing the death penalty upon convicts is performed by means of a current of high tension and conse- quent fatality to life. The use of electricity for the execu- tion of criminals has been instituted by law in one State, New York, and the question of the constitutionality of a statute prescribing this mode of execution has been raised and thoroughly discussed and settled in the affirmative. The statute is as follows : " The punishment of death must, in every case, be inflicted by causing to pass through the body of tlxe convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict is dead." ^ This statute was discussed in People v. Durston.^ § 716. People V. Durston. — This was a case of habeas corpus against the warden of the state prison in New York for detaining in custody one Kcmmlcr, who had been con- victed of murder and sentenced to death by electricity. This sentence being the first of the kind in New York State, and being imposed under the then recent statute, this pro- ceeding was intended to test the legality of the sentence. The point specially involved was the constitutionality of the statute introducing punishment by electrocution, when con- sidered in reference to the clause of the constitution forbid- ding cruel and unusual punishments. The court goes thoroughly into the history of the clause in the constitution showing that it was originally little more than a declaration of the rights of the subject in England as against the king, and then proceeds to show that the introduction of electro- cution in New York State was the result of a thorough investigation by a commission into the most humane form of inflicting the death penalty, and that the result of these investigations was that the commission concluded that death 1 1 N. Y. Rev. Stat. Birdseye, page 821, § 15. 2 119 N. Y. 569. 598 THE LAW OF ELECTRICITY. by electricity was the most humane method of inflicting the death penalty, and that the decision of the legislature enact- ing the statute is conclusive that this method of execution is neither cruel nor unusual. The same point was discussed slightly in People v. Kemmler,i but the court in that case say that they do not discuss it thoroughly, as it was to be examined fully in People v. Durston just cited. § 717. Kemmier, in re. — The same convict attempted to bring the same question before the Supreme Court of the United States by a writ of error sued out from the Supreme Court of the United States to test the question of whether such a mode of execution was repugnant to the Constitution of the United States. The application for such a writ was denied, for the Supreme Court of the United States were of the opinion that it was apparent upon the face of the record that the issue of the writ could only result in the affirmance of the judgment, and held that the statute of New York, above quoted, ^ was not repugnant to the Constitution of the United States when applied to a convict who committed the crime for which he was convicted, after the act took effect. ^ 1 119 N. Y. 580. 2 Laws of 1888, c. 489. 8 In re Kemmier, 136 U. S. 436. Cf. ex parte Mirzau, 119 U. S. 584. ELECTRIC RxilLWAY OPERATION. 599 CHAPTER XXXII. ELECTRIC RAILWAY OPERATION. 718. General View. §744 719. Position of Electric Railway. 745 720. Duty to I'asseugers. 746 721. Due Care aud Contributory Negligence. 747. 722. A Person becomes a Passenger, 748. wlien. 749 723. Stopping for Passenger to get on or off. 750 724. Getting on or off Car in Motion 751 Contributory Negligence. 752 725. Evidence of Due Care. 753 726. Safe Landing Places. 754 727. Riding on Platform of Electric Car is not, as a Matter of Law, 755 Negligence. 756 728. Standing on Platform against 757 Rules. 758 729. Standing oxx Steps of Platform. 759 730. Poles too near the Track. 760 731. Chains on Cars. 732. Conductor assisting Passenger rr.i to alight. 762 733. Defective Insulation. 763. 734. Driving Car against Wagon. 73.5. Crossing Steam Railway. 764 736. Sudden Peril. 765 737. Contributory Negligence, Prox- 766 imate Cause, Burden of 767 Proof. 738. Question of Negligence for Court, when. 768 739. As to Travellers on Highways. 769. 740. No Exclusive Riglit to Street. 770 741. Paramount Right of Car. 771 742. Driving in Front of Car. 772 743. Watch by Motorman. 773 Ringing Gong. Ringing Gong Negligence, when. Stopjiiug Car on meeting i'right- enod Horse. Testing Horse. Collision with Horseback Rider. Reversing Current. Speed exceeding City Ordi- nance. Slipping Trolley Pole. Action for killing Dog. Headlight. Repairing Tracks, Warning to Travellers. Crossing Tracks. Same Subject (continued). Same Subject (continued). Opposite Decisions. Crossing in Front of Car. Crossing in Front of Car (con- timu'd). Same Subject (continued). Contributory Negligence. Contributory Negligence of Children. Negligence is for Jury generally. Imputed Negligence of Parents. Pennsylvania Cases. (Operation of Railway, as to Em- jdoyees. Injury while cleaning Electrical Apparatus. Rucking Electric Car. Dashboard. Pa.ssenger as Co-cniphivee. Screen for Motorman. Constitutionality of this Statute. § 718. General View. — The rules of law wliicli govern the operation of electric railways cannot be said as yet to be developed to their full extent, on account of the 600 THE LAW OP ELECTRICITY. comparatively short time since these railways have come into existence. There have, however, been many cases decided already on various points relating to such opera- tion, and these cases will be considered in the following sections. § 719. Position of Electric Railway. — As to operation, the legal position of the electric railway resembles in many particulars the horse railway, while in others it resembles the steam railway. The cases which have been decided as to the operation of electric railways may be divided into three classes : first, those relating to passengers on the cars ; second, those relating to travellers in the highway; third, those relating to employees of the company. § 720. Duty to Passengers. — The duty and liability of an electric railway company to its passengers is based upon its duty to use care in the operation of its cars, and it is said in several cases, that electric railway companies, like steam railway companies, in view of the danger of the vehicles operated by them, are obliged to use a very high degree of care, or, as it is sometimes put, the highest possible degree of care and skill, or all that human care, vigilance, and foresight reasonably can do, to prevent injury to the passen- gers, and is liable for the slightest negligence in operation.^ A street railway company, however, docs not insure the safety of its passengers as a common carrier does the safe transportation of property. It is bound to use such care as the dangers of its method of operation may require, and this care, in the case of electric cars, should be a high degree of care, since the ordinary care which a prudent man would use in operating so dangerous a method of transportation 1 Elliott V. Newport Street Railway Co., 28 Atl. Rep. 338; Buck r. People's Street Railway, Electric Light and Power Co., 46 Mo. App. 555; Shankenbery v. Metropolitan Street Railway Co., 46 Fed. Rep. 177; Pray v. Omaha Street Railway Co., 62 N. W. Rep. 447; Schepers v. Union Depot R. R. Co., 29 S. W. Rep. 712; Cohen v. West Chicago Street Railway Co., 60 Fed. Rep. 702. ELECTRIC RAILWAY OPERATION. GOl would be much greater than in case of such comparatively harmless vehicles as cars drawn by animals.^ § 721. Due Care and Contributory Negligence. — The Cases which involve accidents occurring by reason of the operation of electric railways almost invariably raise two questions. First, the alleged negligence of the railway company, and second, the alleged contributory negligence of the plaintiff. These two questions generally arise upon the same facts, and are then so intimately connected that it is difficult to separate them. In the following sections, therefore, it has been thought best to take up several frequently recurring kinds of accidents and discuss both of these questions together. § 722. A Person becomes a Passenger, when. — A difference exists between the time when a person becomes and ceases to be a passenger in a street railway company's car, and in that of a steam railway company. In the case of a steam railway car, since the company has control of the station and approaches, and can and must keep them in proper condition, it is justly held that a person intending to take passage upon or to leave a train has the relation and rights of a passenger in approaching or leaving the cars at a station. But a street railway company has no such control of the approaches to its cars, and a person is not a passenger before he has stepped upon a car or after he has stepped from it. 2 Therefore it has been held that where a person alighted from an electric car, and was struck immediately by another car going on the other track in the opposite direction, and killed, his administrator could not recover for this killing as if the deceased had been a passenger on the car.^ 1 Dallas Rapid Transit Railway Co. v. Dunlap, 26 S. W. Rep. 877. Compare sections on the care to be used by telegrajih companies, ante, § 382 et seq. 3 Creamer v. West End Street Railway Co., 156 Mass. 322; Schepers V. Union Depot Railway Co., 29 S. W. Rep. 712; Bigelow i'. West Knd Street Railway Co., 161 Mass. 393. 8 Creamer i'. West End Street Railway Co., siq)ra. 602 THE LAW OF ELECTRICITY. § 723. Stopping for Passenger to get on or off. — Street car companies, in the prosecution of their duties as common carriers of passengers, are obliged to stop a reasonable time to allow passengers to get on or off the cars, the question of a reasonable time being in every case for the jury.^ Therefore if a passenger attempts to get on or off a car, and is injured by the car starting suddenly, the question, so far as the railway company is concerned, is whether the car stopped sufficiently long for the passenger to get on or off under all the circumstances of the case.^ And even if the car has stopped a reasonable time, yet if the employee of the company managing the car sees, or ought in the exercise of reasonable care to have seen, that a passenger is still in the act of getting on or off, it is negligence on the part of the car company to start the car suddenly. ^ But if the car stops long enough for the passenger to get on or off, and he neglects to do so, and attempts to get on or off after the car has started, there is no negligence on the part of the com- pany if the conductor or motorman did not see him thus trying so to do, or might not have seen him by the exercise of reasonable observation.* § 724. Getting on or off Car in Motion Contributory Negli- } Demond v. Brooklyn City Railway Co., 8 Misc. Rep 610; Commer- fordt'. Atlantic Avenue Railway Co., 8 Misc. Rep. N. Y. 599; Jackson v. Grand Avenue Railway Co, 118 Mo. 199; Joliet Street Railway Co. V. Duggan, 45 111. App. 450; Buck v. People's Street Railway, Electric Light & Power Co., 46 Mo. App. 555; Cohen v. West Chicago Street Railway Co., 60 Fed. Rep. 698; Cooper v. St. Paul City Railway Co., 54 Minn. 379. 2 Jackson v. Grand Avenue Railway Co., 118 Mo. 199, 224; Cooper v. St. Paul City Railway Co., 54 Minn. 379; Cohen v. West Chicago Street Railway Co., 60 Fed. Rep. 698; Joliet Street Railway Co. v. Duggan, 45 111. App. 450. 8 Cohen v. West Chicago Street Railway Co., 60 Fed. Rep. 698; Joliet Street Railway Co. v. Duggan, 45 111. App. 450; Omaha Street Railway Co: V. Craig, 39 Neb. 601; Jackson v. Grand Avenue Railway Co., 118 Mo. 199. * Augusta Railway Co. v. Glover, 92 Ga. 132. ELECTRIC RAILWAY OPERATION. G03 gence. — Whether a ijassengcr is guilty of contriljutory negligence if he attempts to get on or off an electric car while it is in motion is a question of fact for the jury, and it is not like the case of boarding a steam car while in motion, which is held to be negligence j^er se. The ques- tion of whether the electric car was going at such a rate of speed as to make an attempt to get on or off' contributory negligence under all the circumstances of the case, must be decided by the jury,^ and the speed of the car must be proved, for the courts will not take judicial notice that electric cars move at a dangerously high speed. ^ The rule has been stated in a Pennsylvania court as follows : If the car was in motion, and was not in that con- dition of motion which would induce any reasonable man to get on, then a person who gets on and is injured in so doing cannot recover.^ If the evidence shows that getting on or off the car at such a time was clearly negligent, a verdict will be ordered for the defendant. Thus where a passenger upon an electric car, intending to stop at a cross street, got off while the car was slowing up, but before it actually stopped, and was killed by another car which was coining on the other track in the opposite direction, which latter car was going at a speed of fifteen or twenty miles an hour, and was lighted and crowded with people, and the gong was ringing, and passengers were shouting, singing, and making a good deal of noise, and the street was straight, and there was nothing except the passengers in front of the deceased as he sat in his seat to obstruct his view of the approaching car before he left his seat, and nothing after he rose to leave the car, it was held that the facts showed that he was negli- 1 Corlin v. West End Street Railway Co., 154 Mass. 198 ; Schepers v. Union Depot Railway Co., 29 S. W. Rep. 712. But see Joliet Street Railway Co. r. Duggan, 45 111. App. 451. 2 Corlin v. West End Street Railway Co., supra. 8 Walters v. Philadelphia Traction Co., 161 Pa. St. 36. 604 THE LAW OP ELECTRICITY. gent, and that the court should direct the jury to return a verdict for the defendant, since the undisputed evidence of the i)hiintiff showed a course of conduct in the deceased which was inconsistent with any theory of due care on his part. The court expressly stated in this case that it did not intend to hold as a matter of law that it is negligence for one to leave a street car while it is in motion, but that such an act is not evidence of due care, nor was there any evidence showing the exercise of due care in the testimony relating to the actions of the deceased. ^ It should be noted that in this State the burden of proof of due care is on the plaintiff. If a passenger, attempting to get off a street car, pulls the bell instead of signalling the conductor, he takes upon himself risks of the misunderstanding by the motorman. Thus, where a lady, wishing to alight from a car, pulled the bell for stopping, and as the car did not stop quickly enough, pulled it again, and then got off, it was held that the motor- man, mistaking the second ring for a signal to go ahead and starting the car suddenly, and thereby throwing the passen- ger to the ground and injuring her, did not constitute negligence on the part of the railway company, or at least was so far produced by the negligence of the passenger as to prevent her from recovering. ^ § 725. Evidence of Due Care. — In States where the burden of proof of due care is on the plaintiff, if the plaintiff shows in a general way his own conduct to have been in the usual line of careful conduct as to the boarding of the car, and also shows in a general way the conduct of the driver and the motion of the car at or before the time of the accident, he need not go into particulars if the evidence is such that the jury might properly find from his testimony that he was acting as a man of ordinary prudence would act in getting on the car. The absence of evidence of the particulars 1 Creamer v. West End Street Railway Co., 156 Mass. 320. 2 Sirk V. Marion Street Railway Co., 39 N. E. Rep. 421. ELECTRIC RAILWAY OPERATION. C05 of a plaintiff's conduct is not fatal to his recovery where the negligence of the defendant is shown, and where it appears in general that the plaintiff was in the line of his duty in a place where no particular act of precaution was required, and where it does not appear aflfirniatively that he was guilty of any special act of negligence. In such a case the jury may legally infer that he was ordinarily careful.^ So if the evi- dence shows that the plaintiff was getting on an electric car hy the front platform along with others, and the motor- man told him to get off and get on the rear platform, l)ut just as he was getting off the motorman started up the car suddenl}', and threw him to the ground, this is proof of negligence on the part of the company, and sufficient evi- dence of due care on the part of the plaintiff to allow the jury to render a verdict in his favor. ^ § 726. Safe Landing Places. — The question whether the place where the car stops for a passenger to alight is reason- ably safe, and whether the plaintiff is exercising due care in alighting there, is for the jury.^ The street railway company is obliged to uSe the streets for its landing places, and there- fore cannot insure against defects therein, and the passen- ger must look out and see if the place is safe. Therefore, ordinarily, there is no liability if, in the daytime, the car is stopped in a bad place for landing.* But if the car stops at night in a place known to the conductor or driver to be bad, and not so known to the passenger, the jury may find that 1 Corlin v. West End Street Railway Co., 154 Mass. 197; Cooper v. St. Paul City Railway Co., 5i Minn. 3S4; Buck v. People's Street Railway, Electric Liglit & Power Co., 46 Mo. App. 555. Cf. Creamer v. West End Street Railway Co., 156 Mass. 320. 2 Slaughter v. Metropolitan Street Railway Co., IIG Mo. 269. 8 Bigelow V. West End Street Railway Co., 161 Mass. 393. * Creamer i-. West End Street Railway Co., 156 Mass. 320; Bigelow V. West End Street Railway Co., 161 Mass. 393. But in Augusta Railway Co. V. Glover, 92 Ga. 132, it is said that the Eailway Co. must select good places for landing. 606 THE LAW OF ELECTRICITY. this is negligence in the company. ^ There are opposing decisions as to whether, if a car stops to let off a passenger just as another car is coming in the opposite direction, and thereby the passenger is hurt, this is negligence of the company. That it is not, is held in Creamer v. West End Street Railway Company ; ^ that it is, in Augusta Railway Company v. Glover. ^ § 727. Riding on Platform of Electric Car is not, as a Matter of Law, Negligence. — The question whether, under the cir- cumstances, the plaintiff was justified in riding on the plat- form or step of a car, or the running board of an open car, or whether he should have been inside the car, is a question of fact for the jury, which they can decide upon all the evi- dence in the case.* Riding on the platform of a steam car is held to be sufficient evidence per se of contributory negli- gence to prevent the plaintiff from recovering, but this rule does not apply to electric cars nor to horse cars, the reason for the distinction being that the steam car is propelled or driven by a great force, with a tremendous power of steam, and is, or may be, driven at a very high rate of speed ; and the danger attending the employment of great power, great forces, and moving at great speed, is greater than when the vehicle is propelled at a less speed. ^ If the car is so crowded that riding on the step or platform is a necessity, there can be no negligence imputed to the plaintiff, but 1 Richmond City Railway Co. v. Scott, 86 Va. 902. 2 1.56 ]\Iass. 320. In this case, however, the negligence of the passenger contributed. See § 724. 8 92 Ga. 132. * Beal V. Lowell & Dracut Street Railway Co., 157 Mass. 444; Marion Street Railway Co. v. Shaffer, 36 N. E. Rep. 801 ; Elliott v. Xewport Street Railway Co., 28 Atl. Rep. 338; Pray v. Omaha Street Railway Co., 62 N. W. Rep. 447; Fox v. Brooklyn City Railway Co., 7 Misc. Rep. N. Y. 285. 6 Cases supra; Beal v. Lowell & Dracut Street Railway Co., 157 Mass. 444. ELECTRIC RAILWAY OPERATION. 607 whether the car is so crowded is for the jury.^ Whether a man standing upon the platform of a street car propelled hy electricity when there is room inside, and seats, is to be held guilty of a want of due care, is a cpiestion for the jury, the question being, — Would a prudent man, a man using ordi- nary prudence and care, seeing a seat on the inside of a car where he might sit and l)e safe, still stand upon the front platform of a car driven by electricity ?2 It has also been held that the question of whether the railway company is negligent in allowing such crowds on a car as to render standing on platforms necessary, is for the jury.^ § 728. standing on Platform against Rules. — A street rail- way company has authority to make reasonable rules and regulations for the conduct of passengers on its cars, among which may be a rule that passengers shall not stand upon the platforms, and if passengers persist in breaking this rule when there is room enough for them inside, the conductor may compel them to leave the car. Thus, where several passengers boarded a street railway car, the seats of which were all occupied, l)ut which had sufficient standing-room inside, and the passengers so boarding refused to go inside, although requested several times so to do by the conductor, in accordance with the rules of the road, it was held that he was justified in stopping the car and telling them to leave it, and waiting until they did so, and that a passenger thus expelled from the car could not recover damages for this expulsion, as he had wantonly refused to obey the rules of the company.* § 7-0. Standing on Steps of Platform. — Tt is evidence of negligence for a passenger on a street railway car to stand 1 Pray v. Omaha Street Railway Co., 62 N. W. Rep. 418; Marion Street Railway Co. v. Shaffer, supra. 2 Beal V. Lowell & Dracut Street Railway Co., 157 Mass. 444. Cf. post, § 7:29. 8 Pray i'. Omaha Street Railway Co., 62 N. W. Rep. 447. ■* Fori Clark Street Railway Co. i'. Ebaugh, 49 111. App. 582. 608 THE LAW OP ELECTRICITY. on the steps of the platform of the car when there is room enoiis^h inside for him to stand there. ^ But it is a question of fact for the jury whether there was sufficient room inside, ^ as well as whether it is negligence for the company to allow such crowds to be on the car as render standing on the steps necessary ;3 and the person standing on the steps, since he is riding in a dangerous position, is bound to use extra care, to look out for the dangers peculiar to his position, such as injury from passing vehicles, and being thrown off by swaying and jolting of the car ; but he is not bound to look out for side posts of the railway supporting the trolley wire unless he knows they are dangerously near the track.* It is not negligence fer se for a passenger in a street railway car operated by electricity according to the "trolley" sys- tem, to rest her arm upon the sill of an open window.^ § 730. Poles too near the Track. — Accidents have some- times occurred by reason of the posts or poles which support the cross wires or brackets from which the trolley wire is suspended, being so near the track that persons standing on the running-board of open cars or on the platforms of closed cars hit the posts if they lean outward from the car. In a case of this sort the whole question is one of fact for the jury, as to whether the construction is faulty or not; and whether the person injured was in the exercise of due care or not.^ It has been held in such a case that in any event the city which granted the franchise of setting the poles in the street is not liable for the accident, on the ground that the city did not fix the position of the poles, and that the passenger on an electric car is in such case injured by the faulty construction of the railway system on which he is 1 Francisco v. Troy & L. R. R. Co., 78 Hun, 13. 2 Pray v. Omaha Street Railway Co., 62 N. W. Rep. 447. 8 Ibid. 4 Elliott V. Newport Street Railway Co., 28 Atl. Rep. 338. 6 Schneider v. New Orleans & C. R. R., 54 Fed. Rep. 466. 6 Elliott V. Newport Street Railway Co., 28 Atl. Rep. 338. ELECTRIC RAILWAY OPERATION. 609 travelling as much as if he were injured Ity some defect in the electric machinery of the car.^ Therefore it has been held, in an action against the street railway comjjany, that where a passenger was standing on the running-ljoard of an open car, and was hit by one of the side-posts supporting the overhead wire, said post being ten and one-half inches from the running-board, and there had been no warning from the conductor or objection to his riding there, the case might go to the jury on the question of negligence of the company and of the plaintiff, even though it was shown that the passenger might have stood between the scats of the car.^ In further proceedings in this case, the court held that it was not contributory negligence for the person on the foot- board not to look out for the side-posts unless he knew they were close to the track, or heard the conductor's warning. ^ § 731. Chains on Cars. — If a street railway company has chains on the sides of its open cars to prevent passengers getting on and off when the cars are full, and these chains are down while the car is stopped, on the side next to the other track of the railway company, this is an invitation from the railway company to passengers to alight on that side, and if a passenger so alighting is struck by a car coming on that track, it is a question for the jury as to the negligence of the company.* § 732. Conductor assisting Passenger to alight. — There is no duty upon the conductor of a car to assist i)assengers to alight unless some patent weakness or inability on their part exists, which he has noticed or should have noticed with reasonable care.^ 1 Kennedy v. Lansing, 99 Mich. 518. Cf. ante, § 237, and see chapter on construction. 2 Elliott V. Newport Street Railway Co., 28 Atl. Rep. 33S. Cf. ante, §§ 727, 729. 8 Elliott V. Newport Street Railway Co., R. I. 31 Atl. Rep. 694. 4 Gaffney v. Brooklyn City Railway Co., 25 N. Y. Suppl. 996. 6 Jarniy v. Duliith Street Railway Co., 55 Minn. 271. 39 610 THE LAW OF ELECTRICITY. § 733. Defective Insulation, Receiving Shock from Dash- board. — If a passenger on an electric car, standing on the front platform, receives an electric shock from the handle of the dashboard which he has hold of to steady himself, the company may be liable therefor, the question being one of negligence for the jury. As the company is bound to keep its machinery in repair, and as the charging of the dash- board with electricity would probably happen from a lack of repair of the electric apparatus, the electric condition of the dashboard raises aj^nma/afte case of negligence against the company. The question of whether the passenger is guilty of contributory negligence in standing on the platform depends upon the usual considerations relating to this subject. ^ § 734. Driving Car against "Wagon. — When the motorman of an electric car drove his car against a wagon standing on the track, and threw the plaintiff who was standing on the platform of the car, to the ground, thereby causing him injury, it was held that this was evidence of negligence of the street railway company for which the plaintiff might recover. ^ § 735. Crossing Steam Railway. — When a street car in crossing a steam railway track is run into by a steam train, a passenger in the street car who is injured thereby may sue both companies, if both are in fault, or either of them alone, as the facts may indicate. When an electric car is about to cross a steam track, the question whether the conductor of the car is acting with due care if he simply goes upon one of the tracks of the steam railway company to look for trains and comes back to his car, or whether he should go across both tracks, is a question for the jury.^ If the negli- gence of the motorman in crossing a steam railway track puts the car and its passengers in apparent peril of a 1 Peyser v. Goney Is. & B. Railroad Co., 30 N. Y. Snppl. 610 ; § 727. a Fox V. Brooklyn City Railway Co., 7 Misc. Rep. N. Y. 28.5. 8 Douglas V. Sioux City Street Railway Co., 58 N. W. Rep. 1070. ELECTRIC RAILWAY OPERATION. till collision, this may justify them in actions which result in their injury, and fur which the railway company is liable.^ Thus where a motorman, seeing the approach of an engine, but believing that his car could cross the track before the engine reached it, keept on his way and crossed successfully, but the plaintiff, being alarmed at the ajjparently unavoid- able collision, jumped from the car and received injuries thereby, it was held to be for the jury whether she could recover damages from the railway comjjauy, and that her conduct did not necessarily bar her right of action. ^ § 736. Sudden Peril. — The reason of this rule is that the jumping from the car or other imprudent action in such cases, is the result of a sudden peril to which the passenger is exposed through the negligence of the company, and which leaves him no time for reflection, but a necessity for acting without thought, and the defendant company cannot avail itself of this imprudence on his part since it is the result of the perilous situation in which he is placed by its own negligence.^ So where a person tried to get on a street car while it was stopping, and as the car was suddenly started while she was in the act of getting on, she impru- dently held on to the handle of the car, and by so doing was draffQ-ed alonor for some distance and received the injuries COO *• complained of, when, if she had released her hold upon the handle, she might have saved herself from injury, the court held that, since she was placed In the perilous situation by the negligence of the company, it could not rely upon this alleged carelessness on her part to defeat the action.* § 737. Contributory Negligence as Proximate Cause, Burden of Proof. — The contributory negligence of the plaintiff which will defeat his right of action must be such proximate negli- ^ Dallas Consolidated Tractiou Railway Co. v. Randolph, 27 S. W. Rep. 925. « Shankenbery i-. Metropolitan Street Railway Co., 40 Fed. Rep. 177 8 Ibid. ^ Joliet Street Railway Co. v. Duggau, 45 111. App. 450. 612 THE LAW OF ELECTRICITY. gence as combines with the negligence of the defendant to produce the injury, and not some remote negligence which enters into the case.^ Thus the negligence of a parent in permitting his six-years-old son to ride upon electric cars is too remote negligence of the parent, if negligence at all, to prevent him from recovering for the injuries of the son by the negligence of the company. ^ The question of whether the plaintiff, in cases involving negligence, has the burden of proving due care on his part, or whether the defendant must show contributory negligence, depends on the practice of the State in which the action is brought. In some States the plaintiff has the burden of showing due care.^ In any case, the jury may take all the facts into consideration, and say whether they show negligence.^ § 738. Question of Negligence for Cc^art, when. — The ques- tion of care and negligence, both as regards the defendant and the plaintiff, is ordinarily a question of fact which it is peculiarly in the province of the jury to settle.^ But some- times the question of negligence or care is so plain upon undisputed or ascertained facts that the court can, as a matter of law, say that the party in question was or was not in the exercise of due care or negligence. If, as a matter 1 Buck V. People's Street Railway, Electric Light & Power Co., 46 Mo. App. 555. 2 Buck V. People's Street Railway, Electric Light & Power Co., Ibid. Cf. as to imputed negligence, post, §§ 763-765. 8 Elliott V. Newport Street Railway Co., 28 Atl. Rep. 338; Cooper v. St. Paul City Railway Co., 54 Minn. 384. * Schepers v. Union Depot Railway Co., 29 S. W. Rep. 712. Cf. ante, § 725, and post, § 762. 5 Creamer v. West End Sh-eet Railway Co., 156 Mass. 322; Bigelow V. West End Street Railway Co., 161 Mass. 395; Hart v. West Side Street Railway Co., 86 Wise. 489 ; Buck v. People's Street Railway, Electric Light & Power Co., 46 Mo. App. 562; Elliott v. Newport Street Railway Co., 28 Atl. Rep. 338; Schepers v. Union Depot Railway Co., 29 S. W. Rep. 712 ; Joliet Street Railway Co. v. Duggan, 45 111. App. 451 ; Cooper r. St. Paul City Railway Co., 54 Minn. 384; AV alters v. Phila. Traction Co., 161 Pa. St. 36 ; Slaughter v. Metropolitan Street Railway Co., 116 Mo. 269. ELECTRIC RAILWAY OPERATION. 613 of common knowledge and experience, the court can say that upon the undisputed or ascertained facts, the plaintiff or defendant was not in the exercise of adequate care, and that the injury was in part attributable to such want of adequate care, the court may take the case from the jury and direct a verdict either for the plaintiff or defendant, as the facts show; and similarly, if the whole evidence introduced by either plaintiff or defendant has no tendency to show care on the part of the person introducing it, but on the contrary shows negligence, the court may direct the jury to return a verdict for the other party. ^ § 739. As to Travellers on Highways. — The rules which govern the operation of electric cars upon highways, as con- cerning the travellers thereon, are somewhat different from those regarding the passengers in the car. As to the latter, it is already seen,^ that the railway company is bound to use the highest degree of care, foresight, and vigilance to insure their safety. As to travellers on the highway, however, the railway comjmny is only obliged to use reasonable care in the operation of the cars,^ although the degree of care which is reasonable in the operation of an electric road is higher than the degree reasonable in operating a horse car line, because of the greater danger of serious accident in the case of the electric car,^ Perhaps the better way of putting the rule is to say that in each case the railway company is bound to use reasonable care, but that the care which is reasonable varies in the various cases. ^ The question of 1 Creamer v. West End Street Railway Co., 156 Mass. 322; Hart v. West Side Street Railway Co., 86 Wise. 489 ; Elliotts. Newport Street Railway Co., 28 Atl. Rep. 338. 2 Supra, § 720. 8 Gibbons v. Wilkesbarre, etc. Street Railway Co., 155 Pa. St. 270; Gilmore v. Federal Street & Pleasant Valley Pass. Railway Co., 153 Pa. St. 31; Ilickraan v. Union Depot Railroad Co., 47 Mo. App. 65. * Hickman v. Union Depot Railway Co., 47 Mo. App. 72. 6 San Antonio Street Railway Co. v. Mechler, 29 S. W. Rep. 202; Gib- bons V. Wilkesbarre, etc. Street Railway Co., 155 Pa. St. 282. 614 THE LAW OP ELECTRICITY. whether the plaintiff or defendant has been negligent is for the jury.i § 740. No Exclusive Right to Street. — The electric Car is a comparatively new vehicle in the streets, and the courts have not yet entirely settled the rules which govern the operation of such vehicles, or the actions of travellers in using the streets jointly with the electric cars. One point, at least, has been definitely settled, that the electric railway has no exclusive right to the use of that portion of the street occupied by its tracks. It follows, therefore, that a traveller along the highway is not a trespasser merely because he is on the track of the electric railway, and, conversely, the electric railway in operating its cars along a street is obliged to take reasonal)le care to prevent injury to persons using the street either on foot or in teams. ^ § 741. Paramount Right of Car. — Although, as has been seen, the public have a right to use the whole of the street for travel, and the fact that a portion of it is occupied by the tracks of a street railway company does not deprive them of this right, and they can exercise it in common with the street railways, yet there is this exception, that as the street railway car cannot leave its track to turn out, it has a para- mount right to use that portion of the streets covered by its tracks, but only in so far as that it is the duty of other teams or travellers to turn out in reasonable time to allow the electric cars to pass and avoid accident. ^ The motor- 1 See cases supra, note 3, p. 612, and ante, § 738. 2 Gibbons v. Wilkesbarre, etc. Street Railway Co., 155 Pa. St. 279; Gilmore v. Fedei-al Street & Pleasant Valley Pass, Railway Co., 153 Pa. St. 31; Hickman v. Union Depot Railroad Co., 47 Mo. App. 65; San Antonio Street Railway Co. v. Mechler, 30 S. W. Rep. 899 ; Montgomery V. Lansing City Electric Railway Co., 61 N. W. Rep. 543 ; Central Pass. Railway Co. v. Chatterson, 29 S. W. Rep. 18; Houston City Street Railway Co. v. Woodlock, 29 S. W. Rep. 817. 3 Quinn v. Railroad Co., 134 N. Y. 611 ; Glazebrook v. West End Street Railway Co., 160 Mass. 239 ; Hickman v. Union Depot Railway Co., 47 Mo. App. 72 ; Cincinnati Street Railway Co. v. Whitcomb, 66 Fed. Rep. ELECTRIC RAILWAY OPERATION. 015 man of the car, however, if he sees that the traveller is not turning out, must on his part, do what he can in the way of stopping the car to avoid collision.^ § 742. Driving in Front of Car. — When driving along a track in front of a car approaching from the rear, it may be negligence if the driver of the wagon does not look around at all to sec whether any car is approaching, and if the motorman is ringing his gong reasonably often, the action of the driver of the wagon in not paying any attention to the gong, and not looking around to see if a car is approaching, is such contributory negligence as will deprive him of the right to recover for injury to his wagon caused by collision 915; Houston City Railway Co. v. Woodlock, 29 S. W. Rep. t>17 ; Lake Roland Electric Railway Co. v. IMcKewen (Md.) 31 Atl. Rep. 797; Montgomery v. Lansinp City Electric Railway Co., 61 N. W. Rep. 543; Moore v. Kansas City & T. R. Tr. Railway, 29 S. AV. Rep. 9. 1 Glazebrook r. West End Street Railway Co., IGO^Iass. 239; Hickman V. Union Depot Railway Co., 47 Mo. App. 72 ; Montgomery v. Lansing City Electric Railway Co., 61 N. W. Rep. 513 ; Moore v. Kansas City & I. R. Tr. Railway, 29 S. W. Rep. 9; Central Pass. Railway Co. v. Chatterson, 29 S. W. Rep. IS." It is not, per se, negligence for a street procession to walk on an electric railway track in the street, even though a band isplavino- at the same time, rendering it impossible to hear the approach of a car from behind. If the motorman sees the procession walking ahead of him, and the band playing, it may be negligence for him not to slow down. Both questions of conduct are for the jury. Montgomery v. Lansing City Elec- tric Railway Co., 61 N. W. Rep. 543. So if a person is paving the street along the track, and standing on the track, the motorman, if he sees such person is not attending to the approach of the car, must stop. Houston City Railway Co. v. Woodlock, 29 S. W. Rep. 817. In an action against an electric railway company for the collision of an elec- tric car with the plaintiff's team, where the defence is that the plaintiff was negligent, because he was intoxicated, and the defendant intro- duces evidence that the conductor of the car saw the plaintiff drivinays in its tax under protest, and then secures a revision of the assessment and a resettlement of the account under a statute which provides for such revision, but not for any repayment of this tax, the company is entitled to interest from the time the payment was made, but cannot have the tax money repaid to it, but only charged on its account and applied in payment of future taxation. ^ If a telegraph com- pany appeals from an assessment laid upon it by the Board of Commissioners, and after the hearing gets a reduction of the assessment, the final decision on the hearing being rendered nearly a year after the time when the tax would have been payable if no appeal had been taken, still the tele- graph company must pay interest on the reduced amount of the tax from and after the time when the interest would have been payable if no appeal had been taken.* 1 Austen v. Electric Construction & Supply Co., 28 N. Y. Suppl. 81. 2 People, ex rel. Edison Electric Illuminating Co. of New York v. Barker, 139 X. Y. 55. 8 People ex rel. Edison Electric Illuminating Co. of New York v. Wem- ple, 133 N. Y. 617. * Western Union Telegraph Co. v. State, 64 N. H. 265. INDEX. A. ABBREVIATIONS IN TELEGRAMS, section as affecting damages 608 may render message unintelligible C08 may be interpreted by usage 608 affect the measure of damages 608 See Damagks, Measure of; CirnEii Messages. ABUTTING LANDOWNER, on highway, rights of 10- on railway", rights of 102, 108, 109, 123, 204, 205 See Laxdow.neu; Fuanchises; Eminent Domain; Municipal Authorities; Highways. ACCEPTANCE, of federal franchise by telegraph company 40, 50 See Franchise, Federal. of telegram for transmission 350-374 See Message by Telegraph, Acceptance of. ACCESS, RIGHT OF, to land from street 109 if taken may give damages 109 5ee Landowner; Abutting Lando\\'ner. ACCIDENTS, UNAVOIDABLE, liability of telegraph company for 400 is ni)t an insurer 400 liable only for negligence 400 See Atmospheric Disturbances; Reasonable Care; Negligence. ACCURACY OF TRANSMISSION OF TELEGRAMS, necessary 406 raises question of negligence 406 See Transmission of Telegrams; Reasonable Care; Negligence. ADDITIONAL BURDENS, on highway, when electric lines are 104-118 See Highways ; Eminent Domain. ADDRESS OF TELEGRAM, wrong or insufllcient "^-jO effect of, as contributory negligence 43u G86 INDEX. ADDRESS OF TELEGR X^l — coiUlnued. section may prevent sender from recovering damages 430 question is for the jury 430 See CoxTRiBUTORY Negligexce. ADDRESSEE OF TELEGRAM, %vheu affected by stipulations in telegraph blanks .... 499-508 See Special Contracts for Transmission of Telegrams. affected by time limit for presenting claim ... . . 555-557 if sender is his agent, limit binds him 555 must present claim within time if known 555 not bound if limit not on blank 555 except as notice of the rule is given 555 addressee not bound if message not delivered 556 even if sender is his agent 556 See Time Limit for Presenting Claims. ADDRESSEE MAY RECOVER DAMAGES FOR MENTAL SUFFERING, when 643-661 See Mental Suffering, Da.mages for. action by addressee for 643 grounds for allowing such action 644 cases refusing such damages 645 decisions to this effect in Federal Courts 645 similar decisions in State Courts 646 decisions based on old common-law rule 647 reasons for allowing such damages 648 recovery based on language of message 649, 650 cases on this point 651-653 Texas cases 653-660 effect on these cases of Statute of Limitations 661 amount of damages not provable 662 excessive damages not allowed 663 punitive damages, when allowed 664 ADMISSION, telegram as 672 sent by party to third person 672 message signed by sender or agent is original 672 if lost, one delivered to addressee is good evidence .... 672 See Evidence, Telegrams as. AGENCY OF TELEGRAPH COMPANY 467 urged to support action by addressee 467 not sound reasoning 467 telegraph company is mere forwarder of messages .... 467 See Negligence, Liability of Telegraph Company for. AGENT, local, of foreign telegraph companies 49 statute requiring, is not against interstate commerce .... 49 See Franchise, Federal. INDEX. 087 AGENT — continued. section sender of telefrram, of undisclosed principal . . . 454, 455, 456 See jS'egligenck, Reasonable Cake. contract lelation of telegraph company with addressee . . . 454 principal may sue for damages 454 telegraph company may use any defence good against agent . 454 addressee may sue on contract 455 is bound by contract stipulations 455 may sue when beneficiary of message 456 or when it is for his use 456, 457 presumption of appointing sender agent 456 especially if toll paid by addressee 456 AIR AND LIGHT, RIGHT OF, affected by line construction 109 owners of abutting land have right of 109 See Poles and Wires; Auuttikg Landowner; Eminent Domain. AMERICAN BELL TELEPHONE COMPANY, taxation of 848-850 attempted, in two States outside of State of incorporation . 848 coin|)any, parent, does business only in Massachusetts . • . 848 statement of method of doing business in Pennsylvania . . , 849 same in New York 850 See Taxation, Telephone. ANCHOR FOULING SUBMARINE LINES, in England, is question of negligence only 274 if both parties are in exercise of their rights 274 vessel fouling must use due care in clearing 274 must not cut, except in emergency 274 may anchor near, if no buoys or marks 274 See Sub.makine Lines. ANGUISH, :MENTAL, damages for 633-661 See Mental Suffering, Damages for. ANSWER, by telegraph, prepayment of 373 See Message, Acceptance of. APPURTENANCES, of electric station as covered by mechanics' lien 277 lien on real estate and appurtenances 277 covers, poles, and wires of electric light plant 277 whether dynamo and engine are realty 277 n. is question of intention 277 n. electric light wires in house, ownership of 277 n. telegraph poles and wires are realty 277 n. electric lamps are chattels 277 n. See Liens of Construction. 688 INDEX. ASSESSMENT, section not to be arbitrary 859 must be made on evidence, if any 859 See Taxation. ATMOSPHERIC DISTURBANCES, telegraph company not liable for delay caused by . . 401, 515, 528 if not to be foreseen 401 such as storms 401 or electrical disturbances 401 or fire, snow, or sleet 401 but if reasonably foreseeable, liable 401 as to using next best route 401 or giving notice of broken vpires 402 burden of proof of excuse 403 proof of error is /)rima/ac«e of negligence 403 company must show excuse 403 See Negligence; Reasonable Care. ATTORNEY, power of, may be transmitted by telegram 694 B. BAILEE FOR HIRE, telegraph company not 8> 9 is not an insurer 8 is liable for negligence 8 analogy in this respect is good 8 but telegraph company may not refuse messages 8 bailee for hire may refuse to act 8 BAILEE LOCATIO OPERIS FACIENDI, telegraph company not 9 true position of telegraph company is between common carrier and bailee for hire 10 BILLS OF EXCHANGE, by telegram 695 statutes as to 695 allow transmission of bills, notes, checks 695 if denied by maker, must be proved 695 message must be kept by telegraph company 695 in absence of statute, bank need not accept 695 BLANKS FOR TELEGRAMS, agreements in 491-508 See Special Contracts for Transmission; Negligence, Exemption from; Day Message Blank; Night Mes- sage Blank; Time Limit for presenting Claims; Cipher Messages. agreements are intended to vary liability 491 forms of blanks, day and night 491 n. INDEX. C89 BLANKS FOR TEJ.F.CRXMS —continued. bectiov analor^y of bills of lading 402 telegraph not a connnon carrier 492 conditions and stipulations, either contracts or regulations 493, 494, 495 if stipulations bind customers, without proof of assent . . . 495 knowledge, extrinsic, of regulations binds, when 490 assent presumed when blank is signed 497 if contract is completed by signing 498 affect addressee, when 499 See Si'ECiAL Contracts fou Transmission of Telegrams. BLASTING, liability for 237 in course of setting electric poles 237 is question of negligence 237 frightening horse, traveller may recover, when 237 See Construction and Maintenance. BOARD OF TRADE, telegraph reports of 294 refusal of board to allow 294 board is compelled to, by some courts 294 as a public board 294 other courts do not compel 294 See Discrimination, Unjust, by Telegraph Company. BRIDGE, right of telegraph over 50> 61 See Franchise. BRIDGES, not authorized by telegraph statutes, when 64 BROKEN TELEGRAPH WIRES, notice of 4^- as excuse for non-transmission of message 4o2 statutes require this in some States 402 See Atmospheric Disturbances. BUCKET-SHOPS, reports by telegraph to 293 company not obliged to furnish, when 293 if for gambling transactions 293 See Discrimination, Unjust. BUILDINGS, moving, disconnecting wires for -59 wires attached to, statutes against prescriptive rights in . . 8G-97 See Prescriptive Easement. BURDEN OF PROOF, as to Sunday messages 367 being messages of charity and necessity 3tw plaintiff must prove his case '"' if message shows it was sent on Sunday 307 44 690 INDEX. BURDEN OF VRO OF — co7itinued. section plaintiff must give evidence of necessity 367 how affected by statute 367 company must know of necessity 367 from language of message or otherwise 367 See Sunday Messages, Transmission of. of negligence in transmitting telegram 407 See Error. BUSINESS, PLACE OF, delivery of telegram at 415 or hotel t • • 415 may be left at office 415 or with hotel clerk 415 if addressee absent, reasonable effort to find him ■ 415 message nmst be sent to him 415 See Delivery of Telegrams. BUSINESS OF TELEGRAPH COMPANIES, how taxed 55, 826-829 must not tax interstate business 55 whether as license, or mileage, or otherwise 55 .See Taxation, Telegraph; Franchise, Federal. C. CAPITAL PUNISHMENT, by electricity 715-717 is by current of high tension 715 is used in New York 715 is held constitutional in that State 715 statute as to 715 discussed in People v. Durston 716 held constitutional 716 affirmed bv United States Supreme Court 717 "CARE OF,'' as address of telegram , 414 telegraph company may deliver to person in whose care message is sent 414 if he cannot be found, person addressed is to be looked for . . 414 cannot be delivered to person selected by former 414 See Delivery of Telegrams. CARE, REASONABLE. See RiiAsoNARLE Care; NEGLiGE>fCE; Contributory Negligence. CARRIER, COMMON, telegraph company not 7, 377-379 See Reasonable Care ; Negligence. CHARACTERISTICS, GENERAL, of telegraph 3-10 not a common carrier 7 INDEX. G91 CHARACTERTSTTCS, GENERAL — continued. section not a l)ailcc for hire >>, true position of 10, 11 of telephone lo-lS is species of telegraph 13-17 is public use 18 of electric light 19-22 of electric railway 22, 23 CHARITY AND NECESSITY, messages of, what are 359-3GG to be sent on Sunday 359 is question for court 359 to be decided on language of message 359 as interpreted by facts of case 359 necessity need not be absolute 300 but must be to prevent loss or harm 300 relating to sickness or death, one of charity ....... 301 messages to doctors on professional matters are 3Gl' messatres to lawyers may be 303 ordinary business messages are not 304 messages must be delivered on Sunday, if of charity .... 305 necessity may be caused by sender's delay 306 See Sunday Messages, Tuaxsmission of. CHECKS SENT BY TELEGRAM 095 See Bills of Exchange. CHILDREN," contributory negligence of, as defeating action 763-765 .See Contributory Negligence. CIPHER MESSAGES, damages in actions upon 588-604 such messages give no information 588 held to give only nominal damages 588, 589 Englisli rule to this effect 589 United States rule generally to same effect 590-593 Candee v. Western Union Telegraph Co 590, 591 Western Union Telegraph Co. v. Martin 592 Primrose v. Western Union Telegraph Co 593 in some States, snbstantial damages given 594-600 because of importance of securing correct transmission . . . 594 Alabama cases . . . • 59->, 590 Florida case 597, 598 Georgia case 599 Virginia case ^''^'^ fallacy of rule giving damages ^*^'l substantial damages not proximate results of cipher message . 6()1 interposition of translation necessary t^^^l clause in printed blank exempting from damages 002 is a reasonable stipulation "^- See Special Contracts. 692 INDEX. CIPHER MESSAGES — con/mueJ. section limits damages to nominal 602 Primrose v. AVesteru Union Telegraph Co 603, 604 See Damages, Measuue of. CITY STREETS AND COUNTRY ROADS, difference between 109, 117, 126 See Telegraph; Telephone; Electric Light; Electric Railway. as to additional servitude of electric railway 109 differences examined •• . 109 as to telegraph and telephone posts 117 in city streets, may not be additional servitude 117 but may in country roads 117 as to electric light wires 126 See Poles and Wires ; Eminent Domain. CLAIMS, limit of time for presenting 538-564 See Time, Limit of, for Presenting Claim against Telegraph Company. COLLATERAL DAMAGES 578-581 or indirect, may be recovered, when 578 depends on information of telegraph company 578 as to facts from which damages flow 578, 579 through breach of collateral contract, when 580, 581 See Damages, Measure of. o COMMERCE, INTERSTATE, See Interstate Commerce, COMMON CARRIER, telegraph company not . 7, 377-379 See Reasonable Care; Negligence. COMPENSATION, just, under eminent domain 102 See Eminent Domain. must be provided, or statute is unconstitutional 102 See Constitutionality. equity will enjoin construction 102 See Equity. cases where no additional servitude 102 no compensation then necessary 102 time of payment is important 102 must be before construction 102 landowner not obliged to wait for judgment 102 CONDEMNATION OF RIGHT OF WAY. See Eminent Domain. INDEX. C93 CONDITIONS PRECEDENT TO CONSTRLXTION, section of teleW-L>G5 conditions precedent to U" telegraph must begin in ninety days in Colorado rj8 must not begin till three-fourths stuck is subscribed .... 108 See Poles and Wiues. rules as to construction and maintenance 234 especially as to use of highways by poles and wires .... 234 principal rule is the use of due care 234 varies with risk 234 great care required where great risk 234 is question for jury generally 234 English rule as to electric wires 234 applies doctrine of Fletcher v. Rylands 234 sustained in case of an electric railway 234 liability to travellers for improper condition and maintenance . . 230 is a question of due care -'J" in selection of poles and wires and other apparatus .... 23G and keeping in repair 236 Uability for felling poles 236 liability for blasting 237 liability for leaving poles in streets while building 237 liability for leaving rails in streets while building 237 statutes as to the methods of construction 239-246 Alabama -'^^ Delaware 240 Massachusetts 241, 242, 243 Ohio 244 \ ermont - ^"^ \\ isconsin -^^ liability for falling or sagging wires 247-254 for loose -wires during construction 247 is question of reasonable care 24S may give traveller right of action for damages 248 for either mechanical or electrical contact 248 sacaint: wire evidence of negligence 249 contributory negligence of traveller 249, 250, '-07 See COXTRIBUTOUY NEGLIGENCE. •wire broken by storm 250 picking up wire on highway 251 action against city or company 251 crossinsr of wires in streets 251 falling of overhead wires of street railway 252 care of them must be great 252 falling of wire by fire 253 question of delay in removing 254 wires on roofs, accidents from 254 wires owned by city -^^ one company not responsible for another's wires 25o high tension wires on roofs, rules as to 250 696 INDEX. COXSTRUCTTON AND MAINTENANCE — co^/mwefZ. section insulation of 256 necessary approach to 256 dead ^Yires, removal of 257 occupation of fixtures 258 of one company by another 258 removal of 258 conversion of 258 CONSTRUCTION, AS AFFECTING ABUTTING LAND- OWNER 204-212 See Tkees; Landowner. CONSTRUCTION OF POLE LINES 198-233 /i>'ee Conditions precedent; Landowner; Trees; Poles, Nuisances, when; Franchises, Conflicting; Poles; Wires. construction as aifected by franchise 199 liability to travellers for accidents 200 liability of town for 201 poles set without authority, nuisances 202 removal by town authoiities 203 removal of tracks for sewer 208 injury to trees in construction 209,210,211 conflicting franchises for same street 212-233 telephone v. electric railway 213-222 telegraph v. electric light 223 telephone r. electric light 224 electric light v. electric light 225 removal of gas posts 226 electric railway crossing steam railroad tracks 227-232 CONTRACT BY TELEGRAM GSl-689 contract is completed when telegram of acceptance is stated, 681-689 retraction must reach offeree before this 681 offer may be limited in time 682 offer may require acceptance to reach offerer 683 before contract is complete 683 mistake in transmitting offer, effect of 684-688 on sender of message in England, none 684 nor on telegraph company 684 in United States, rule is not settled 685 cases holding sender bound by error 686, 687 agent instructed by telegram, liability of 688 signing " by telegraphic authority " not bound 688 contract by telegraph, when made 689 CONTRACT, LIABILITY IN, OF TELEGRAPH COMPANY FOR NEGLIGENCE 451-458 See Negligp:nce, Liability of Telegraph Company for; Special Contracts for Transmission. INDEX. 097 CONTRACT, LIABILITY IN, ETC. - continued. section implied contract with sender 452 express contract with sender 45;i agency of sender, for others 45i ad(h-essce as principal of sender 455 addressee as beneficiary of message 456, 457 no liability in tort, if special contract 458 CONTRACT OF TRANSMISSION OF TELEGRAM VOID. wlieu 357 if made on Sunday 357 for message not of charity or necessity 357 See SuxDAY Messages. CONTRIBUTORY NEGLIGENCE, question of, is for court, when . . . 411, 429, 430, 738, 762, 764 generally for jury 411, 429, 430, 73S, 762, 764 of traveller injured by faulty construction or maintenance of pole lines • 234, 249-251 by fallen or sagging wire 249 as by trying to drive over it 249 or picking up a live wire 250 raises question of knowledge of danger 251 See Construction and JNIaintenance. of employee injured by faulty maintenance 272 in sending telegrams 429-435 definition of 429 is for jury, when 429 on wrong or insufficient address 430 is for jury 430 when other information may cause 431 acting on telegram without repetition, not 431 interpretation of ambiguous telegram may be 431 not sending for physician may be 432 failure of plaintiff to act promptly may be 432 duplicate message twice delivered, as to 433 instances of 434 antecedent negligence not contributory 435 rule closely connected with duty of lessening damages . . . 435 in connection with electric railways 721-737 See Electuic Raii-way, Operation of. as to passengers, in getting on or off electric car, in motion 723-725 riding on platform, negligence when 727, 733, 734 riding on steps, or running board 729 not looking for poles 730 in getting out of car on apparent danger 735, 736 must be proximate cause to defeat action 737 as to travellers, driviuLT in front of car 742 driving timid horse near car 747 G98 INDEX. CONTRIBUTORY NEGLIGENCE — conimuec?. section crossing tracks in front of car 755-701 rule as to stopping, looliing, and listening 755 must look and listen, in Pennsylvania 756, 757 not necessarily so in other States 758 crossing in front of car may be prudent 759-761 of children, when child is sui Juris, defeats action 763 if not sid Juris, imputed negligence of parents may . . . 763 question of sui Juris generally for jury ........ 764 even if sui Juris, not held to mature prudence 764 imputed negligence for parents to allow young child in streets 765 See Electric Railway, Operation of. COPY OF TELEGRAM 697 See Writings, Transmission of, by Telegraph. CORPORATION, public distinguished from municipal 24 right of way for telegraph over land of 62 See Franchise. incorporation of 26-37 See Incorporation. tax of telegraph 839 See Taxation, Telegraph. COUNTRY ROADS AND CITY STREETS, difference between 109, 117, 128 .See City Streets and Country Roads. COURT decides reasonable time and negligence, when 409 See Negligence. of equity. See Equity. CRIMINAL MESSAGES not to be received by telegraph company 352 See Messages by Telegraph, acceptance of. nor immoral messages 352 nor intended to aid criminals 352 statutes against it in several States 352 telegraph company need not inquire into message 352 if the language is decent 352 and company has no information of further designs .... 352 CUSTOM, as interpreting alibreviations in telegrams 608 See Abbreviations; Cipher Messages. INDEX. 609 D. DAMAGES, :MEASURE OF, sectiov iu telegraph cases 5G5-0G4 same rules as in cases of common carriers 5fj.'i leading case is Iladley v. Baxeudale 506, 507 two branches of rule 5GS, 509 direct natural and proximate damages 568 indirect or consequential damages 508 damages nmst not be uncertain 570 plaintiff must show amount of damages 570 cannot claim speculative or contingent damages 570 must be causal relation between negligence and damnges . 571, 572 must be natural and probable result of negligence . . . 572, 574 must not be remote 572 natural damages result plainly from negligence 574 telegraph company is bound to presume such results .... 574 is held to reasonable foresight 574 instances of direct damages 575, 576, 577 indirect or collateral damages 578 may be recovered though not apparent 578 depends on information of telegraph company 578, 586 contract of transmission made with reference to information . 579 damages from breach of collateral contract 580 recoverable only where telegraph company knew of collateral contract 580, 581 damages claimed must be certain 582 iu amount, as to price, etc. . . . «y 582 must not arise from illegal contract 583, 585, 586 information of telegraph company as affecting damages . . . 586 information from language of message 587 difference in language 587 cipher messages 588-604 See CiriiKR Messages. messages giving limited information 605 as wlien containing abbreviations C05 or technical terms ^^^ degree of information not material _ 005 if message shows commercial importance • 605, 606 but collateral damages must proceed from further information 605, 606 direct damages may be claimed, when 006 on order to buy goods delayed 606, 607 abbreviations may be unintelligible f"*)^ unless commonly known "*-'^ then give sufficient information 608 if they show commercial importance 60b sources of information may be wrong 609 from the language of message ^'"'•^ or from express information from sender 010 700 INDEX. DAMAGES, MEASURE OF — continued. section or from other telegrams 611 sent from the same office 611 or from usage of commerce 612 or from general sources 613 gained by operator locally 613 classes of damages 61-4 loss of debts by delay of telegrams 615 gives right to recover debt of telegraph company 615 if language of message shows the probability of loss .... 615 plaintiff must show that debt was good 615 instances of such cases 615 incurring travelling expenses 616 may be recovered from telegraph company 616 if caused by delay or error in message 616 and message showed probability of such loss. . . . 616, 617, 618 loss of offered employment may give damages ; 619 if telegram showed the transaction 619 and the amount of loss is certain 619 loss on buying and selling goods 620 question is i£ actual loss is suffered 620 no damages for lost opportunities 620 damages in case of shipment of goods for sale 621 or to buy goods and message is for smaller quantity .... 621 ■when message is simply to buy and no purchase made . . . 622 expected profits from resale not allowed 622 effect of mistake in offer to sell 622 goods sent to wrong places 623 furnishing market reports 624 damages when such reports are incorrect 624 loss of sale by delayed message 625 loss of purchase of land 625 loss must be definite 626 no damages when loss is speculative 627 nor for expected profits of business 628 nor for prizes expected 628 nor for expected profits on resale 629 this rule based on rule between vendor and purchaser . . . 629 but may recover difference between contract price and market price 629 See Profits ; Money ; Mental Sufferings. DAY MESSAGE BLANK, for telegi-ams 517-525 exemption from negligence contained therein 517 held valid in England 517 because of repetition at increased price 517 held valid in some of the United States 518-524 for similar reasons 518 protects telegraph company from ruinous loss 519 INDEX. 701 DAY MESSAGE BL A'SK — conthiuoJ. bectjon applies to either common carriers or bailees 521 public companies required to exercise due care 522 but may prescribe reasonable rules of business 522 exemption clause gives customer option of price 523 affords a reasonable modification of company's liability . . . 521 such exemption does not cover delay in transmission .... 525 nor negligence or error in delivering 525 difference of opinion as to sending to wrong place 520 exemption does not apply to total failure to transmit .... 527 as to failure caused by atmospheric causes 52y See Atmospiiekic Disturbances. exemption may be waived by telegraph company 529 or by operator, though rules of company forbid 529 in many States, exemption held invalid . 530 as matter of public policy 530 and on account of dilfereuce in station of parties .... 530 See Night Message Blank; Negligence, Exemption from, BY Special Contract. DEAD AVIKES TO BE REMOVED 257 accidents caused by failure render company liable .... 257 See Construction and Maintenance. DEATH, message as to transmission of, is work of charity 361 and may be done ou Sunday 361 See Sunday Messages. DEATH SENTENCE EXECUTED BY ELECTRICITY . 715-717 See Capital Punishment by Electricity. DEBTS, LOSS OF, damages for 615 occasioned by negligence in transmission of telegram . . . . 615 gives action for 615 but only if action directed by telegram would have recovered the amount . 615 plaintiff must show this 615 S9e Damages, ^Measure of. DEEDS, transmitted by telegram 695 must be recorded when required 605 notarial certificate may be sent by telegram 695 DELAY IN TRANSMITTING TELEGRAM 408-441 if unreasonable, is wrong 40S includes total failure to transmit 40S raises question of reasonable delay 409 which is for jury, when 409 and when for court "If"^ on undisputed facts 4it9 or when settled by verdict "109 702 INDEX. DELAY IN TRANSMITTING TELEGUX'^l — continued. section and only one inference is possible 409 \yliat is unreasonable delay 409 seven days; several hours 409 burden of proof on plaintiff 409 excuse is for telegraph company 409 proof of total failure to transmit 409 excuse for delay 410 electrical and atmospheric disturbances 410 See Atmosphekic Disturbances. ■wires used by railway company 410 notice of this to sender 410 from closing of office 410 caused by closed office 421 eitlier mediate or terminal 421 Indiana case 4- telegiaph company may establish office hours 422 delay caused thereby is excusable 422 delay in transmission or delivering, not covered by special exemptions 525-528 nor by repetition clause in blanks 525 since repetition would not amend it 525 See Delivery of Telegrams; Negligence, Exemption FROM. DELEGATION OF POWERS, 146 by municipalities 147 cannot be, if discretionary 147 and cannot be exercised by committees 147 See Municipal Authorities, Grants by. DELIVERY OF TELEGRAMS 404-428 See Delay in Transmitting Telegrams. diligence requisite • 411 to deliver to right person 411 and at right place ^11 and this question is for jury, when 411 ■when for court ^ 411 to person addressed 41- must be sought, if not found at address 412 address at street and number 412 telegram may not be left at 41- nor allowed to remain at office till called for 412 evidence of attempted delivery 413 as by notification by mail 413 evidence of notoriety of addressee 413 or difficulties as to place 413 dehvery to " care of " 4U may be left with such person 41 -4 even if it fails to reach addressee 414 delivery at hotel, or to agent 415 INDEX. 703 DELIVERY OF TKLEGV.X'SIS — continued. section effort to Ihid the person addressed 415 limited free delivery 41G See Constitutionality. delay in 408 change of residence as cause 418 question is for the jury 418 mailing postal card notice of telegram 418 See Delay in Delivering Telegrams. should be in writing 419 generally not sufficient by telephone 420 in absence of special agreement 420 on Sunday, not lawful except messages of charity and necessity 385 See Sunday Messages. delay in delivery not covered by special exemptions in blanks . 525 See Negligence, Exemption fi^om. if delay is caused by sending to wrong office, ditference of opinion 526 if caused by atmospheric disturbances is excused, when . . . 528 See Atmosi'Iieuic Disturbances; also Delay in Delivery OF Telegrams. DELIVERY, FREE, LIMITED, of telegrams 41G, 417 sometimes established by regulation 41G such regulation is reasonable 416 sender bound to know of, when 416 different rule in different States 416 effect of stipulation in company's blank 41G stipulation waived by agreeing to deliver 416 or receiving extra toll 416 no excuse for total failure to transmit 416 statutes as to 417 California Minnesota, Ohio, Connecticut, Mississippi, Virginia Georgia, no force outside of States 417 do not apply to transients, when 417 is no part of plaintiff's case 417 DESPATCH, TELEGRAPHIC, in evidence, 433 may be required by subpoena 43S but subpcena must identify distinctly 438 between two dates not enough 438 if original lost, operator may give contents 438 See Evidence, Telegrams to be Produced in. DILIGENCE IN DELIVERY OF TELECiRAM 411 See Delivery of Telegram, Reasonable Care; Negligence. 70-4 INDEX. SECTION DIRECT DAMAGES 574-577 for negligence in transmission of telegrams 574 if natural and proximate, may be recovered 574 court can say whether damages are direct 574 instances of direct damages 575-577 See Damages, Measure of. DISCRIMINATION, unjust, by telegraph company, prohibition of 285-319 obligation of telegraph company to serve all alike 285 statutory reinforcement of 285 Arkansas, Massachusetts, Pennsylvania, Colorado, Michigan, Tennessee, Connecticut, Mississippi, Vermont, Georgia, Missouri, Virginia, Illinois, Nebraska, Washington. Indiana, New Hampshire, Kentucky, New York, Maryland, Ohio, obligation to receive messages from other lines 287 as to parallel or competing lines 288, 289 may require reasonable regulations as to receiving messages . 290 such as dating messages by other lines 290 but not a power of attorney to forward 290 obligation to serve public limited 291 only in kinds of business engaged in 291, 292 may or may not furnish stock reports 291, 292 if to any, must furnish to all alike 292 need not furnish for gambling operations 293 as to Board of Trade reports 294 and stock exchange reports 294 by telephone company must furnish telephones to all alike 292 even to telegraph companies besides the Western Union Tele- graph Co 295 statutes as to 297-306 Arkansas 296 Connecticut 297 Indiana 298 Kentucky 299 Maine 301 ^laryland 301 ]\Iassachusets 302 ^Michigan 303 Tennessee 304 Vermont 305 Wisconsin 306 refusal of telephones to telegraph companies 307 not justified if furnished to any 307, 308-313 and letters patent are no defence 308-313 INDEX. 705 DISCRIMINATION — continued. section nor business of parent company 307, 308-31 3 mandamus will lie to compel compliance 310,311 exception in Connecticut ^JlJ changed by statute 313 refusal of telephones to indinduals 314 statutory prices 315 evasions by telephone companies 31G-318 furnishing part of outfit- 316, 317 collecting from non-subscribers 317 establishing ticket system 317 refusing to furnish directory 318 by electric light companies 319 statute compelling company to furnish light 319 by electric railways 319 DIVULGING TELEGRAMS, penalty as to 436 See Secrkcy of Telegrams. DOCTORS, TELEGRAMS TO, are works of charity 362 as such may be sent on Sunday 362 See Sunday Messages. DOMAIN, EMINENT, See Eminent Domain. DRAWBRIDGE 61 See Bridge. DUE BILLS TRANSMITTED BY TELEGRAM 695 See Bills of ExcnANOE. DUE CARE. See Reasonable Care ; Negligence; Electric Railway, Operation of. DYNAMO, is realty, when 277 n. E. EASEMENT, only acquired by condemnation, in Illinois 120 is taking of private property 103 -^'ee Eminent Domain. for telegraph line 47 under Act of Congress 47 See Franchise, Federal. prescriptive statutes against 86-97 See Presciptive Easements. ELECTRICAL DISTURBANCES CAUSING TELEGRAPHIC ERROR 401 if not preventable by due care, excuse error 401 See Atmospheric Disturbances. 45 706 INDEX. ELECTRICITY, section in capital puuishraent 715-717 See Capital Punishment by Electricity. right to use, as motive power 182 iu street railways 182 must be by grant of legislature 182 and of municipal authorities 182 See Electkic Railway; Right to use Electricity as Motor. right to use, inferred in grant 184, 185 See Electkic Railway; Right to use Electricity. right to use for lighting streets 181 is inferred in municipal authorities 181 as part of police power 181 as to owning plants, see Municipal Ownership. is inferred in some States , . . . 181 not in others ISl ELECTRIC COMPANIES, incorporation of 26-37 See Incorporation of Electric Companies. ELECTRIC LIGHT, a public use 19, 20, 101 ELECTRIC LIGHT COMPANY, legal position of 19-21 carrying on, is a public business 19 is often owned by municipal authorities 19 See Municipal Ownership. is a public use • 20 incorporation of 2^, -9, 3o See Incorporation of Electric Companies. whether under manufacturing company law 29 discrimination by ^19 forbidden by statute -^19 unless in case of nonpayment of rental 319 See Discrimination. taxation of 815, 854-860 See Taxation, Electric Light. whether considered manufacturing companies 854 and so exempt 854 not so held in Pennsylvania 854 but are so held in New York 855 till taxed by recent statute 855 tax as regulated by dividend 856 ELECTRIC LIGHT FRANCHISE, to set poles in highway 83, 181 See also, Franchise; Electric Light; Electricity, Right to use for Lighting Streets; Poles; Wires. INDEX. 707 ELECTRIC LIGHT FRA^CIUSE — continued. section as to consent of municipal authorities, see Municipal AuTnou- ITIES, GltANTS BY. is appurtenant to power to light streets 8:5 and to regulate streets and highways -Sli is part of municipal government 83 statutes as to, in Indiana 83 Mis.sissippi 83 North Carolina 83 statutes as to 132-142 V. electric light 225 See Franchise, Conflicting. in occupying same street 225 prior occupation has precedence -25 if legal and duly authorized 225 other company will be restrained by injunction 225 V. telegraph 48, 223 See Franchise, Federal. if electric light is occupying street, telegraph cannot displace . 48 nor vice versa 48 prior occupancy determines right if lawful 223 tlie later cannot disturb the earlier 223 See Fkancuisk, Conflicting. V. telephone . • 224 See Franchise, Conflicting. in conflicting occupation of the same street 224 priority of time determitit-s 224 equity will enjoin the later occupant 224 ELECTRIC LIGHT OPERATION 705-710 governed by rules of reasonable care 7U5 company is liable for negligence 705 accident in cutting out lamp 70G accident in trimming lamp . • 7'i7 necessity of supplying suitable tools 703 of keeping machinery in repair 70f) use of imperfect apparatus 710 See Electric Light Plant, Operation of. necessity of keeping poles in repair . 2G9 accidents to employees may render liable 2G9 See Employees, Action for Negligence by. ELECTRIC LIGHT PLANT, municipal ownership of 21, 18S-197 is part of municipal improvements 21 is in power of municipal authorities 21 statutes as to -^ See McNiciPAL Ownership. part of police powers ^^^ Massachusetts decisions as to . . , 1^^ 708 INDEX. ELECTRIC LIGHT FLA'ST —continued. section implied power of 190 coimnercial lighting by municipalities 191 purchase of existing plant 192 statutes as to 193-197 interpretation of Massachusetts statutes 192 operation of 705-714 must be conducted with due care '705 machinery and apparatus kept in good repair 705 accident while cutting out lamp 706 accident while trimming lamp 707 necessity for suitable appliances 708 necessity for repair of machinery 709 use of imperfect apparatus 710 tapping electric wires 711 contracts for street lighting 712 operation of power station, a nuisance 713 loss of insurance by fire 714 ELECTRIC LIGHT POLES, additional servitude on highway 126 not if set by municipal authorities 126 but, if set by corporation, are, when 126 if for commercial use, are 126 distinction as to city streets and country roads 126 See Eminent Domain; Franchise; Poles; Wires. ELECTRIC LIGHT WIRES, tapping 711 See Electric Light Plant, Operation of; Secrecy of Telegrams. when adjacent to telegraph wires, rights of 48 See Electric Light Franchise v. Telegraph ; Franchise, Conflicting ; Franchise, Federal. right to set poles and string wires on highways . . . .60, 83, 181 See Electric Light Franchise. prescriptive rights, statutes against 86-97 See Prescriptive Easements, Statutes against. ELECTRIC RAILWAY, a public use ''-' ^^'■ differs from horse street railway 23 differs from steam railroad 23 as affecting use of land 206 may give landowner right of damage 286 for special injury -Oo thoucrh duly authorized by law 206 by blocking street -^^ or digging down to grade 206 or diverting water on to land 207 See Landowner. INDEX. 709 ELECTRIC RAIL^Y AY — continued. sectiow removal of tracks for sewer 208 See Landownku; Treks; Construction and Maixtekance; Polks; Wires; Franchise. crossing steam railway 227 See Franchise, Conflicting. different from steam or horse railway 23 discrimination of 320 franchise of, to set poles in highway 60, 84 See also Franchise, Electric Railway. is under street railway statutes 84 special statutes in a few States 84 Alabama 84 California 84 Michigan 84 See Municipal Authorities, Grants by. incorporation of 29 See Incorporation of Electric CoiMpaniks, as street railway 29 not under steam railway law 29 Iowa statute as to incorporation 29 requires consent of municipal authorities 143 statutes against prescriptive easements by 86-97 See Prescriptive Easements. condemnation of one railway by another 127 See Eminent Domain. franchise v. telephone franchise 213-222 See Franchise; Conflicting. if both occupy same street, telephone is subordinate .... 213 Hudson River Telephone Co. v. Watervleit Turnpike & Rv. Co. 214- 216 Pennsylvania case 217 Ohio case 218 Kentucky case 219, 220 English case 221 guard wires 222 no additional servitude on highway 102, 107, 108, 109 difference between city streets and country roads 109 See Eminent Domain. kind of electric railway which is no additional servitude . . . 109 distinction between city and long distance railways .... 109 operation of 718-773 rules still formins 718 relation of electric railway to horse railway "19 to steam railway "19 duty to passengers "20 to take greatest possible care "2t* but does not ensure safety 72(1 must use very high degree of care "20 710 INDEX. ELECTRIC RAILWAY — continued. section accidents involve due care and contributory negligence . . . 721 person becomes passenger, wheu 722 not like steam railway 722 only when on the car 722 or getting on or off 722 cars must stop for passengers 723 reasonably long time 723 may be negligence in starting car 723 getting on or off moving car not negligence per se 724 is question for jury 724 pulling signal bell may prevent recovery 724 proof of due care by passengers 725 safe landing places 726 railway not bound to provide 726 must not land passengers at night in bad places 726 riding on platform of car not negligence per se 727 is question for jury 727 standing on platform may be forbidden by rules 728 passenger breaking rule may be ejected 728 standing on steps is evidence of negligence, when 729 if room on platform or in car 729 persons so standing must look out 729 poles too near track may cause accident 730 raises question of faulty construction, for jury 730 city is not liable therefor 730 railway company may be liable 730 chains on cars to prevent ingress 731 conductor must assist passengers to alight 732 defective insulation causing shock 733 shock is /JTO/ia/acj'e proof of negligence 733 accident caused by car colliding with wagon 734 crossing steam railway tracks 735 injured person may sue both companies, when 735 injury resulting from apparent peril 735 imprudence of passenger excused by 736 contribixtory negligence of passenger 737 See Contributory Negligence. negligence is question for court, when 738 electric railways' duty to travellers on highway 739-766 must use reasonable care in operation 739 not same degree as to passengers 739 amount of care varies with risk 739 electric cars have no exclusive right to streets 740 travellers are not trespassers on tracks 740 car has paramount right 741 meaning of this phrase 741 negligence of carriage driving in front of car 742 watchfulness of motormen 743 INDEX. 711 ELECTRIC RAILWAY — continued. section necessity of ringing gong 744 ringing gong is negligence, when 745 stopping car on meeting friglitened horse 74G necessity of tliis is for the jury 740 negligence of driver of horse 747 riders of horses protected 74S necessity of reversing current 749 running at speed exceeding ordinance 7.'50 at high speed in absence of ordinance 75(J slipping trolley pole 751 action fur killing dog 752 necessity for headlight 753 signals when running at night 75:i repairing tracks, signals at 754 accidents when travellers cross tracks 755-701 negligence of parties is for jury 755, 758, 759 necessity of stopping, looking, and listening 75G-75S crossing in front of car not negligence, when 759, 700 dodging in street may be contributory negligence 700 as to cars on switches 701 contributory negligence prevents recovery 702 contributory negligence of children 703 raises question of sui Jiu-is 703, 704 and imputed negligence of parents 763, 705 Pennsylvania cases on carriages standing in streets .... 700 duty of electric railway to its employees 767-773 employees take all obvious risks 767 niotormen injured while cleaning apparatus 768 killed by backing electric car 769 heisrht of dashboard 770 passengers may be co-employees, when 771 screen for motormen, by statute, Ohio, Minnesota 772 constitutionality of this statute 773 RKIUT TO USE ELKCTKICITY AS MOTOU 182 depends on grant from legislature 183 and from municipal authorities 182 and must include right to set poles and string wires .... 182 latter accessory to right to use electricity, when 183 not when statute allows " electric motors " 183 when right to use electricity is inferred 184 from authorization to use " horse or other power " . . . . 184 to use other than animal power 185 not from authorization to use steam power 185 whether it can be granted by municipality 186 may be used if no motive power is stated l''^7 statutes as to right of way in streets 143 taxation of 816 See Taxation; Electiuc Railways. 712 INDEX. EMIXENT DOMAIN, sectiox defiuitiou of 98 vested right of, in legislature 99 statutes as to, constitutionality of 66, 100-102 must be for public use 5,6,16,17,101 what is public use 4, 6, 18, 20, 22, 101 just compensation for 102 when compensation should be paid 102 what is a taking under 103 acquisition of easement is 103 poles in highway are, when 104 See Highways. horse railways not additional burden 105, 106 electric railway no additional servitude 107, 108 telegraph and telephone poles are additional servitude . . 110-115 right of access to land 114 telegraph and telephone poles not additional servitude in some States 116 city streets and country roads, difference between .... 109, 117 underground wires, rules as to 118 location over railway 119 exclusive contracts with railway companies 120 use of railroad not to be interfered with 121, 127 compensation to landowner 123-125 compensation to railroad 122 electric light poles additional servitude 126 condemning street railway 127 failure to agree with owner 128 right acquired by condemnation 129 proceedings to condemn 130 must follow statute 130 petition, the 131 States where no statute exists 68 statutes as to, for telegraph companies 66-84 Alabama 69 Arkansas 70 California 71 Colorado 72 Florida 73 Georiria 73 Illinois 74 Indiana 74 Iowa 74 Kansas 75 Louisiana 75 Maryland 75 Michigan 76 Mississippi 77 Missouri 77 INDEX. ■ 713 EMINENT DOMAIN — con^'nwe'i. bectioj* Nevada "^ New York 78 North Carolina '^^ Ohio ''^ Oregon °^ Tennessee ^*^' Texas ^0 Virginia "^ Washington ^^ Wyoming "^ EMPLOYEES, ACTIONS BY, for negligence _G6--7'- against electric company 2G6-272 employee assumes risk of employment 266 if obvious, incidental, and natural 266 as in trimming lamp 266 or from imperfect pole 266,268,269,271 or wire -"'-' but not extraordinary risks 266 nor of latent defects 266,268,269,271 as to youthful or ignorant employees 266 duty of employer to instruct 206 duty to provide suitable tools 267, 269 and place to work 267 raises question of negligence 268, 269, 271, 272 as to original selection 268 and keeping in repair 268, 270 and inspection 268, 269 knowledge of employer of latent defects 269 how affected by special orders 271 contributory negligence of employee 272 See CoxsTRucTrox and M.vintexanck; Electric Light Operation; Electric Railway Operation. EMPLOYMENT, OFFERED, LOSS OF, damages for 619 occasioned by delay or error of telegram 619 if loss is definite, may be recovered 619 loser must make effort to mitigate loss 610 cannot recover for indefinite loss 619 nor if telegram is simply inquiring 619 " See Damages, Measure of. EQUITABLE INJUNCTION 232 See Equity ; In.iunction. EQUITY restrains illegal condemnation of right of way 102 See Eminent Domain. orders safeguards at grade crossings 230, 231 714 INDEX. EQUITY — conthmed. section restrains violent destruction of property 232 only if case is clear prima facie -'^'-^ but leaves question of right for fiual hearing 232 if no violence is apprehended 232 or if right to injunction is doubtful 232 -tt'ill restrain conflicting occupation of street by two electric light companies — •-' or by other conflicting electric wires 223, 224 restrains removal of poles, when 203 See Injunction. ERROR IN TELEGRAM, prima facie proof of negligence 403, 407 introduction of changed message is sufficient 407 throws burden on telegraph company 407 opposite rules in same States 407 distinction in cases where special contract 407 proof of error in such cases not enough 407 unless the proof is of gross negligence 407 effect of this on jury 407 binds their verdict, in what cases 407 See Negligence; Gross Negligence; Reasonable Care. ERRORS IN TELEGRAMS caused by storms 401 See Atmospheric Disturbances. EVIDENCE, telegrams to be produced in 437 must be so produced, when properly sought 437 by sulipoena duces tecum ^'^' are not privileged communications 437 statutes as to, California, Pennsylvania .^ 437 rules of telegraph company cannot protect it 437 subpoena must identify despatch 4-38 between two dates or parties not enough 438 oral evidence may be given 438 See Secrecy of Telegrams. telegrams as ..•••• ^^^"^'^^ oral evidence may be given if telegram not in writing . . . 665 telegi-am not presumed to be in writing 665 if in writing, original must be produced 666 secondary evidence not admissible 666 unless original is lost or destroyed 666 or in possession of other party ^^^ proof of custom to destroy will admit secondary evidence . . 667 but not if sent to central office for preservation 667 which telegram is the original 668 rule in Durkee v. Vermont Central R. R. Co 668, 669 telegram received by addressee original, when 668 telegram sent by sender original, when 668 INDEX. 715 EVIDENCE — continued. section proof of authorizing telegram necessary, •when (J70 agency of telegraph company must be proved GTO signature of sender best proof of authority 071 may be proved by circumstances 671 by answers to letters, payments, etc 071 telegrams as admission of parties 072 telegram as sent is original 072 telegrams, in actions against telegraph companies 073 fact of delivering nmst be proved by original 673 if lost, secondary evidence is admitted 673 in case of en'oneous delivery, message delivered is original . . 673 rule as to notice to produce 673 presumption of receipt of telegram from sending 07-4 notice to produce telegram not necessary, when 075 when action depends on telegram 075 telegram must be identified in suit 076 day of sending is sufficient 670 if erroneous, is not fatal variance 676 telephone messages as 677-080 answers to calls held as 677-679 like answers of clerks or agents 677-679 without identification of voice 677, 678, 680 reply is prima facie proof of identity 679 limitations in New York OSO information by telephone not sufficient for affidavit .... 680 EVIDENCE OF GROSS NEGLIGENCE 395 See Negligence, Gross. of negligence, error as 403, 407 See EiiuoR, Prima Facie Proof of Negligence. of incorporation of electric company 37 under general law . . <. 37 under special act 37 under laws of another State 37 EXCESSIVE DAMAGES, in actions against telegraph companies 663 See Damages, Measure of. EXCLUSION of telegraph from States, void 42 Si^e Franchise, Federal; Franchise, Exclusive. EXCLUSIVE CONTRACT for telegraph line over railway, void 43, 45, 120 See Franchise, Exclusive. EXECUTION BY ELECTRICITY 715-717 See Capital Punishment by Electricity. EXEMPLARY DAMAGES 664 when allowed in actions against telegraph C(impanies .... 064 See Damages, Measure of. 716 INDEX. EXEMPTION FROM NEGLIGENCE, sectiok telegraph companies 509-537 by special agreement 509 from liability for gross negligence 510 from liability for ordinary negligence 511 American cases sustaining such exemption 512 disapproving such exemption 513 effect of statutes on contract for 514 exemption from damage from atmospheric causes 515 See Atmospheric Disturbances. forms of special agreement 516 day message exemption , . . . 517 American cases sustaining 518-524 does not cover delay in transmission 525 nor delay caused by sending to wrong destination 526 nor total failure to transmit 527 nor failure on account of state of line 528 waiver of exemption 529 American cases disapproving the exemption 530-534 night message exemption 535 not sustained in some States 535 sustained in some States 536 See Day Message Blank; Night Message Blank; Negligence, Exemption from. EXEMPTION OF TELEGRAPH COMPANY, from liability for errors 403 caused by atmospheric disturbances 403 proof of • 403 See Atmospheric Disturbances ; Error prima facie Proof OF Negligence. EXPENSES, TRAVELLING, damages for 616-618 See Damages, Measure of. *o F. FAILURE TO TRANSMIT TELEGRAM, total, is negligence for which company is liable 404 See Transmission of Telegram. FALSE REPRESENTATION OF TELEGRAPH COMPANY, error in telegram equals 469 considered as ground of action 469 See Negligence, Liability of Telegraph Company for. FEDERAL FRANCHISE, acceptance of 50 FEDERAL FRANCHISE OF TELEGRAPH COMPANY 11, 12, 38-58 See Franchise, Federal, of Telegraph Company. created by act of Congress . 40 INDEX. 717 FEDERAL FRANCHISE, etc. — continued. section effect of act "^l renders hostile legislatiou void 42 prevents exclusion from State 4'J does not render landowner's consent unnecessary 44 avoids exclusive contracts with railways 45 does not prevent putting wires under ground 4G creates species of easement 47 does not displace other electric lines 48 nor invalidate act requiring local agent 49 act must be accepted in writing 50 effect on State statutes as to delivery of telegrams 51 on State tax statutes 52 on tax on receipts from message 53 on tax on franchise 54 on tax on business 55 on tax on poles ^^ on tax on property ^^ FEELINGS, injury to, damages for 633-666 See Mental Sufferings, Damages for. FIRE, loss by, insurance on electric light plant 714 collectible, if fire is caused by electricity 714 FORGED TELEGRAM 428 See Fraudulent Telegrams. FRANCHISE, necessity of, for electric companies 59 gives right to set poles and string -wires in highways .... 5f) source of, is in legislature 60 power to grant, delegated to municipal authorities .... 60 See Municipal Authorities, Grants by. to use electricity, incidental to power to light streets . . . • 181 See Elf.ctricity, Right to use, for lighting Streets. to operate electric railway 182-187 .See Electric Railway; Right to use Electricity as Mo- tive Power. to set poles and string wires, as incidental to electric railway . 183 assignability of 40, 158 See Franchise. Federal. under Act of Congress relating to telegraphs 40 not assignable unless so expressed in franchise 158 or by general or special law 158 electric light S3, 181 to set poles in highway 83 statutes as to "'^ California, Colorado, Indiana, Iowa, Kansas, Kentucky, 718 INDEX. FRANCHISE — continued. section electric light, statutes as to, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, North Carolina, Pennsylvania. See Electric Lights ; Franchise. electric railway 84 to lay tracks, set poles and string wires in highway . . 60, 84, 143 statutes as to Alabama, California, Michigan, See Electric Railway, Franchise. conflicting 212 telephone v. electric railway 213-222 electric railway interferes with operation of telephone . . 213, 217 by conduction 213,215 and induction 213,215 may be obviated by metallic circuit . . . 213,215, 218, 219 or ilcCluer device 213, 219 rights do not depend on priority 213, 216 telephone is species of telegraph 213 and therefore subordinate to electric railway . .213, 215, 216-218 Hudson River Telephone Co. v. Watervliet Turnpike & Ry. Co 214-216 telephone cannot enjoin electric railway 214 question if injury takes place on private land 216 or if injury to abutting landowners occurs 216 or as to turbulent and dangerous forces stored 216 electric railway must be skilfully constructed 217 must use ground wires if necessary 217, 222 electric railway need not use double trolley 219 telephone company may have damages for conduction . . . 220 English rule 221 telegraph v. electric light 223 when these interfere in operation 223 prior occupancy of street governs 223 telephone v. electric light » • . . . 224 if they interfere, priority of occupancy decides 224 electric light v. electric light 225 prior company has prior right 225 electric light v. gas posts 226 electric railway v. steam railway 227, 233 electric railway crossing steam railway 227 in aVjsence of statute, electric railway may cross .... 227 steam railway is subordinate to travel on highway .... 227 but electric cars must yield ri^ht of way 227 and must not put wires to interfere with steam cars . . . 227 rule in Michigan 228, 229 safesfuards will be ordered by court of equity 230 or crossing enjoined, if very dangerous to life .... 230, 231 INDEX. 719 FRANCHISE — continued. section EXCLUSIVE 1"'^ of right to set poles and wires in highway lOb power to grant is iu legislature IQii if not opposed to State constitution 108 or Federal constitution IG'"* or Federal fraucliise of telegraph companies 108 to do telegraphing business in locality, void 169 or over railway line, void 170 See FuAXCHisE, Federal. if separable from rest of agreement, latter is valid . . . 171 claim for exclusive right not upheld 172 grant of, by municipal authorities 173 power must be granted by legislature 173 must not conflict with constitution or statutes 173 statutes as to 174, 175 intent to grant, not inferred 1<6 as being iu derogation of public right 1'6 power to light streets does not give power to grant exclusive right 177 what is not sufficient to authorize such grant 177 for street railway, sustained 178 interpretation of 179 for horse car line not infringed by electric cars 179 for gas .lighting not infringed by electric lighting .... 179 as to monopoly by one gas company ISO or by lighting and heating company ISO from legislature It'O by statute in some States 1*^0 as to electric lighting ISO exclusive right in prior company ISO as to lighting and heating ISO statutes as to grant of, Arkansas 174 Kansas 174 Louisiana 174 Massachusetts ISO Missouri 175 Ohio 175 Pennsylvania ISO Tennessee . . 175 Texas 175 Virginia 175 FEDERAL, of telegraph company 11, 12, 3S-5S act of Congress granting 30 grants right over military and post roads -50 and public domains 40 and navigable waters 40 not to obstruct travel 40 720 INDEX. FRAXCHISE — continued. section or navigation 40 right to take materials for construction 40 and laud for stations 40 right not assignable 40 priority of government telegrams 40 act must be accepted in writing 40, 50 elfect of act on status of telegraph companies 41 makes them government agents 41 and means of interstate commerce 41 See Interstate Commerce. prevents exclusion of telegraph company 42, 43 or hostile State legislation 42 does not give right ot way over private lauds 44 See Laxdowxers ; Eminent Domain. renders exclusive right over railways void 45 does not prevent putting wires underground 46 See Underground Wires. for this is police regulation 46 grants an easement 47 not superior to electric light lines, when 48, 223-225 or electric railways 48, 213-222 or telephone lines 48 See Franchise, Conflicting. allows State statute requiring local agent 49 but not as to delivery of messages outside of the State ... 51 affects State taxes 52 on receipts from messages 53 on franchise 54 on business or license 55 on poles or mileage 55, 56 on property 57 See Taxation. ON PUBLIC HIGHWAYS 148 mode of granting by municipal authorities 132-187 is prerequisite to occupation of highways 132 See Municipal Authorities, Grant by. revocation of 159-161 See Municipal Authorities, Grants by. sale of, at auction 157 STATUTES relating to telegraph franchise 59-81 over highways and waters 61 does not authorize bridges 64 over bridges 61 statutes 61 Alabama, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, INDEX. 721 FRANCHISE — continued. statutes SECTION Louisiana, Maine, Maryland, 01 Massaclmsetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Vermont, Virginia, Washington, Wisconsin. telegraplj over railways 62 statutes as to 62 Alabama, Illinois, North Carolina, Arkansas, Louisiana, Ohio, Colorado, INIaine, Tennessee, Florida, Michigan, Vermont, Georgia, Mississippi, Virginia. over land of other corporations 62 statutes as to 62 Alabama, Tennessee, Ohio. Kansas, Missouri, over private lands 63 statutes as to 63 Alabama, Kansas, Ohio, Arkansas, Louisiana, Oregon, California, ]\Iichigan, Tennessee, Colorado, IMissouri,- Texas, Georgia, Nevada, Virginia, Illinois, New York, Washington. Iowa, North Carolina, over public lands 63 telegraph, taxation of 54, 854 See Taxation. power to purchase right of way 65 power to condemn 66-81 See Eminent Domain. TELEPHONE FRA'N'CHiSE, to Set poles in highways 82 considered as telegraphic S'- statutes as to °- Arkansas, Louisiana, New Jersey, California, Maine, New I'ork, _ Colorado, ISIaryland, Pennsylvania, Connecticut, IMassachusetts, Ehode Island, Florida, Michigan, Tennessee, Iowa, Minnesota, Vermont, Indiana, IMissouri, Virginia, Kansas, Nebraska, Washington, Kentucky, New Hampshire, West Virginia. 46 722 INDEX. SECTION FRAUDS. STATUTE OF 690-693 telegram as writing under 690 if authority is shown 690, G91 binds person for debt of another 690, 691 is sufficient writing 691 is a good lease 692 statutes enacting this rule 693 statutes as to notice by telegram, Oregon, "Washington, Ne- vada 693 deeds recorded by telegram 694 checks, etc., sent by telegram 695 seal transmitted by telegram 696 " telegraphic copy " means, what 697 FRAUDULENT TELEGRAMS 423-428 liability of telegraph company for 423 fines for such messages 423 statutes as to 423 California, Kentucky, Nevada, Colorado, Maine, Ohio, Illinois, Missouri, Oregon. fraud by telegraph operator 423 renders company liable 424 sending requests for money 424 instances 425 negligence as basis of fraud 426 action of false warranty 426 of false representations 426 messages by third parties 427 render telegraph company liable, when 427 in absence of reasonable care 427 requests for money should be identified 427 absence of suspicious circumstances not enough 427 substitution of forged telegram 428 FREE DELIVERY OF TELEGRAM 416 See Delivery of Telegrams. G. GAMBLING TRANSACTIONS, telegrams as to, need not be transmitted by telegraph company 353 so held as to sales of futures 353 and gambling stock transactions 383 but otherwise in some States 353 See Message, Acceptance op; Illegal Contract as Affect- ing Damages; Damages, Measure of. stock reports to bucket shops need not be furnished .... 293 GAS POSTS, removal of 226 See Franchise, Conflicting. INDEX. 723 GENERAL CHARACTERISTICS, section of telegraph 3-10 telephone 13-18 electric light li^-2--' electric railway 23,24 GOVERNMENT TELEGRAMS, priority of 40, 51, 349, 405 See FuANCiiisE, Federal. given by Act of Congress relating to telegraphs 40 at rates to be fixed by Postmaster General 40 See TuAXSMissiox of Telegrams; Order of, Transmission of Telegrams; Delivery of Telegrams. GREAT CARE 382 See Reasonable Care. GROSS NEGLIGENCE 385 See Negligence, Gross. GROSS RECEIPTS, tax on, see Taxation, Telegraph. GUARD WIRES, on electric railways, when necessary 217, 222 See Electric Railway. if required by city ordinance 222 at crossing of telephone -wires 222 is question of due care and negligence 222 H. HIGH TENSION WIRES, INSULATION OF 256 See Construction and Maintenance. HIGHWAYS, telegraph lines upon 11, 12, 88-58, 60, 61 See Eminent Domain. electric railway in, no additional servitude 104 horse railway no additional servitude 105 street railway, what kind of, may be additional servitude . . 105 New York decisions 106 electric railway, no additional servitude 107 what kind of electric railway is not 107 what kind may be 107,110-117 See Telegraph; Telephone; Electric Light; Electric Railway. use of overhead trolley system of electric power . . . .107,108 rural highways differ from city streets 117, 126 rights of electric companies is by grant of municipal authorities 132- 187 See Franchise; Eminent Domain; Municipal Authorities, Grants by. 724 INDEX. SECTION HORSE FRIGHTEXED BY ELECTRIC CAR 746-748 motorman should slow or stop car 746 jury should decide whether necessary 746 driver must not drive timid horse to see whether he will take fright 747 horseback rider must be looked out for by motorman .... 748 See Electric Railway, Operation of. HORSE RAILWAY, different from electric railway 23, 719 like in some respects 23 as track and uses 23 difference in size of cars, weight, and speed 23 See Electric Railway. HORSE RAILWAYS, not additional burden on highway 105, 106 See Highways ; Eminent Domain ; Electric Railway. HOTEL AS PLACE OF DELIVERY OF TELEGRAM . . 415 See Delivery of Telegrams. I. ILLEGAL CONTRACT, as affecting damages 583-585 in actions against telegraph companies, damages from breach of, cannot be recovered 583 for sale of futures, or stock gambling 583-585 See Gambling Transactions; Damages, Measure of. IMMORAL MESSAGES, not to be received by telegraph company 352 See Messages by Telegraph, Acceptance of. IXCORPORATION OF ELECTRIC COMPANIES .... 26 under general or special laws 27 telephone under telegraph law 15, 28 railway under street railway law 29 not under steam railway act 29 Iowa statute in reference to 29 light company, whether under manufacturing act 29 charter, illegal, void 30 statutes as to incorporation 31-35 California 31, 33 Colorado 31, 32, 33 Florida 31,33,34 Indiana 31, 32, 33, 34 Kansas 31, 34 Maryland 31,32,34,35 ^Michigan 31, 32, 33, 34, 35 ^lissouri 31, 32, 33, 31 Nebraska 31 INDEX. 725 IXCORPORATIOX, ktc — continued. section statutes as to, Nevada 31,33 New Jersey 31, 32, 33 New York 31,32,33,34,35 Pennsylvania 31, 33 Tennessee 31,32,33,34,35 telegraph company number of subscribers 32 description of route and termini 33 corporate name 33 names of stockholders 33 capitalization, description of 33 stock to be paid in before incorporation, what 33 term of corporate existence 33 telephone company, statutes as to incorporation of 34 number of stockholders 34 articles of association 34 electric light company, statutes as to incorporation 35 articles of incorporation 35 compliance with statutes necessary 30 proof of incorporation 37 under general law 37 under special act 37 under laws of another State 37 proof of dissolution 37 INDIRECT DAMAGES 57^-581 See Damages, Measure of. INJUNCTION, when granted against removal of poles 203 See Poles. notice of, sent by telegram 098 to stop sheriff's sale 098 party recovering must obey 098 party sending should send to local solicitor 098 statutes as to sending notice 099 See Equity. INJURY, to electric wires 43 See Wires. INSTRUMENTS, TELEGRAPHIC 397 suitable, must be provided by company 397 must be such as prudent man would employ 397 not necessarily the latest 397 must be kept in repair 398 See Negligence. INSULATION OF HIGH TENSION WIRES 250 See Construction and ^Iaintknance. INSURANCE ON ELKCTRIC LIGHT PLANT 714 collectible, if loss by fire started by electricity 714 726 INDEX. INSURER, f^^'^l^^ telegraph company not liable as 377-o79 See Reasonable Care. INTEREST ON TAX 860 See Taxation. INTERSTATE COMMERCE, telegrams made part of, by Act of Congress .... 11, 12, 38-58 See Constitutionality. and given a federal franchise 38-58 See Franchise, Federal. effect of this act on exclusive franchises 168 See Franchise, Exclusive. on free delivery statutes 51, 417 See Delivery of Telegrams. on penal statutes 485 See Penal Statutes. on underground wires acts 166 See Wires Underground. on tax acts . . . ; 52-57,818-846 See Taxation. J. JUDICIAL NOTICE of incorporation laws 37 See Incorporation. JURY DECIDES AS TO GROSS NEGLIGENCE, when 394 See Negligence, Gross. as to ordinary negligence, when 234, 397, 724, 727, 730, 738, 746, • 755, 758, 759 See Negligence ; Reasonable Care ; Electric Railway, Operation of. as to contributory negligence, when . . . 429, 430, 738, 762, 764 See Contributory Negligence. JURY DECIDES QUESTION OF REASONABLE TIME, when 409 JURY DUTY, telegraph operator exempt from 440-442 statutes as to 441-442 California, Nevada, Rhode Island, Florida, New Jersey, South Carolina, Georgia, New York, Texas, Louisiana, North Carolina, Virginia, Minnesota, Oregon, Washington, Mississippi, Pennsylvania, West Virginia, Wisconsin. INDEX. 727 JUSTICE, OFFICER OF, section telegrams from or to, given precedence 51 See OuDEu of Tuansmission of Telegrams. K. KNOWLEDGE OF TELEGRAPH COMPANY AFFECTING DAMAGES 58G, 587, 605 in action for negligence in transmission 613 See Damages, Measuke of. L. LAMPS, ELECTRIC, ARE CHATTELS, when . . 277 n. LANDOWNER, subject to taking of land for telegraph line 63 not subject to easement by prescription 86-97 See Prescriptive Easements. may have compensation for right taken for electric lines . . . 102 if not provided by statute, it is unconstitutional 102 See Constitutionality. compensation to be paid before construction 102 taking of easement to be paid for 103 what eli'Ctric lines require compensation to landowner . . 104-130 Sec Eminent Domain. as to compensation for impairing access to land, or liglit and air 109, 114, 216 may be required if poles interfere with access . . . 109, 114, 216 or if electric railway tracks are below level of street .... 109 distinction between city and county highways 109 may claim damages for impairing access even if fee of street is in city 114 wire alone overhanging land is not a damage 115 setting telegraph poles on railway, as to compensation for . 123-125 for injury by building electric railway 206 for injury to land by diverting water on it 207 tor injury to trees in streets or yards 209-211 5ee Trees. Also, See Franchise; Eminent Domain; Akutting Landowner; Franchise, Conflicting. LATENT DEFECTS, as affecting employer's liability 269 must be known to employer 269 or might have been, if due care used 209 no liability if inspection would not disclose 2G9 See Construction and Maintenance; Employees, Actions by. LAWYERS, MESSAGES TO, WORKS OF CHARITY, when 363 so as to be lawful to transmit, on Sunday 363 728 INDEX. LAWYERS, MESSAGES TO, ktc — continued. section depends ou facts of the case 3G3 court decides on language of message 363 See tJuxDAY Messages. LEASE BY TELEGRAM SUFFICIENT 692, 693 under Statute of Frauds 692 if proof shows authorization 692 statutes to this effect in several States 693 Oregon, Washington, Nevada '. 693 See Frauds, Statute or. LEGAL PROCEEDINGS, telegrams as to, have precedence 51 See Order of Transmission. use of telegram in 698, 699 See Injunction. LEGISLATION, STATE, affecting telegraph 42-58 as opposed to Act of Congress concerning telegraphs . . . 42-58 See Franchise, Federal. LEGISLATURE HAS RIGHT OF E:MINENT DOMAIN . . 99 See Eminent Domain. may grant right set poles and wires 60 See Municipal Authorities, Grants by. LETTERS PATENT OF THE UNITED STATES, no defence to discrimination by telephone companies . . . 308-313 See Discrimination, Telephones. LIABILITY OF 'telegraph COMPANY FOR NEGLI- GENCE 451-473 See Negligence, Liability of Telegraph Company for. twofold liability, contract and tort 451 implied contract with sender 452 express contract with sender 453 agency of sender, contract liability 454 addressee as principal of sender 455 addressee as beneficiary of message 456, 457 no liability in tort, if contract 458 tort lialnlity wliere no contract 459 liability to addressee, English cases 460, 461 same in United States 462 statutory duty 463 distinction between American and English cases 404 public duty 465 obligation to use due care 466 common agency of telegraph company 467 special property in message 468 changed telegram as false representation 469 professed authority as agent 470 limit to parties who may sue in tort 471 limitation of general rule 472 rule as affected by statute 473 INDEX 729 SECTION LIABILITY TO ABUTTING LANDOWNER L>( -1-212 for taking easement for electric lines 2U-i See Landownku; Eminent Domain. LIABILITY TO TRAVELLERS 200-202 injured by poles in highway 2U0 question for jury whether pole is dangerous 200 liability of town as well as electric company 201 opposite rule in Massachusetts 201 poles set without authority are nuisances 202 See Negligence in Construction and Maintenance. LIENS OF CONSTRUCTION 275-281 mechanics' liens ou electric plants 275 not exempt from, as public property 275 statutes as to 270 Florida 27« Wisconsin 270 liens cover poles and wires 277 See Appurtenances. material men's lien 278 railway lien 279 lien of employer does not include contractor 280 registered lien takes effect, when 2S0 between lien and mortgage, when 280 parties to lien suits 2S0 landlord's lien 280 LIGHT AND AIR, RIGHT OF, how affected by electric lines 109 See Landowner ; Poles ; Wires ; Franchise. LIGHT, ELECTRIC. See Electric Light. LIGHTING, right to use electricity for 181 Sec Electricity, Right to use for Lighting Streets. LIMIT OF TIME FOR PRESENTING CLAIM 538-564: against telegraj^h company for negligence 538 See Time Limit for Presenting Claim. LLNIITATIONS, STATUTE OF C61 as applied to action against telegraph companies 661 See Damages, Measure of. LINES OF TELEGRAPH, taxation of. 5ee Taxation; Telegraph; Poles; Wires. LOCAL AGENT OF FOREIGN ELECTRIC COMPANIES . 49 See Franchise, Federal. LOCATION OF POLES, condemnation of right of. See Eminent Domain ; also. Muni- pal Authorities, Grants by. 730 INDEX LOSS OF LIGHTING PLANT BY FIRE, sectios 714 insurance on '^* collectible if fire started by electric machinery 714 M. MANUFACTURING COMPANIES, exemptions as to, from taxation 854, 855 w hether this includes electric lighting companies 854 not so held in Pennsylvania 854 so held in New York 855 See Taxation, Electric Light. MARKET REPORTS, furnishing by telegraph 292-294 of stocks and ti'ade reports 292 if furnished to one must be to all 292 contrary decisions on this point 292 depends on charter powers 292 need not be furnished to bucket shops 293 nor for gambling purposes 293 boards of trade must allow telegraph to send reports, when . . 294 See Gambling Transactions ; Discrimination. MASSACHUSETTS DECISIONS AS TO MUNICIPAL OWNERSHIP 189 See Municipal Ownership op Electric Lighting Plants. MASTER AND SERVANT, rules of, as applied to electric companies 266-272 See Employees, Actions by. MATERIAL FURNISHED FOR ELECTRIC PLANT, covered by mechanics' lien, when 2<8 See Liens of Construction. MEASURE OF DAMAGES. See Damages, Measure of. MECHANICS' LIENS ON ELECTRIC PLANTS .... 275-278 See Liens of Construction. MENTAL SUFFERING, damages for, when recoverable 633-661 general rule that they cannot 633 rule in telegraph cases 633 damages sometimes allowed in such cases 633-635 in actions by sender of telegram 634-642 considered as " actual damages " under statute 634 also allowed on grounds of public policy 634 Indiana cases 634 North Carolina cases 635 Kansas cases ""^6 mental sufferings as aggravation 637 Texas cases 638-642 in actions by addressee of telegram ........ 643-G60 INDEX. 731 MENTAL SUFFERING— con^jHuerf. section two lines of decision *Ji-l cases allowiug such damages 643, G44, CAU-CM cases denying sucli damages ... 045-017 reasons for allowing such damages 048 language of message showing its importance 649-G.Jl Wadsworth v. Western Union Telegraph Co O-Jl party claiming as " aggrieved party " under statute .... G.j2 Texas rule 653-GGO So Kelle's case 0^4, 055 relationship showed by message 058-050 Statute of Limitations as applying to such actions 001 amount of damages for mental suffering 002 no proof necessary 602, 003 exemplary or punitive damages 007 MESSAGE, BY TELEGRAPH, acceptance of, for transmission 350-374 duty to receive, arises from public duty 350 may make reasonable rules as to 350 may require presentation at office 350 may choose which of two convenient offices 350 need only receive messages in usual scope of business • . . 351 need not receive criminal or immoral messages 352 statutes on this point '^"^2 Kentucky, Louisiana, Nevada, New Jersey 352 messages as to gambling transactions 353 sales of fixtures 353 messages received on Sunday, duty as to 354-368 .See Sunday Mkssagks. company may require written 309 and on its printed forms 309 may waive the rule requiring writing 370 by receiving oral messages 370 may waive use of blanks 371 may require prepayment of toll 372 and for answer also 373 may nuike reasonable rule as to 374 may in time of strike accept, subject to delay 374 MESSAGES, TELEGRAPHIC, TAXATION OF 53 See Taxation, TEtKGKAPii. MESSAGES BY TELEGRAPH ON SUNDAY 354-308 See SuxDAY ^Mkssagks. MILEAGE OF TELEGRAPH, TAXATION. See Taxation, Telegkaph. MONEY, transmission of, by telegram 423—128, 631, 032 company must be diligent and careful 631 and see that money is delivered as directed 631 damages in case of non-delivery 631 732 INDEX. MONEY — continutd. section damages where uote is protested 631 none, if no injury 631 payee must be identified 631 MONOPOLY, of telegraph line over railroad, void 45 See Franchise, Federal ; Franchise, Exclusive. MOVING BUILDINGS 259-265 disconnecting wires from 259 requires consent of electric company 259 or statutory authority 259 or makes person liable for damages 259 statutes as to Connecticut 260 Maine 261 Massachusetts 262 New Hampshire 62, 64 Wisconsin 26o See, also, Construction and Maintenance. MUNICIPAL AUTHORITIES, grant of franchise in highways by, statutes as to, » Alabama 133, 143 Arkansas 143 California 134, 143 Colorado 135, 143 Connecticut 135 Florida 136 Georgia 143 Illinois 136, 143 Indiana 136, 143 Iowa 137,143 Kansas 137 Kentucky 137 Louisiana 138 Maine 138 Massachusetts 138, 143 Michigan 143 Mississippi 139 Missouri 139, 143 Montana 143 Nebraska 139, 143 New Hampshire 139 New Jersey 140» 143 New York 140, 143 North Carolina 140 Ohio 140,143 Pennsylvania 140, 143 INDEX. 733 MUNICIPAL AUTHORITIES — co«^mueJ. section statutes as to Rhode Island Ml Tennessee 143 Texas 141, 143 Vermont 141 Virginia 142 Washington 142, 143 West Virginia 142 allowing use of highway by electric lines 145-147 as to telegraphs and telephones, depends on statute . . 60, 85, 145 as to electric railways 145 and often as to electric lights 145 sometimes inferred from other powers 145 is originally in legislature 14G as representing the public , 145 is delegated to the municipal authorities 146 1st, by express words of statutes 146 2nd, by inference from the language of statutes 146 3d, by necessity as incidental to other powers 146 mere convenience not enough 146 instances of inferred rights 146 cannot be delegated to committees 147 mode of exercising by ordinance 148 voidable if obtained by fraud or duress 148 may be impeached by party injured 148 may be inquired into by certiorari 148 voidable if granted by interested board 148 to be sold at auction, when 157 to highest bidder 157 to be paid for in cash 157 discretion of. is final 154 grants of franchise by, interpretation of 153 construed against the electric company 153 and in favor of the public 153 stipulations iu 149 whether must relate only to franchise 149 as to paving H9 or may cover operations of company 149 as, for instance, use of poles by other companies . . • 149, 150 may contain extraneous stipulations, when 151 as to transfer tickets 151 as to regulation of fares 151 as to taxes 151 exclusive rights, as to • 173-180 Sec Franchise, Exclusive. refusing location 152 as to telegraph lines, probably not possible 1 52 may as to electric light and railway companies 152 734 INDEX. MUNICIPAL AUTHORITIES — con/muec?. section revocation of location by , 159 not if it is a contract 159 or grant of property right 159 but may if it contains power of revocation 159, 160 MUNICIPAL CONSENT, proceedings for, must follow statutes 155 must comply with conditions precedent 155 necessary, when 144 for wires alone, poles being on private land 156 MUNICIPAL CORPORATION DISTINGUISHED FROM PUB- LIC 24 MUNICIPAL GRANT TO USE ELECTRICITY .... 186, 187 MUNICIPAL OWNERSHIP OF ELECTRIC LIGHTING PLANTS 21, 188-199 statutes as to 193, 197 Iowa 195 Massachusetts 194 Michigan 195 Mississippi 195 Nebraska 195 Ohio 196 Pennsylvania 196 authority for, implied when 188 exists in municipal authorities, when 188 not by implication, to erect plant 188 Massachusetts decisions as to 189 decisions as to implied power of 190 implied from power to light streets 190 difference between commercial and city lighting 190 commercial lighting by towns 191 purchase of existing plant 192 statutes as to 193-196 interpretation of Massachusetts act 194 ■what vote is necessary ,194 as to poles, improperly placed 194 constitutionality of acts 199 See Constitutionality. N. NATURAL DAMAGES 574-577 of negligence of telegraph company 574 if direct and proximate, may be recovered 574 court decides from language of message 574 telegraph company's knowledge not material 574 instances of direct, natural, and proximate damages . . . 575-577 See Damages, Measure of. INPEX. 735 NECESSITY, 8ECTIOW messages of, what are 35y-;5(iO whicli iiuiy lawfully be sent on Sunday 359 6'ee Sunday Mkssagks. NEGLIGENCE, CONTRIBUTOKY, .... 249-251, 272, 42fM35, 721-738, 742, 747, 755-701, 7G2, 703, 764, 705. See Contributory Nkgligknce. is a matter for jury to decide .... 234, 724, 727, 730, 73s, 746, 755, 758, 759 See, also, Contributory Negligence ; Reasonable Cake ; Error; Pri.ma facie Evidence of Negligence. IN construction and maintenance, liability for ... . 200-237 wrongful placing of poles injuring traveller 200 gives right of action, though placed by municipal authority . . 200 may render town liable 200, 201 not so in Massachusetts 201 poles set without authority a nuisance 202 company must set good poles and keep in repair 234 must not be negligent in this duty 234 care varies with the risk 234, 252 strong and dangerous currents need great care 231 such as electric light or railway 234 weak currents less, such as telegraph and telephone .... 234 question of care is for the jury 234 in England, question is of absolute liability 234 like Fletcher v. Rylands 234 liability to travellers, for lack of care in selecting poles 236 ditto for cross arms and wires 236 and for not keeping them in repair 236 not bound to withstand every stress of weather 236 negligent blasting raises liability 237 or leaving materials in street 237 or wliile stringing wires '-47 or for fallen or sagging wires -"^8 which injure traveller 248 by mechanical or electrical contact 248 same liability through crossed wires 248 if crossing is caused by negligence of defendant 248 if by falling or leaning pole, negligently chosen 248 or not kept in repair 248 or by wire sagging over steam railroad track 248 fallen or sagging wire is prima facie evidence of negligence . 249, 251,252 person injured may contribute by his negligence 249 which prevents recovery -_ wire broken by storm, negligently left in street 250 person putting up wires in street, negligent when 250 736 INDEX. NEGLIGENCE — continued. section not so. if notliing to show it is dangerous 251 person injured may recover against town or company .... 251 length of time for notice of defect 251 street railway overliead apparatus falling 252 falling occasioned by fires 253 buildings burning and wires fall 253 if wires left in street, will be negligence 253 wire attached to building without permission of owner . . . 251 if it does damage, company is liable . 254 dead wires, if not removed, may cause liability 257 See Employees, Action by. NEGLIGENCE IN OPERATION, liability of telegraph Company for 451-473 See Penal Statutes; Special Contracts. nature of liability 451 contract and tort . . . . , 451 implied contract with sender, when 452 from receipt of message 4o2 terms of, implied by law 452 express contract with sender, when 453 when message is written on blank 453 terms are printed on blank 453 sender as agent of undisclosed principal 454 gives action to principal 454 company may use defence as against agent 454 agent may have action in his own name . . 454 sender agent of addressee 45o gives latter action against company 455 addressee as beneficiary of message 456 has right of action against telegraph company .456 addressee's right of action as party for whose benefit contract is made 457 no liability in tort to sender, if express contract 458 but is, if only implied contract 459 liability to addressee 460 See Special Contracts. in contract only in special cases 4G0 in tort, conflict of opinion • 460 English rule does not allow 460, 461 gen°erally allowed in United States 462-473 based on statutory duty 463 breach of statutory duty gives action 463 distinction between English and United States cases .... 464 rests upon the statutes as to diligence 464 'and on the public duty of telegraph company .465 in special cases, delivery of erroneous message may give action 466 telegraph company not agent of both sender and sendee ... 467 nor is there any special property in message 468 changed telegram may be false representation 469 INDEX. 737 NEGLIGENCE — cott^nucrf. section not so held in England i^'ii telegraph company representing authority as agent .... 470 limit to parties who may sue in tort 471 third parties may sue, when 471 statutes affecting liability for negligence 473 restricting action to sender, Indiana 473 for liability for construction and maintenance of its lines, see Construction and Maintenance. GROSS, of telegraph company, what is 385-395 See Reasonable Care. distinction between, and ordinary negligence, difficult . . . 385 English cases 385 practical importance of this distinction 386 instances of gross negligence 387-391 cannot be relieved from by contract 392 See Stipulations; Special Contract. new distinction as to 392 tendency to abolish distinction 393 question of, is for jury 394, 510 KINDS of negligence of telegraph company, not selecting proper instruments 397 such as are reasonablj' suitable 397 and not keeping them in repair 398 not selecting competent operators 399 not liable for unavoidable accidents 400 not being insurer of message 400 not liable for accidents which it could not avoid by reasonable care 400 such as atmospheric or electrical disturbances 40l See Atmospheric Disturbances. such as sudden and severe storms 401 or electrical storms * 401 or sudden fire 401 may be liable if it might have prevented the loss 401 or if it knew of broken wires and did not tell customer . . . 402 EXEMPTION FROM, of telegraph companies 509-537 by special contract 509-537 as set forth in printed blanks 509 cannot exempt from gross negligence 510 differences of opinion as to ordinary negligence 511 exemption allowed by some courts 511 is allowed in England 511 by special agreement as to repetition 511 allowed in some of United States 512 disallowed in others 513 as against public policy 513 inllnenced by statutes 514 is matter of construction for courts 514 47 738 INDEX. "NEGLIGENCE — continued. - section statutes 514 Wisconsin, Nebraska, California, Indiana, statutes prohibiting exemption 514 Massachusetts, Minnesota, Nebraska, exemption from damages by atmospheric disturbances . . . 515 See Atmospheric Disturbances. See, also, Day Message Blank; Night Message Blank. as to liability of electric light companies for negligence, see Electric Light, Operation of; Employees, Actions by ; Construction and Maintenance. as to liability of electric railway companies for negligence, see Electric Railway, Operation of. NEWSPAPERS, telegrams sending news to 51 See Order of Transmission; Transmission of Messages. NIGHT MESSAGE BLANK, forms of .... • 535-537 clause exempting company from negligence 535 is in many cases absolute 535 makes no provision for repetition 535 and is therefore held void, as unreasonable 535 sustained in some States, however 536 because it gives half rates 5o6 and allows unimportant messages to be sent cheap .... 536 as to application to receiver of message 537 See Negligence, Exemption of Telegraph from ; Special Contracts; Day Message Blank. NOTICE, of legal proceeding sent by telegram, effect of .... 698, 699 See Injunction. judicial, of incorporation laws 37 See Incorporation. NUISANCE, poles and wires in highway, when 60 See Poles and Wires ; Construction and Maintenance. 0. OBLIGATION TO RECEIVE MESSAGE FOR TRANSMISSION in scope of business 351 to receive from all, without discrimination 350 but only in that branch of business which it practises . . . 351 not obliged to receive criminal or immoral messages . . 3.52, 353 as to receiving messages on Sunday 351-368 See Sunday Message. See also Discrimination. INDEX. 739 SECTION OFFICE HOURS OF TELEGRAni COMPANY .... 4i>l-lJ2 causing delay from closed office ^-ji does not render company liable 421 422 See Tkansmission of Teleguams. OPERATION OF ELECTRIC COMPANIES 282-284 main characteristics of 032 statutes as to 2'S;i duties of operation 283 grouping of electric coinjianies 284 iSee DiscKiMiNATioN, Pkoiiibition of Unjust ; Operation of Telegraph Lines; Message, Acceptance of; Reasonable Care; Negligence; Transmission of Messages ; De- livery of Messages; Contributory Negligence; Secrecy as to Message ; Connecting Lines, Duty as to ; Lia- bility of Telegraph Company for Negligence; Penal Statutes as to Telegrams; Special Contracts for Transmission of Telegrams; Time Limit for Present, ment of Claims ; Damages. Measure of ; Telephone AND Electric Light Operation; Electric Railway Operation. OPERATION OF TELEGRAPH LINES, statutes as to 320-349 Arkansas 321 California 322 Colorado 323 Connecticut 324 Georgia 325 Illinois 326 Indiana 327 Iowa 328 Kentucky - . 329 Louisiana ' 330 Maine 331 ]\Iaryland 332 Massachusetts 333 Michigan 334 Minnesota 335 Mississippi 33G Missouri 337 Nebraska 33S Nevada 339 New Jersey 340 New York 341 Ohio 342 Oregon 343 Pennsylvania 344 Tennessee 345 Virginia 346 7-iO INDEX. OPERATION OF TELEGRAPH LINES — con/muei, sectiok statutes as to, Washington 2*' Wisconsin 2'*'^ OPERATOR, TELEGRAPH, age of 4'^^ other statutes as to 443 intoxication of, while running trains 443 hours of labor 443 position of, when running trains 444 co-employee, or vice principal 444 necessity of suitable operators 399 exemption from jury duty 440-442 fraud of, how affecting company 424, 425 ORDER OF TRANSMISSION OF TELEGRAMS . 51, 320-348, 349, 405 preference to messages of government 51, 349 or officers of justice 51, 349 or public news 51, 349 or newspaper dispatches 349 must be sent with good faith and impartiality 349 See Transmission of Telegrams. ORDINARY CARE 383 See Reasonable Care; Negligence; Contributory Negligence. OWNERSHIP BY MUNICIPALITIES See Municipal Ownership of Electric Light Plants. •P. PARALLEL AND COMPETING TELEGRAPH LINES, discrimination against 288 See Discrimination. PASSENGERS ON ELECTRIC RAILWAY, duty of company towards 720-738 See Electric Railway, Operation of PATENTS OF THE UNITED STATES NOT TAXABLE . 852, 853 See Taxation. PAVING BY ELECTRIC RAILWAYS affected by franchise 491 PENAL STATUTES AS TO TELEGRAMS 474-490 in many States penalties imposed for negligence 474 such statutes construed strictly 475 will not be extended by construction 475 do not cover wilful disclosure by operators 475 covers delay in transmission, when 475 statutes to be construed equitably 477 INDEX. 741 PENAL STATUTES, ktc. — continued. section no penalty for harmless verbal errors 478 negligence does not give penalty, when refusal necessary . . 470 but may without bad faitli, when H'.) failure to deliver, when included in failure to transmit . . . 480 erroneous transmission not included in failure to transmit . . 4>>0 prepayment of toll necessary for action 481 so of reply 481 waiver by company not enough 481 nor tender withdrawn 481 refunding toll does not release company 481 statute cannot be avoided by contract 482 penalty not recoverable, if telegram sent on Sunday .... 483 statutes no force out of State 4"54 exceptional view in Indiana 484 statutes of most States unconstitutional 485 changes in penal statutes 480 repeal of statutes, effect of, on action 487 pleadings in actions for penalty 488, 499 jurisdiction of such actions 490 See, also. Negligence; Constitutionality. PENALTIES FOR DIVULGING TELEGRAM 436 See Secrecy of Telegrams. POLES, location of, condemnation of. See Eminent Domain. POLES, TELEGRAPH, taxation of 56, 830-833 See Taxation. POLES, NUISANCES, when 202,203 must not obstruct highway 109 nor substantially interfere with travel 199 riglits of travellers injured by poles in highway 200 action against town, when 201 poles set without authority are nuisances 202 may be removed, when 203 if right is doubtful 203 no injunction granted 203 if properly set, abutting landowner cannot complain . . . . 2ii4 if compensation has been paid 2<)1 unless specially injured 205 if so, must apply for redress promptly '-05 See, also, Construction and Maintenance; Negligence; Eminent Domain. POLES AND WIRES ON IIIGinVAY, additional sen-itude, when 10^ See Eminent Domain. 742 INDEX. POLES AND WIRES ON BIGIUV AY — coritinued. section right to set 59, GO-84 See Franchise; Municipal Authoritiks, Grants by. acquisition of right to set by condemnation. See Eminent Domain. exclusive right to set 169-171 See Franchise, Exclusive. prescription, statutes against 86-97 See Prescriptive Easements. of electric railways are not additional servitude .... 107-109 See Electric Railway. of telegraph lines, are • 108, 110-117 of telephone lines, are 108, 110-117 necessity of municipal consent for. See Municipal Author- ities. revocation of right to set in highways 159-161 are realty, when 277, n. See Appurtenances. blastings to set, liability for 237 See Construction and Maintenance. POLES OF TELEGRAPH COMPANIES, how taxed ^^ See Taxation, Telegraph. POSTAL SYSTEM, telegraph, part of, in England 4 POSTMASTER-GENERAL, receives acceptances of federal franchise of telegraph companies 40, 50 See Franchise, Federal. POST ROADS, right of telegraph over 40 See Franchise, Federal, of Telegraph Poles. POWER STATION may be held a nuisance 713 depends on circumstances '13 PRECEDENCE OF TELEGRAMS 51 new.s dispatches 51 relating to justice. See Order of Transmission. PREPAYMENT OF TOLL, on telegram 2' 2, 481 of answer ^'^ PRESCRIPTIVE EASEMENTS, statutes against ^" Connecticut v' Illinois 88 Maine ^^ Massachusetts 90 Michigan 91 New Hampshire 92 INDEX. 743 PRESCRIPTIVE EASEMENTS — con^mueJ. section statutes aguinst, New Jersey 03 New York 01 Pennsylvania 05 Rhode Island 9 See Eminent Domain. tracks crossed by telegraph 233 See FuANCHisE, Conflicting. STIPULATIONS IN TELEGRAPH BLANKS 494-508 to relieve company from liability. See Special Contracts ; Day Message Blank; Night Message Blank; Exemption of Telegkapii Companies; Negligence. STOCK EXCHANGE, telegraph reports to 294 See Discrimination. STORMS CAUSING TELEGRAPHIC ERRORS 401 See Atmospheric Disturbances. STREETS. electric lines upon. See Highways ; Franchise ; Eminent Domain. STREET LIGHTING, contract for 712 See Electric Light Operation. STREET, CITY, different from country road 109, 117 See Eminent Domain. STREET RAILWAY, condemnation of, by another 127 See Franchise, Conflicting. right to use electricity as motive power 182 See Electric Railway, Right to use Electricity as Motor. when additional servitude on highway 104 See Highways; Eminent Domain. SUBMARINE LINES OF TELEGRAPH 273, 274 are subordinate to navigation 273 must not interfere therewith 273 Engli.sh rule different '-74 is question of negligence only '-71 752 INDEX. SECTION SUBPCENA FOR PRODUCTION OF TELEGRAM .... 438 See Evidence, Telegrams in SUIT, bringing of, as affecting time limit 560 for presenting claims against telegraph company 560 See Time Limit. SUNDAY MESSAGES, for transmission by telegraph on 354-368 may be received by telegraph 354, 355 office may be kept open 355 but cannot be required to receive messages 356 or transmit them 356 except messages of charity or necessity 356 contract for transmission of other messages void 357 and no liability on company for negligence 357 except as to messages of charity and necessity 357 nor liability for penalties 358 many messages are of charity and necessity 359 is matter of law for court 359 need not be physical necessity 360 may be moral 360 perhaps even social 360 messages as to sickness and death are 361 and any professional messages to doctors are . . . . . . 362 not necessarily to lawyers 363 what are not messages of charity or necessity 364 excuse for non-delivery 365 necessity caused by sender's delay or inadvertence .... 366 proof of necessity 367 waiver of exemption 368 T. TAKING PRIVATE PROPERTY UNDER EMINENT DO- MAIN, what is 103 See Eminent Domain, TAPPING ELECTRIC LIGHT WIRES 711 See Construction and Maintenance; Secrecy of Telegrams. TAXATION, electric light companies 29, 815, 854-860 statutes as to 815 Maryland, New York, Washington. New .Jersey, Pennsylvania, whether considered manufacturing company 854 and so exempt °54 not so held in Pennsylvania 854 INDEX. 753 TAXATIOX — continued. suction so held in New York ^oo till taxed by recent statute S'jy regulated by dividend 850 ELECTIUC KAILWAY ^I'j statutes as to, Georgia, New Jersey blU TKLKGKAi'ii, On mileage 830-838 rule of Supreme Court as to 837, 838 on franchise . . 04, 834 corporate fjanchise may be taxed 834 but not federal franchise 834 distinction between tax on franchise and tax on property 835, 839, 840 on foreign corporation 841 license or business tax 55, 82G-8'29 imposed by city or State, is lawful 820 imder restrictions 8L7-81.9 must not include interstate messages 828, 829 nor messages for Federal Government 827-829 on corporate property 57, 842-845 power of State to tax 52-58, 817, 818 subject to limitations 818 by Act of Congress 38-58, 818 See Franchise, Federal. penalties for not making returns 804 on receipts of messages 53, 819-825 on gross receipts from messages, must not include interstate messages 52-58, 819-825 nor government messages 52-58, 819-825 statutes as to 775-803 Alabama 775,770,777 Arkansas 778 California 779 Colorado 780 Connecticut 781 Delaware 782 Florida 783 Georgia 783 niinois 784 Indiana 785 Iowa 780 Kentucky 787 Maine 788 Maryland 7S8 Massachusetts 789 IMichigan 790 Minnesota '^1 IMississippi '^^ Missouri 792 48 754 INDEX. TAXATION — continued, section statutes as to Nebraska , . . 792 New Hampshire 792 New Jersey 793 New York 794 North Carolina 794 Ohio 795 Pennsylvania 796 Khode Island 796 South Carolina 796 Tennessee 797 Texas 798 Vermont 798 Virginia 799 Washington 800 West Virginia 801 Wisconsin _ 802 Wyoming ' 803 tax on poles 56, 830-833 may be imposed as rent 830, 831 if reasonable 831, 832 or as payment for inspection of poles 833 TELEPHONE 847-853 as telegraph 16, 805, 847 statutes as to 805 Colorado, New Jersey, Pennsylvania, Delaware, New York, Virginia, Minnesota, North Carolina, Washington. New Hampshire, Ohio, of Bell Telephone stock 848-850 statutes as to 805-814 Alabama • 806 Arkansas 807 Connecticut 807 Florida 808 Georgia 808 Indiana 809 Kentucky 910 Maine 810 Maryland 810 Massachusetts 811 Michigan 811 Mississippi 812 Tennessee 812 Texas 813 Vermont 813 Wisconsin 814 uniformity necessary, when 844, 845 INDEX. 755 T: AX XT WS — continued. sectiom affected by Act of Congress, telegraph 52-5S, hly-^45 as to receipts from messages 53, bl'J-v25 oil franchise 54, 834, 841 on business 55, 820, 829 on poles 50, 830-833 on property 57, 83U-84'- See Taxation, Telegrapu. determined by residence 857 of electric companies 774-SOU See Taxation, Electric Light; Taxation, Electric Rail- way; Taxation, Telegraph ; Taxation, Telephone. exemptions 851-855 exemptions of capital invested in patents 851, 85;j not capital paid for patented articles 852 exemptions of manufacturing corporations 854, 855 TELEGRAxMS, claims for damages for error in time limit 538-554 See Time Limit. delivered by telephone not good delivery 42(i See Delivery of Telegrams. government, priority of 40 See Order of Transmission. delivery of, as interstate commerce 51 " See Constitutionality; Interstate Commerce. affects statutes as to 51 See Franchise, Federal. duty as to transmission and delivery 51,513-537 limited free delivery ' 51 See Transmission of Telegram ; Negligence ; Acceptance OF Message; Delivery of Telegram. forged •i'-S See Fraudulent Telegrams. fraudulent 423-428 See Fraudulent Telegrams. protection of, in transmission 439 See Secrecy of Telegrams. secrecy, as to 436-439 See Secrecy op Telegrams. special contract for transmission 491-508 .See Special Contracts for Transmission; Exemi-tion of Telegraph Company; Day Message Blank ; Night ^Ies- SAGE Blank. tax on receipts from 53, 819-825 See Taxation; Telegraph. used in legal proceedings 608-099 See Injunction; Whits ; Equity. 756 INDEX. TELEGRAMS — continutd. section from or to officers of justice 51 /bee Order of Transmission. as evidence 665-676 See Evidence, Telegrams as. as forming contract 681-689 See Contract by Telegram. must be received by company for transmission 350-374 See Discrimination; Acceptance of Message. on Sunday, as to lawfulness of 354-368 See Sunday Telegrams. over connecting lines, liability for 445-450 See Connecting Lines. to be produced in evidence 437 See Evidence, Telegrams in. to " care of " 414 See Delivery of Telegrams. TELEGRAPH, general characteristics of 3, 4-12, 41 is a public use or employment 4-6, 101 is part of postal system in England 4 government agent in United States 41 telegraph company may condemn right of way . . ... 5, 6 may make reasonable rules 5 must not discriminate 5, 6 test of pnblic character 6 must keep open offices 6 is not a common carrier 7, 377, 378, 379 difference between, and common carrier 7, 378 is very analogous to common carrier 7, 379 is not bailee for hire 8, 9 is somewhat analogous to 8 is not bailee locatio operis faciendi 9 true position of ^^ telephone is a species of 13, 17 federal franchise of 11, 12, 38-58 See Franchise, Federal. State franchise of 60-81 telegraph companies, incorporation of 31-33 .See Incorporation. limit of time for making claim against 538-564 in actions for negligent sending of telegram .... 538-564 See Time Limit. right to telephone service 307-313 See Discrimination. connecting lines, duty as to 445-450 See Connecting Lines. I INDEX. 7o7 TELEGRAPH — continued. section tulegrapli coin[);inies, duties of transmission and delivery 404-428 See Transmission oi' Tkleuuams; Oudf.u of Transmission; Delivery of Telegrams; Negligence; Operation of Teleguaph Company. . duty as to Sunday messages 354-307 See Sunday Messages. duty of reasonable care 375-395 See Keasonaule Care; Negligence; Gross Negligence. duty to receive messages 350-374 See Acceptance of Message. exclusive contract for right of way over railway 120 See Franchise, Exclusive. federal franchise of 11, 38-58 See Franchise, Federal. liability for negligence 451-473 See Negligence. may require written message 309 See Acceptance of Message. not common carrier 7 does not ordinarily insure messages 377 origin of insuring view 37S difference between telegraph company and common carrier . 379 See Keason.\15LE Care. reasonable rules of 374 See Acceptance of Message; Operation of Telegraph Lines. taxation of 52 See Taxation ; Telegraph. telegraph lines, act of Congress relating to 40. 41 See Franchise, Federal. as affected by State legislation 42-58 See Franchise, Federal. exclusion from State, void 43 See Franchise, Federal. exclusive franchise for, by contract 170-172 See Franchise, Exclusive. taxation of 775-803,817-846 See Taxation; Telegraph. wii'es underground 4<">, IIS, 102-167 See Wires, Undeuground. wires, injury to. See Wires, Electric, Injury to. V. electric light wires 48 Sre Fr.vnctiise, Conflicting. telegraph blank, agreements in 491-508 5ee Special Contracts; 1).\y Message Blank; Night Message Blank. telegraph companies, discrimination by, forbidden .... 2^5-294 See Discrimin.\tion. 758 INDEX. TELEGRAPH —continued. section telegraph franchise v. electric light -48, 223 See Franchise, Conflicting. includes telephone for taxation 847 See Taxation, Telephone. telegraph line crossing steam railway track 233 must not interfere with operation of railway 233 See Franchise, Conflicting. easement for ^' prescriptive, statutes against 86-97 *o See Prescriptive Easements. operator exempt from jury duty 440 See Operator. over highways and water 61 See Eminent Domain. under water 273, 274 See Submarine Line. over private lands "** See Eminent Domain; Right of Way; Landowner. poles additional servitude on highway in most States . . . 110-11'5 See Eminent Domain; Landowner. are a taking of property 110, 113 and exercise of eminent domain 110 See Eminent Domain. gives owner of land right of damages HI must be paid before poles are set HI may be acquired by grant H- may impede access to land 114, 116 or light and air 114 even as to future improvements 114 may not be enjoined, when 114,115 as to wires over street H'^ poles not additional servitude on highway 102, 108, 116 in some States so held 116 use of highway includes transmission of intelligence .... 116 courts influenced by old custom 116 do not give damages to abutting landowners 116 for injuries to cellar ^'^ ^ city streets and country roads, difference between 117 telegraph poles may not be additional servitude in city . • . • 117 difference between rights of abutting landowners in city and 117 country 1 1 o underground wires, as to, ^^^ over railway, right of, depends on right of eminent domain H'^ must be given by statute H"^ See Eminent Domain. and by express words H'^ cannot be defeated by exclusive contract of other telegraph company ^"^ INDEX. 750 TELEGRAPH — continued. section over railway, right of, because of the federal franchise 120 but receiver of railway company may object, when .... 120 telegraph must not interfere with working of railway . . . 121 telegraph company must pay lor right 122 right, how valued 122 by expert testimony 122 includes damages to railway 122 telegraph company must pay abutting owner 123-12.5 not if telegraph is for railway service only 120-125 may be enjoined, when 1-3 facts which show use outside of railway use 124 necessity of consent of municipal authorities. See Muni- cipal AUTUOKITIKS. poles, taxation of. See Taxation, Tfxegraph. right of way over railroads 19, 62, 10'- See Eminent Domain. telegraph, telephone, electric light, electric railway, are public uses 1"1 telephone is a species of 13-17 See Telepuone. TELEPHONE, is a species of telegraph 13-17 dilfers in terminal instruments 13-17 delivery of telegram by ■120 telephone company may be incorporated under telegraph act . . 15 may be taxed as telegraph company 16 may exercise eminent domain as telegraph company ... 16, 17 carries on a public business IS? 1^*1 incorporation of. See Incouporation. under telegraph law . "8 poles and wires, right to set 60, S_ See Franchise. telephone companies, discrimination by 295 See Discrimination. incorporation of l*'' -^' 3"* not protected in discrimination by United States patents . 308-313 See Discrimination. statutes as to discrimination by 296-306 See Discrimination. Arkansas • -^6 Connecticut '■^' Indiana -^^ Kentucky -■ " Maine 3^^^' IMaryland 301 Massachusetts "'^•' Michigan 303 760 INDEX. TELEPHONE — continued. section statutes as to discrimination by, Tennessee ^^^ Vermont 305 Wisconsin 306 franchise ^2 See Franchise, Telephone. franchise v. electric light 224 See Franchise, Coxflicting. franchise v. electric railway franchise 213-222 See Franchise, Conflicting. is a public use 18 See Public Use. is telegraph 13 telephone message as evidence 657-680 .See Evidence, Telephone Messages as. operation of 701, TOi not same rules as telegraph 701 no liability for mistakes in conversation 701 unless its operators transmit the message 701 nor for failure of instruments to work 701 liability same in principle as telegraph 701 if it receives written messages for transmission 702 jury to decide what the mode of doing business 703 other rules governing telephone operation 704 See Discrimination. poles additional servitude on highway .... 108, 110, 112, 115 See Eminent Domain. statutes against acquiring prescriptive rights 86-97 See Prescriptive Easements. poles not additional servitude on highway, when 116 See Telegraph; Eminent Domain. necessity of municipal consent for. See Municipal Author- ities, Grants by. rates to be arranged by Statute, when 315 See Rates. facilities refused to telegraph companies 307 See Discrimination. stock, taxation of 848-850 See Taxation, Telephones. taxation of 16,805-814,847-853 See Taxation, Telephones. taxed as telegraph 1^' '^17 to be supplied to individuals 314 See Discrimination. TIME LIMIT, for presenting claim against telegraph company 538-564 generally printed in message blank 538 form of limitation 539 INDEX. 701 TIME LUUT — continued. bection generally held reasonable as to sender ul'J in a few States, has been held unreasonable •'>1() earliest case, in Pennsylvania i>ll whether the limit of time is reasonable is for court .... 64'2 depends upon whether the sender has time to ascertain damages 542 whether valid if all time is elapsed before finding out damages 543 is valid, if delay caused by plaintiff's own negligence .... 543 reasonableness is for jury or court, when 544 signing the blank binds the sender 545 except in one State, Illinois 545, 546 in this State, other evidence of assent or knowledge required . 546 stipulation cannot be objected to by sender 547 exception in one State '-'■»• exemption clause not opposed to statutes as to care .... 54S nor to penal statutes 5^^ question whether exemption covers claims for penalties . 549, 550 does not cover non-transmission 551 non-delivery is prima /«cie proof of non-transmission .... 551 time limit begins at sending of message 552 that is, transmission over wires y--'- and presentation within that limit is enough 552 sender's ignorance of time of sending no excuse 553 if enough is left, after he learns of damages 553 concealment of accrual of claim by company waives exemption 551 operation of stipulation on addressee 555 operation when sender is his agent 5")5 when delivered on blank containing time limit clause .... 555 when message is never delivered 556 as atfecting action of tort by addressee 5.57 claim must he stated in some detail 55S may be made to telegraph operator 559 cannot be given to messenger boy for operator 559 notice given by wife will support action by husband in her right 559 ■whether bringing suit is notice of claim 560 so held in some courts 560 denied in others 560 time limit clause may be waived 561 not waived by offer of operator to look it up 561, 562 but may be waived by request of time to investigate .... 562 statutes reLiulatinsr time of claim 563 Texas, Massachusetts 563 suit barred by statute as to informer's penalty, when .... 564 TOLL, PREP.WMEXT OF 372 TOOLS, SUITABLE, duty of employer to provide 267 See Employee, Actions by. 762 INDEX. TORT, SECTION liability of telegraph company for negligence in 458-473 See Negligence, Liability for. TOWN, LIABILITY TO TR.WELLERS 201 for defective electric lines 201 See Negligence; Construction and Maintenance. TRACKS AFFECTED BY SEWER BUILDING 208 TRADEMARK OF TELEGRAPH COMPANY, how acquired 700 by filing in county clerk's office 700 becomes property of company 700 TRANSFER TICKETS, of electric railway's, as affected by franchise 151 TRANSMISSION OF TELEGRAM, delay in " 408 See Tkansmission of Telegrams; Order of Trans- mission. TRANS:\IISSION OF TELEGRAMS . . 51, 320, 348, 349, 404-428 duty of company as to 404 violated by total failure to transmit 404 unless excused by unforeseeable accidents 404 order of transmission 405 is time of receij^t 405 priority of government messages 405 or public news 405 accuracy of transmission 406 reasonable care to receive 406 is question of negligence 406 and for the jury 406 See Negligence; Error; Delay; Order of Trans- mission. transmission of telegrams 525-534 delay in, not covered by exemption clauses 525 not caused by sending to wrong destination 526 nor by total failure to transmit 527, 528 See Special Contract. exemption clause may be waived 529 See Day Message Blank; Night Message Blank. TRAVELLERS, action by, against electric company 200-202 See Construction and Maintenance; Negligence. injured by poles set in highway, rights of 200 See Poles. right of action against town 200 See Construction and Maintenance. affected by negligence in construction 236 on highways, as to electric cars 739-766 See Electric Railway Operation. IN'DEX. 703 TRAVELLING EXPENSES, section damages for 010-018 wlien recoverable in actious against telegraph companies . . GIO Set Damagks, MKA.suiiE of. TREES, affected by building electric line 209-212 may be trimmed and brandies cut 2UU. but no unnecessary damage done 209 or landowner may claim damages 209 statutes as to 210, 211 Connecticut 210 Maryland 2l«> ^lichigan 21U New Hampshire 211 Pennsylvania 211 Vermont 211 TROLLEY WIRE REMOVED BY STEAM RAILWAY COM- PANY 229 See FuAXCHisE, Coxflictixg. U. UNAVOIDABLE ACCIDENTS, liability of telegraph company for 400 See Atmospheric Distukbances; Negligence; Liability OF Teleguapii Company fou. UNCERTAIN DAMAGES 570 See Damages, Measure of. UNDERGROUND WIRES, as affected by telegraph acts 4G See Franchise, Federal. as required by local authorities 118, 162-1G5 See Wires, Underground. USAGE, as interpreting abbreviations in telegrams 60S, G12 See Abbreviations; Cipher Messages; Damages, Measure of. W. WAIVER, of exemption from negligence 5-9 of writing for telegram "^'^ .See Special Contract ; Day Message Blank ; Night Message Blank. WATER, DIVERTED ON TO ADJOINING LAND ... 207 by construction of street railway -^' See Construction and Maintenance. 764 INDEX. SECTION WATERS, TELEGRAPH LINES OVER AND UXDER . . 61 riglit by Act of Congress 40, 50 See Franchise, Federal. by State statutes 61 See Fraxchise. does not authorize bridges 64 See Submarine Wires. WAY, right of, for poles, condemnation of. See Eminent Domain. WIRE, company responsible for its own 255 attached to building 254 statutes against prescriptive right 86-97 as realty, when 277 n. See Appurtenances. broken by storm, as to 250 falling, negligent removal of . . ■ 253 to highways, are additional servitude, when .... 107-109, 115 See Poles; Telegraph; Telephone; Electric Light; Electric Railway. See Construction and Maintenance. falling, evidence of negligence 252 See Negligence. imperfect, liability of company for 268 See Employee. WIRES, disconnecting statutes as to 260-265 Connecticut 260 Maine 261 Massachusetts 262 New Hampshire 263, 264 Wisconsin ""O dead, should be removed 257 See Negligence. falling or sagging 248, 249 See Negligence. hifh tension, insulation of 256 stnngmg or -*' right to string on highways 59 See Franchise. underground, as affected by telegraph acts 46 as additional servitude on highway 118 ' as required or permitted by local authorities 162 permission, statutes as to 163 Indiana. Michigan, New Hampshire, Kansas, Mississippi, New Jersey, Massachusetts, Missouri, New York, Ohio INDEX. 7G5 WIRES — continued. section- mandatory statutes as to 101, 165 Maiylaud, New Jersey, Ohio, Massachusetts, New York, Vermont, as to constitutionality of these statutes, see Constitutionality. mandamus for authority to lay 107 in New York, governed by Subway Commission 1G7 may be ordered underground 107 and overhead wires torn down 107 broken, notice of 4U2 disconnected for moving buildings 259-205 See Moving Buildings. are realty, when 277 n. See Appurtenances, on another company's fixtures 25'i ELECTKic, injury to 265 a statutes as to 265 n. Arkansas, Maine, Ohio, California, ISlaryland, Oregon, Colorado, ^lassachusetts, Pennsylvania, Connecticut, Michigan, Rhode Island, Delaware, Minnesota, South Carolina, Florida, ISIississippi, Tennessee, Georgia, Missouri, Texas, , Illinois, Nevada, Vermont, Indiana, New Hampshire, Washington, Iowa, New Jersey, West Virginia, Kansas, New Y'ork, Wisconsin. Kentucky, North Carolina, WRITS, service by telegram 698, 699 See Injunction. WRITTEN, copy of telegram to be delivered 419 See Deliveuy ok Telegram. instruments, may be sent by telegram 694, 695 telegram, how used in evidence 006-675 See Evidence, Telegram as. telegram, when necessary 369 See Delivery of Telegram. YOUTH, of employee, as affecting employer's liability 266 See Employee, Actions by; Operator. g /^^UNIVERSITY OF CALIFORNIA LIBRARY 7 / ^--i^'^ Los Angeles This book is DUE on the last date stamped below. APR 2 1 1971 Form L9-Series 4939 \ LITY I mi ! 000 683 612 6 MVl iO 100H3S SHiaONV SOI vm^aoanvo ao Aiis"aaAiNf^ aHi ao A^vaan ani {