(I i-^ff? 4 THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW A TREATISE ON THE LAW OF TELEGRAPH AND TELEPHONE COMPANIES BY S. WALTER JONES KANSAS crrv. MO. VERNON LAW BOOK COMPANY 1906 T 190 G Copyright, 1906, BY VERNON LAW BOOK CO. Press of E. W. Stephens Publishing Co. Columbia, Missouri. TO THE HON. JAMES C. LONGSTREET OF MISSISSIPPI^ SCHOLAR, LAWYER, GENTLEMAN. 687144 PREFACE. There are no institutions with corporate functions which have grown so rapidly and which have become so convenient, so necessary and so absolutely indispensable to the commercial interests of the world as telegraph and telephone companies. Many can yet remem- ber when the public news was conveyed by the slow and unreliable means of the stage-coach, but now every city and nearly every town, village and country place is enjoying the conveniences of these insti- tutions; and soon a perfect network of telephone wires will connect the farmhouses with the towns and cities, bearing the news of each day's important happenings. It must follow, therefore, that the construction, operation and maintenance of telegraph and telephone lines, affecting such a wide diversity of interests, has been and always will be a constant source of litigation. The author has sought in this treatise to set forth clearly and concisely the legal rights, duties and liabilities of these public service corporations, with respect to the public and to the in- dividual. Several years ago, when the science of telegraphy was new to the world, there were two books written on the subject of TelegTaph Com- panies, but these authors had to deal with the first stages of the sub- ject's development; and, without any reflection on the writers or their books, the law applicable to these companies at that time has since undergone many changes. We believe this is the only treatise on the combined subject of Telegi-aph and Telephone Companies. Consequently the author has labored under many difficulties. It has been necessary to resort to the original sources of the law, as well as to examine and analyze the many decisions of the courts that have sought to apply the law to V VI PREFACE. these companies. Great care has been exercised to secure accuracy in the citation of cases; and for the convenience of the profession, but with considerable labor and expense, parallel references are given to the principal systems of reports and reporters. We believe that every principle of law applicable to these com- panies has been carefully and fully set forth in this work. How well we have succeeded in this task must be judged from the work itself. We ask the indulgence of the profession for any errors that may ap- pear in the text. October 1, 1906. S. Walter Jones. TABLE OF CONTENTS. CHAPTER I. GENERAL NATURE OF TELEGRAPH AND TELEPHONE COMPANIES. § 1. Definition. 2. Distinction between telegraph and teleplione companies — similarities. 3. Same continued — dissimilarities. 4. Same continued — liabilities of one greater than the other. 5. Telegraph in statutes — embrace telephone. 6. Same continued — reason. 7. Same continued — reason as compared to improvements on other corporations. 8. Same continued — under statutes. 9. Same continued — construction of statutes. 10. Same continued — illustrated. 11. Same continued. 12. Same continued. 13. Same continued — when applied. 14. When different rule obtains — intent of law-makers. CHAPTER n. LEGAL STATUS OF TELEGRAPH AND TELEPHONE— AS TO PUBLIC USE. § 15. Right of eminent domain. 16. How to be exercised. 17. Telephone included. 18. Accepting right of eminent domain. 19. To regulate charges. 20. Character of property. CHAPTER HI. AS TO COMMON CARRIERS. § 21. Scope of chapter. 22. Common-law theories. 23. Same continued — decision criticised. vii Vlll TABLE OF CONTENTS. 24. Common-law theory continued — distinction between these and common carriers — reasons. 25. Common-law theorj^ continued — analogy to common carriers of goods. 26. Common-law theory continued — degree of care. 27. Common-law theory continued — bailees for hire — analogy. 28. Common-law theory continued — quasi-common carrier of news. 29. Common carriers continued — law applicable to both tele- graph and telephone companies. 30. Statutory theory. 31. Common carriers in absence of statute are not — reason. 32. Reasonableness of statutes — making them common carriers. 33. Statutes superior to any agreement. 34. Beyond the limit of the state. 35. Substantial compliance with form of message. 36. Prima facie negligence. 37. Cannot exempt themselves by contract. 38. Public servants must serve the public impartially and in good faith. 39. Exception to rule. 40. Duty to forward message in order of time received. 41. Should not disclose the message. CHAPTER IV. CORPORATE RIGHTS AND FRANCHISES. § 42. Definition. 43. Franchise and charter distinguished. 44. Same continued — distinction between franchise and license 45. Kinds of franchises. 46. Alienability of franchise — primary. 47. Same continued — secondary. 48. Same continued — leases. 49. Same continued — legislature may authorize alienation. CHAPTER V. RIGHT OF WAY. 50. Definition. 51. Interest in land acquired. 52. Same continued — compensation. 53. Same continued — owner not estopped. 54. Further considered — how and from whom acquired. TABLE OF COXTENTS. IX 55. Same continued — federal grant. 56. Same continued — what is granted. 57. Statutes defining what are post-roads, etc. 58. Must comply with conditions — character of. 59. Scope and effect of act — statute permissive only. GO. State cannot prohibit company from doing business therein on compliance with said act. CI. Same continued — exception to power — police regulations. 62. Does not interfere with right to compensation. 63. Same continued — reason of rule. 64. Same continued — along railroads — compensation, when al- lowed. 65. Same continued — compensation to road — reason for allow- ing. 66. Same continued — the act does not affect the right to com- pensation. 67. Same continued — right acquired by agreement. 68. Same continued — executive use — cannot be acquired. 69. Same continued — different rule when grant from United States. 70. Condemnation proceedings — must be under state statutes. 71. Act otherwise considered. 72. State grants. 73. On railroad. 74. Same continued — conditions not to interfere with running trains. 75. Same continued — award. 76. Canal — under same statutes. 77. The term "highway" embraces city streets. 78. Conditions of grantee. CHAPTER VI. MUNICIPAL GRANTS. 79. Easement — where vested. 80. Same continued — authority — how acquired. 81. Same continued — terms and conditions. 82. Same continued — unconditional statutes. 83. Same continued — city's consent. 84. Must petition municipalities. 85. Compensation to municipalities. 86. Same continued — city control. 87. Same continued — charge in nature a rental — decision of point. 88. Same continued — not on gross income — effect of. TABLE OF CONTENTS. 89. Same continued — reasonable charges. 90. Termination of franctiise to occupy streets. CHAPTER VII. CONSTRUCTION AND MAINTENANCE OF TELEGRAPH AND TELEPHONE LINES. § 91. In streets. 92. State control. 93. Right may be delegated to city. 94. City control. 95. Unauthorized use — nuisances. 96. Additional servitude — in general. 97. Taking of property for public use — what is, 98. Same continued — illustrations. 99. When dedicated for street purposes — not an imposition. 100. The different uses to which streets and highways may be put. 101. Cases holding not entitled to compensation. 102. Same continued — opinions. 103. Same continued — new use of the easement. 104. Same continued — upholding same. 105. The ground upon which these cases are sustained. 106. Same continued — not things of motion. 107. Contrary view — additional servitude — so held. 108. Same continued — rights included in an easement. 109. Same continued — fee in abutting owner. 110. Same continued — abutter's interest. 111. Same continued — exclusive and public use. 112. Same continued — opinion on subject. 113. Same continued — mandatory injunction allowed. 114. When the fee is in the public. 115. The distinction — in abutting owner. 116. Same continued — in the public. 117. When title or fee is in third party. 118. Effect of legislative grant — not a nuisance. 119. Amount of compensation to abutter. 120. Damages to abutting owners — amount. 121. Remedies of adjoining lot-owner. 122. Same continued — ignorance of rights. 123. Same continued — action for damages. 124. Further considered — unauthorized use of street — may be en- joined. 125. Liabilities for cutting trees overhanging sidewalks. 126. Same continued — punitory damages. 127. Willful intent — question for jury. 128. Trees on the sidewalk. TABLE OF CONTENTS. XI CHAPTER VIII. OVER PRIVATE PROPERTY. 129. By consent. 130. By condemnation proceedings. 131. General rule— conditions precedent. 132. Same continued— petition— contents. 133 Same continued— name of petitioners. 134. Same continued— name of land-owners— their residence and interest in lands— several tracts or interests. 135. Same continued— description of route. 136. Same continued— description of poles. 137. Same continued— notice— appointment of commissioners. 138 Same continued— sworn to by officers. 139. Same continued— failure to acquire land by agreement with land-owner. 140. The interest acquired. 141. Measure of damages. CHAPTER IX. ON RAILROAD RIGHT OF WAY. § 142. Right acquired by act of Congress. 143. Additional servitude. 144. Subsequent purchaser may recover. 145. When for benefit to railroad. 146. Same continued— no additional burden. 147. Same continued— must be in good faith. 148. Same continued — not taxable. 149. Railroad companies to be compensated. 150. Right to— must first be acquired. 151. Interest acquired by telegraph companies. 152. By condemnation. 153. Exception to rule. 154. Same continued-cannot be defeated by claiming it should be on other lands. 155. Foreign telegraph companies— right to condemn. 156. Same continued— consolidation— agency. 157. Same continued— general and special laws. 158. Must be in good faith. 159. What portion of right of way may be taken. 160. Nature of petition. 161 Same continued— necessity for taking. 162. May condemn land in several counties in one proceeding. 163. Same continued— constitutional. TABLE OF CONTEXTS. 164. Who may be appointed as commissioners and how. 165. Duty of commissioners. 166. Special court for. 167. The award of commissioners. 168. May have new award. 169. Same as in other condemnation proceedings. 170. Duty the company owes to the railroad company. 171. The measure of damages — extent of injury. 172. Same continued — expense incurred — no reason. 173. Same continued — measurement — true rule. 174. Exclusive right — on railroads. 175. Contract with railroad company to that effect. 176. State legislation — no exclusive grant. 177. Act of Congress — prohibits exclusive right. 178. Same continued — contra view — lines on same poles. 179. Municipal grants — exclusive — cannot grant. 180. Vested rights — cannot be impaired. 181. Same continued — right reserved. 182. Same continued — police power. 183. Right to extend lines. CHAPTER X. LIABILITY FOR INJURIES CAUSED BY IMPROPER LOCATION. CONSTRUCTION AND MAINTENANCE. § 184. Injuries to persons on highways — in general. 185. Same continued — injury on highways. 186. Same continued — abandonment — no defense. 187. Same continued — strength and stability of poles. 188. Same continued — failure to restore line after storm. 189. Same continued — crossing highways and railroads. 190. Same continued — falling poles and other fixtures. 191. Obstruction to navigation by cable. 192. Negligence — the basis of such actions. 193. Negligence — what constitutes. 194. Same continued — failure to perform duty. 195. Same continued — an injury sustained. 196. Evidence of negligence. 197. Contributory negligence. 198. Injuries to servants — under common law. 199. Same continued — changed by statute. 200. Must furnish suitable appliances and employees. 201. Injury to these companies. 202. Interference by other electrical appliances — in general. 203. Same continued — how operated — interference. 204. Same continued — cause of disturbances. 205. 206. TABLE OF CONTENTS. Xl^^ "Inductive" electricity— meaning of— effect. Same continued— actions— causes thereof. 207. Same continued— decision on point. 208. Same continued— decision on "conduction." 209. Same, continued— priority of time— induction. 210. Same continued— priority of time— conduction. CHAPTER XL REGULATION AND CONTROL. 211. Federal control. 212. Same continued — concurrent state rights. 213. Telegraph lines over subsidized railroads. 214. State control. 215. State may control the construction. 216. Same continued — taxing power. 217. Same continued— penalty for delay in delivering messages. 218. Same continued— the Pendleton case— v?hat embraced. 219. Same continued— must fall within meaning of statute. 220. Same continued— offices established— must keep open. 221. Same continued— other regulations. 222. Same continued— limitation— impairment of contract. 223. Regulate charges. 224. Same .continued— constitutionality of statutes. 225. Same continued— right to fix charges— reason. 226. Same continued— cannot evade statutes— charged in two items — patents. 227. Statute rates must be reasonable, 228. As to interstate messages— cannot fix maximum charges. 229. Must furnish services notwithstanding charges. 230. Municipal control. 231. Powers limited— generally specified. 232. Power to revoke franchise. 233. Cannot impose tax license— not police power. 234. Cannot regulate rate— without express authority. CHAPTER Xn. DUTIES TO FURNISH EQUAL FACILITIES TO ALL. § 235. Telegraph — in general. 236. Same continued — duty to furnish. 237. Must have sufficient facilities 238. Must transmit in order in which received. 239. Discriminations — cannot make. xiv TABLE OF COXTEiS^TS. 240. Same continued — discrimination — nuist be just. 241. Same continued — reasonable discriminations. 242. Reasonableness of rates — how determined. 243. Telephone companies — furnish equal facilities. 244. Same continued— whether private or incorporated concerns. 245. Statutes — declaratory of common law. 246. Must furnish equal service and facilities. 247. Same continued — terms. 248. Whom to serve — persons conducting legitimate business. 249. Same continued — other corporations. 250. When may refuse to furnish services— abusive language. 251. Same continued— on refusal to pay charges or rent— other reasons. 252. Being lessees of patents — no excuse. 253. Lessee's ground for refusal. 254. Remedies — mandamus. 255. Proper parties. 256. By injunction. CHAPTER XITI. TRANSMISSION AND DELIVERY OF MESSAGES— GENERAL NATURE OF LIABILITY. § 257. Telegraph companies. 258. Same continued — opinion on point. 259. Not liable as ordinary bailees for hire. 260. Same continued — telegraph and telephone — liabilities — dis- tinctions. 261. Same continued — telephone. 262. Message for person — make reasonable search. 263. Same continued — when compensated. 264. Long distance telephone — disconnected at intermediate points. 265. Duty of telegraph companies to transmit — arises not on contract alone. 266. Same continued — further duties. 267. Same continued — must accept proper messages — not im- proper or such as would subject the company to indictment. 268. Same continued^— such as would subject to action of tort. 269. Same continued — lines down — other reasons. 270. Must be properly tendered — in writing. 271. Same continued — must be on company's blank. 272. Delivery to messenger boy — not delivery to company. 273. Same continued — prepayment of charges before accepting. 274. Same continued — failure to receive — damages — functions. 275. Transmit without delay. TABLE OF CONTENTS. XV 276. Burden of evidence — delay — presumption. 277. Duty to inform sender when delay unavoidable. 278. Must transmit without error. 279. Degree of care in transmission. 280. Liability under statutes — all mistakes. 281. Same continued — damages — actual — errors in transmission. 282. Duty to deliver — addressee — in general. 283. Excuse for non-delivery. 284. Same continued — not excused for. 285. Duty to inform sender of non-^lelivery. 286. To whom made — delivery. 287. Delivery to wife. 288. Delivery to hotel clerk — not sufficient. 289. Where two pai'ties have same name — delivery to one. 290. In care of another. 291. To authorize agent. 292. Manner of delivery — written copy. 293. No duty to forward messages. 294. Time to deliver. 295. Same continued — two messages of same nature received within office hours. 296. Free delivery limit. 297. When sendee lives several miles from office. 298. Same continued — may waive right. 299. No delivery limit fixed. 300. Must use due diligence to deliver. 301. Same continued — illustrations. 302. Diligence exercised — evidence — burden of proof. 303. Failure to designate with accurateness the address. 304. Penalty imposed for failure to deliver. 305. Duty to preserve secrecy of message. 306. Same continued — imposed by statute. 307. Same continued — applicable to telephone companies. 308. Messages "in care of" common carriers. CHAPTER XIV. NEGLIGENCE. 309. In general. 310. Presumption of negligence — onus proband!. 311. Same continued — illustrations. 312. Presumption may be rebutted. 313. Non-payment of charges — no defense — regulation. 314. Contributory negligence. 315. Messages must be legible. 316. Same continued — address must be definite. XTl TABLE OF CONTENTS. 317. Operator writing message for sender — tiis agent. 318. Messages not stamped — contributory negligence. 319. Delay in sending — no contributory negligence. 320. Injured party — should minimize loss. 321. Presumed to perform contract. 322. Should resort to other means when necessary. 323. Misinterpreting message — addressee. 324. Should read carefully — sendee. 325. Cause — proximate — remote. 326. Contributory — negligence — same rule. 327. Evidence — wealth or poverty of either party — company. 328. Same continued — party injured. 329. Declaration of agents. 330. Subsequent acts of company — of plaintiff. 331. Evidence of plaintiff's good faith— erroneous messages. 332. Same continued — other cases. CHAPTER XV. COMPANIES LIABILITIES AS AFFECTED BY THE RULES AND REGULATIONS. § 333. Right to make reasonable regulations — in general. 334. Must be reasonable. 335. Must be reasonably applied. 336. Same continued — reasonableness — who should decide. 337. Distinction between by-laws and rules and regulations or resolutions. 338. Same continued— particular regulations. 339. Information as to meaning of message — can not demand. 340. Delivery at company's office — reasonable. 341. Prepayment of charge — reasonable regulation. 342. Extra charges for delivering beyond free-delivery limit — not always reasonable. 343. Deposit for ans-v*er — not always reasonable. 344. May waive prepayment. 345. Regulation of office hours. 346. Same continued — statutory penalty for delay — hours not the same. 347. Reasonableness of the rule. 348. Same continued — waiver of regulations. 349. Employees need not be informed of other office hours. 350. Office hours as affects company's duty— night message. 351. Knowledge of sender as to office hours. 352. Telephone companies — enforcement of tolls. 353. May waive regulations. TABLE OF CONTENTS. XVll CHAPTER XVI. DUTIES UNDER THE COMMON I.AW. 354. In general. 355. Act of God — not liable for — contract. 356. Same continued — express contract. 357. Same continued — burden of proof. 358. Public enemy. 359. Same continued. 360. Same continued — mobs, strikes, etc. 361. Same continued — strikes, not liable — must supply places. 362. Same continued — in cases of express contracts. 363. Connecting lines. 364. Negligence of the sender or sendee. 365. Proximate cause — burden of proof. CHAPTER XVn. LIMITING COMMON LAW LIABILITIES. 366. Stipulation in contract of sending. 367. Negligence — cannot contract against — in most states. 368. Applicable to statutory penalty. 369. May contract against negligence in some states. 370. Prohibited by statutes in some states. 371. Gross negligence. 372. Same continued — what constitutes. 373. Ignorance of operator of the locality of the place. 374. Conflict of laws. 375. Stipulation for repeating messages. 376. Same continued — validity of such a stipulation. 377. Same continued — further reasons for their own protection. 378. Same continued — extra charge — no increase of duty. 379. Same continued — delay in delivery — non-delivery. 380. Same continued — not a contract — compared to a bill of lad- ing. 381. Same continued — contract — no consideration. 382. Same continued — duress. 383. When requested to be repeated — question of fact. 384. Same continued — binding on sender only. 385. Times within which claims are to be presented. 386. Same continued — reasons for rule. 387. Same continued — statutory penalty — applicable. 388. Same continued — not to be prosecuted by the public. 389. Stipulation held void as against public policy. 390. When limitation begins to run. SVlll TABLE OF CO^TE^'TS. 391. Same continued — delay in receiving messages — does not modify stipulation. 392. Same continued — unaware of wrong — not binding. 393. Compliance with stipulation — what constitutes. 394. Same continued — waiver of written claim. 395. Same continued — nature of the claim. 396. Must be presented to proper officer. 397. Commencement of suit — whether sufficient notice. 398. Contrary holding — better view. 399. Limiting liability to specific amount. 400. Same continued — nature of — liquidated damages. 401. Same continued — insured — same rule. 402. Night messages — time to be delivered. 403. Unavoidable interruption — special contract. 404. Over connecting lines — stipulation — exemptions. 405. Stipulation against cipher messages — valid. 406. Same continued — contrary view. 407. Where and when messages accepted. 408. Delivery to messenger — valid. 409. Waiver of stipulation limiting company's liability. 410. Burden of proof. 411. Proof of assent to stipulation. 412. Contrary holding. 413. Special contracts — not applicable. 414. Small type — not fraud. 415. Assent of addressee. 416. Same continued — illustrations. 417. Same continued — actions in tort. 418. The correct view as considered. 419. Assent — proof of — what amounts to. 420. Stipulation posted in company's office — not binding. 421. Messages written on blanks of another company — binding. 422. Same continued — knowledge of company's stipulations. 423. Messages delivered to company by telephone or verbally. 424. Principal bound by the knowledge of the agent. CHAPTER XVIII. LIABILITY OF COMPANIES IN PARTICULAR CLASSES OF CASES— CONTRACT TO FURNISH MARKET REPORTS AND OTHER NEWS. § 425. In general. 426. Market reports, etc. 427. Same continued — organized for collecting news. 428. Gambling transactions — messages in regard to. 429. Indecent language — not bound to accept. TABLE OK CONTKXTS. XIX 430. Liable civilly or ciiniinally^indecent language. 431. Libel— liable for. 432. Interstate messages. 433. Recovery of statutory penalty — not applifable. 434. Sunday messages — no duty to send. 435. Sunday contracts — void. 436. Same continued — matters of necessity or charity. 437. Same continued — illustrations. 438. Statutory penalty — applicable. 439. Action of tort — rule not applicable. 440. Forged and fraudulent messages. 441. Same continued — negligence must be proximate cause. 442. Same continued — operator author of forged message. 443. Same continued — sub-agent, forgery of. 444. Same continued — no bar to action ex delicto. 445. Amount of damages. 446. Connecting lines — passage over — initial line — general rule. 447. Same continued — English rule. 448. Accept all the charges — rule not changed. 449. Initial company — diligence to deliver to other line. 450. Same continued — telephone — same rule applied. 451. Special contract — may become liable by. 452. Same continued — who may contract. 453. Where statutes make the initial carrier liable. 454. Actions on extra-terminal contracts — against whom. 455. Connecting lines. 456. Same continued — duty to accept messages tendered. 457. Same continued — duty of. 458. Liability of connecting lines. 459. Burden of proof. 460. Partnership arrangement between the several lines. 461. Effect of contract of sending on connecting lines. 462. Liability for defaults of common agent. 463. Sender's right to select route. 464. Same continued — result of bad selection — initial company not liable. 465. Same continued — exact extra fee or charges. 466. Liability of companies between themselves — actions. CHAPTER XIX. ACTIONS FOR DAMAGES RESULTING FROM NEGLIGENT DELAYS OF TRANSMISSIONS. 467. Parties — sender — in general. 468. Same continued — sender — action in tort or contract. 469. Same continued — message — sent by agent. XX TABLE OF CONTENTS. 470. Addressee — right of action — in general. 471. Same continued — grounds on which rules are based. 472. English rule — in general. 473. Rule applicable to telegraph companies. 474. American rule — in general. 475. Same continued— with respect to telegraph companies. 476. Addressee beneficial party. 477. Same continued— sender agent of addressee. 478. Action for breach of public duty. 479. Same continued — action in contract or tort. 480. Same continued — damages under either. 481. Agent for addressee. 482. Right under statute. 483. Right of action — altered message. 484. Sender paying charges— effect upon the addressee's right. 485. Third party — right of action. 486. Under special statutes — penalty. 487. Addressee's right not affected— by failure to have message repeated. 488. Actions between sender and addressee. 489. Contract made where last act of assent was dbne. 490. Same continued— actions between sender and addressee- contract — where made. 491. Same continued — action where brought. CHAPTER XX. MATTERS OF PLEADING, PRACTICE AND EVIDENCE- GENERALLY. 492. Scope of chapter. 493. Character of action. 494. Same continued— distinction between an altered message, and one not sent or delivered. 495. Action— by mandamus. 496. Action— injunction— specific performance. 497. Service of process. 498. Pleadings in general. 499. Same continued — nature of. 500. Same continued— special statutes— amount of damages. 501. Same continued— copy of telegram— part of pleading. 502. Same continued— amendments liberally allowed. 503. Action — whether in contract or in tort. 504. Actions for statutory penalty. 505. Plea to the declaration. 506. The issue. 507. Presumption of negligence— burden of proof. TABLE OF CONTENTS. XXI 508. Same continued— effect of stipulation. 509. Evidence. 510. Same continued— illustrations. 511. Question for jury. 512. Instructions to juries. 513. Withdrawing the case from the jury. CHAPTER XXI. MEASURE OF DAMAGES. 514. Scope of chapter. 515. Damages defined. 516. General rule— Hadley v. Baxendale. 517. Same continued-not only actual but contemplative dam- ages. 518 Actions in contract and in tort— applicable to both. 519. Same continued— character of damages arising from each- • kind of actions— amount of information. 520. Damages recoverable— illustrative cases. 521. Same continued. 522. Same continued. 523. Remote damages. 524. Same continued— speculative damages. 525. Intervening causes. 526. Benefit of contract— loss. 527. Same continued. 528. Effect of special circumstances. 529. How communicated to the company— information. 530. Same continued— damages— remote and speculative. 531. Cipher or otherwise unintelligible messages. 532. Same continued— case in point— reason of rule. 533. Contrary view. 534. Same continued— information on face of the message. 535. When message discloses its importance. 536. Same continued— need not be informed of all facts. 537. Question for jury. 538. Same continued— extrinsic facts of importance. 539 Rule in "mental anguish cases." 540 Same continued— relationship of person affected. 541 ' Same continued-reason of rule-nearness of relationship. 542' Same cbntinued-interest of the party m the transaction. 543 same continued-deprived of the addressee's consolation. xxii TABLE OF co>;tj:xts. CHAPTER XXil. MEASURE OF DAMAGES— CONTINUED— LOSS OF EXPECTED PROFITS ON SALES BY ERRORS OF NEGLIGENCE Un TRANSMISSION. § 544. In general. 545. Sales prevented — plaintiff vendor — in general — legal sales. 546. Same continued — measure of damages. 547. Loss must be actual and substantial. 548. Orders for goods not delivered — in general. 549. Same continued — measure of damages. 550. Order for goods erroneously transmitted — purchaser's duty. 551. Same continued — goods shipped to wrong place. 552. Same continued — stock, bonds, etc. 553. Messages directing agent to sell or purchase. 554. Same continued — order to close option to purchase. 555. Announcement of prices or state of market. 556. Contemplating shipping — delay in message — loss. CHAPTER XXni. MEASURE OF DAMAGES— CONTINUED— LOSS OF EMPLOYMENT, ETC. 557. In general. 558. Loss of situation or employment. 559. Same continued — actual damages. 560. Same continued— circumstances tending to reduce loss. 561. Loss of professional fees. 562. Same continued — losses of otherwise professional nature. 563. Same continued — such as not recoverable. 564. Losses which might have been prevented. 565. Same continued — must show same would have been pre- vented. 566. Failing debtor — messages from creditors regarding same. 567. Failure to ti'ansmit money. CHAPTER XXIV. DAMAGES CONTINUED— FOR MENTAL ANGUISH. 568. In general. 569. Same continued — subject divided. 570. Damages for mental anguish and suffering. "71. Action in contract or tort — rule the same. TAULK OK CONTKNT.S. XXlll 572. Rule departed from. 573. Same continued — So Relle Case overruled and reinstated. 574. Federal court view — how held. 575. Ground upon which these cases are maintained. 576. View of subject in Louisiana. 577. Instances in which damages aie allowed. 578. Limitation of rule. 579. Same continued — suffering mu.st be real. 580. Same continued — must be the result of the cau.se of com- plaint. 581. Same continued — suffering must be of the plaintiff. 582. Same continued — anguish from independent causes. 583. Same continued — must have prevented the injury. 584. Same continued — postponement of funeral services. 585. Same continued — failure to transmit money — no cause. 586. Evidence of mental suffering. 587. Same continued — aggravation of suffering. 588. Same continued — sickness as a result — admissible. 589. Same continued — matters of defense — want of affection. 590. Relationship material. 591. Nature of damages. 592. Actions do not survive — limitation. 593. Damages for mental suffering — doctrine denied. 594. When may be basis of action — malicious or willful wrong. 595. Reasons for not allowing such damages. 596. Same continued — other reasons — nominal damages. 597. Same continued — mental suffering following physical pain. 598. Conflict of law — with respect to mental damages. 599. Rule declared by statutes. CHAPTER XXV. DAMAGES CONTINUED— EXEMPLARY OR PUNITIVE- EXCESSIVE AND NOMINAL. 600. In general — meaning of term. 601. Same as applied to corporations. 602. Done by agents and employees — malice. 603. Whether a question of fact or law. 604. The purpose of such damages. 605. Assault and battery. 606. Libel. 607. Malicious prosecution. 608. Trespass — accompanied with malice. 609. Negligence — question for jury. 010. Same continued — against telegraph companies, tjll. Same continued — actual damages. XSIV TABLE OF CONTENTS. 612. Excessive damages. 613. When rule invoked. 614. Same continued — mental suffering — excessive. 615. Same continued — not excessive. 616. Nominal damages. CHAPTER XXVI. STATUTORY PENALTY. § 617. Object and purpose. 618. Construction of statutes — in general — penal. 619. Same continued — intention of statute — must not be defeated by construction. 620. A penalty — not damages — for person injured. 621. Who mantain suit. 622. Extraterritorial effect — not any. 623. Constitutionality of statutes. 624. Indiana statute. 625. Character and form of message — -"futures." 626. Same continued — form — cipher telegrams. 627. Same continued — written on message blank — waiver of right. 628. Breach of duty— proof of. 629. Same continued — amount of proof. 630. Complaint and proof must fall under statute. 631. Complaint — allegations therein. 632. Actual damages — need not prove. 633. Same continued — does not bar action for damages. 634. Actions survive. 635. Connecting line — liable. 636. Defenses — office hours. 637. Same continued — free delivery limits. 638. Same continued — not under operation of statute — contribu- tory negligence. 639. Same continued — harmless errors. 640. Same continued — Sunday dispatches. 641. Stipulations — time for presenting claim — effect of. 642. Accord and satisfaction. 643. Prepayment of charges. 644. Repeal of statute — effect of. CHAPTER XXVH. TAXATION. § 645. Introduction. 646. Power of state to tax. 647. How assessments may be made. TABLE OF CONTENTS. ^^^ 648. Methods of taxation. 649 Classification— discretion of legislature. 650. The same must be paid when properly assessed. 651. Discrimination. 652. Lien of assessment. 653. Interstate commerce— obstruction of. 654. Property of telegraph and telephone companies used in in- terstate commerce— subject to state taxes. 655. Taxation on capital stock in proportion to length of line in state. 656. Mileage basis of valuation. 657. Assessment of telegraph lines for taxation-^ew \ork state. 658 License tax — cannot be imposed. 659. Distinction between property tax and privilege tax. 660. Excise tax. 661. Taxation on gross receipts— interstate business. 662. Same on message. 663. Municipal tax— compensation— use of streets. 664. City license tax on telegraph companies. 665. Special franchise taxes. 666. Where rights of being a corporation are derived from the United States. 667. Interest when payment of taxes is delayed. 668. Taxes of telephone companies. CHAPTER XXVIII. TELEGRAPH AND TELEPHONE COMMUNICATIONS AS EVIDENCE. 669. In general. 670. What is a telegram. 671. Letters and telegrams— compared. 672 Same continued— admission of. 673. Same continued— presumption— exceptions. 674. Authorship must be proved. 675. Proof of signature. 676 Telegrams as declarations of sender. 677 Telegrams as evidence of communication. 678. Rule applicable to documentary evidence. 679. Primary evidence — in general. 680. Rule applicable to documentary evidence only. 681. Rule applicable to telegrams. 682. Depends upon which document is at issue ,,„„,, 683. Same continued-contents of message delivered to ad- 684. Messages given orally for transmission. XXVi TABLE OF COXTEXTS. 685. Actions to recover statutory penalties and damages. 686. Secondary evidence. 687. Proof of absence of the original. 688. Notice to produce. 689. What evidence admissible as secondary. 690. Late improvements in telegraphy. 691. Same continued — secondary evidence. 692. Testimony of witnesses. 693. Secondary evidence of unstamped contracts. 694. When telegram need not be produced. 695. Declaration of employees subsequently employed. 696. Notice by telegram. 697. Telephone communication as evidence. 698. Identity of person. 699. When operator converses. 700. Operator as interpreter. 701. Oaths administered by means of telephone. CHAPTER XXIX. TELEGRAPH MESSAGES IN RELATION TO THE STATUTE OF FRAUDS. § 702. Evidence. 703. Subject matter to which statute applies. 704. How statute may be satisfied. 705. Company — agent of sender. 706. Message delivered to company — effect of under statute of frauds. 707. Telegram delivered to addressee — effect under statute, 708. What telegram should contain. 709. Time of delivery with respect to making of contracts. 710. Written contracts adopted. CHAPTER XXX. TELEGRAPH MESSAGES AS PRIVILEGED COMMUNICATIONS. § 711. Introduction. 712. Same continued — in hands of telegraph companies. 713. Postal law not applicable to telegraph messages. 714. Same continued — would assist in illegal purposes. 715. Statutes forbidding disclosure of telegrams. 716. Same continued — not protected by postal laws. 717. When may be privileged communications. 718. Steps to obtain telegrams — in general. TAliLK OK COXTKXTS. XXVll 719. Same continued— how further obtained— court inspection. 720. Rule for describing message in writ. 721. Same continued— illustrations— valid services. 722. Same continued — when invalid. CHAPTER XXXT. CONTRACTS BY TELEGRAM. § 723. In general. 724. Alteration of telegram does not affect rule. 725. When not the result of the company's negligence. 726. Same continued — private institution — does not affect. 727. What must contain. 728. When offer Is complete. 729. Order made by telegram. 730. Communication both by post and telegraph. 731. When contracts take effect. 732. There must be a distinct and definite offer. 733. Offer requiring actual receipt of acceptance. 734. Same continued — how request implied. 735. Acceptance must be made within time. 736. Revocation of offer. 737. Contract — what law governs. 738. Telegraph company ordinarily the agent of sender. 739. Sender bound on message as received. 740. Within the meaning of the statute of frauds. 741. Exception to the rule. 742. English rule. 743. Telegraph company an independent contractor. 744. Same continued — may be sued. CHAPTER XXXII. DISTRICT TELEGRAPH COMPANIES AND SUCH AS FURNISH "TICKERS." § 745. Introduction. 746. Same continued — duties and liabilities of. 747. Company furnishing "tickers." 748. Same continued — duties and liabilities. 749. Cannot discriminate. 750. Unreasonable stipulations — unenforcible. 751. Protection against unfair competition. THE LAW OF TELEGRAPH AND TELEPHONE COMPANIES. CHAPTER 1. GENERAL NATURE OF TELEGRAPH AND TELEPHONE COMPANIES. § 1. Definition. 2. Distinction between telegraph and telephone companies — similarities. 3. Same continued — dissimilarities. 4. Same continued — liabilities of one greater than the other. 5. Telegraph in statutes — embrace telephone. 6. Same continued — reason. 7. Same continued — reason as compared to improvements on other corporations. 8. Same continued — under statutes. 9. Same continued — construction of statutes. 10. Same continued — illustrated. 11. Same continued. 12. Same continued. 13. Same continued — when applied. 14. When different rule obtains — intent of law-makers. § 1. Definition. There arc many ditferent definitions of the words, "telegraph/' and "telephone," and the reader must consult his own judg- ment as to the correctness of each. Some of the writers de- tine them as, "an instrument or apparatus, which by means of iron wires, conducting the electric fluid, conveys intelligence to any given distance with the velocity of lightning:"^ or, "a machine for communicating intelligence from a distance by various tagnals or movements previously agreed on ; which signals repre- sent letters, words, and ideas, which can be transmitted from one 'Webster's Int.' Die. T. & T.— 1 (1) 2 TELEGRAPH AND TELEPHONE COMPANIES. [^ 1 station to another as far as the signals can be seen :" - or, "public vehicles of intelligence." ^ These, and other definitions,* seem to us to contain too much irrelevant matter. For instance, it is not necessary to enumerate the different parts which make up and con- stitute the machines and apparatus by means of which messages are sent; because there are so many improvements being made daily on these machines, and in the course of time, so many additional im- provements may be made as not to permit them to fall within the defi- nition now given. A definition of anything should be sufficiently com- prehensive to cover the subject for all time to come. We think that the following will meet all of these requirements; not only will it comprehend and cover every part of the different machines which does or shall constitute the entire apparatus, but it will be full enough to take in all the different means by which intelligence is communicated : It is an apparatus or process hy means of which intelligence ts transmitted, either hy signals or sounds to points beyond the limit of ordinary audibility. There are different machines which, put together, constitute this apparatus or means through which com- munications are made. For instance there is a battery, or other sources of electric power ; a line wire or conductor for conveying the electric current from one station to another ; the apparatus for trans- mitting, interrupting, and if necessary, reversing the electric current at pleasure : and the indicator, or signal instrument.^ There are ' Webster's Int. Die. ing instrinnent." See Imperial Die. ; 'Fire Iiisurance Association of Eng- Hockctt v. State, 10.5 Ind. 250, 5 N. E. land V. Merchants' & Miners' Trans. 178, 55 Am. Rep. 210; Chespeake, etc., Co., 66 Md. 339, 7 Atl. 905, 59 Am. Tel. Co. v. Baltimore, etc., Tel. Co., Rep. 162. "The word 'telegraph' is now 06 Md. 399, 59 Am. Rep. 167, 7 Atl. generally understood as refering to the 809. See, also, Atty.-Gen. v. Edison Tel. entire system of appliances used in the Co., 6 Q. B. D. 248. Telegraph line or transmission of telegraphic messages by system, as used in ordinary statutes, electricity, consisting of: (1) a battery will not embrace a distinct telegraph or other source of electric power; (2) system. See Toledo v. West. U. Tel. a line wire or conductor for conveying Co., 107 Fed. 10, 46 C. C. A. 111. the electric current from one to an- * Central Union Tel. Co. v. Falley, 118 other; (3) the apparatus for transmit- Ind. 194, 19 N. E. 604, 10 Am. St. Rep. ting, interrupting, and ij necessary, re- 114. versing, the electric current at pleas- ° Hockett v. State, 105 Ind. 250, 5 N. ure; and (4) the indicator, or signal- E. 178, 55 Am. Rep. 210. § 2] GENERAL NATURE. O different means by which intelligence is transmitted; as by tele- phone ; by the telegraph which may be either by a line wire or with- out any wire at all — or wireless telegraph; and by means of the speaking tube. The several apparatuses may be quite different in their construction but by means of each the same object is accom- plished. They all convey intelligence either by signals, by letters or by sounds ; or, by the voice transmitted beyond the limit of ordinary natural sight or audibility ; the last part of this definition may have the tendency to exclude therefrom the speaking tube. While the last-named device is, strictly speaking, a telephone, under its generic term, yet it will hardly be so considered in a special way and will not be thus understood under the present discussion; since in the recent improvements in telephonic instruments, the telephone is technically and primarily restricted to an instrument or device which transmits sound by means of electricity and by wires similar to tele- graphic wires. We do not care to be understood as saying that this definition is broad and definite enough to describe the different systems in such a manner as would enable any one to make a distinction be- tween them ; nor do we intend to convey the idea that they are one and the same thing. And here, it might be said, a definition is a peculiar one which attempts to define two or more different and dis- tinct objects when it describes neither of them sufficiently so that the one may be distingiiishcnl from the other.^ In a sense, this is true, but as a means to an end — an accomplishment of the same purpose — this definition is sufficiently broad, clear and distinct to comprehend all systems, and definite enough for that purpose to de- scribe each. Ihey are so similar in nature that when the law speaks of one, it generally means the other also. § 2. Distinction between telegraph and telephone companies — similarities. In preparing a work in which two different subjects are to be. treated as nearly as possible as being one and the same, it may be proper at the outset to draw and set forth the distinguishing feat- «Hockett V. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 210. 4 TELEGRAPH AND TELEPHONE COMPANIES. [§ ^ nres between the two in order to determine the application of the law to each. Therefore, in applying the rule generally it will be our purpose to apply it specifically by attempting to briefly state the simi- larities and dissimilarities between telephone and telegraph com- panies as they are being discussed under one title. In £vlmost every respect these companies are very similar, if not identical, with re- spect to their construction. Each of them must erect its posts or poles and upon the tops of these attach its lines of wires from point to point, when it is not otherwise provided that they are to be placed under the surface. Each must have offices or connecting ex- changes with operators or employees thereat. Each must almost nec- essarily enter upon, along, or across public roads, highways, streams, bodies of water and upon lands of individuals for the purposes men- tioned." In this respect they are identical, and the same law — common and statutory — applies to both. § 3. Same continued — dissimilarities. While the object of these two companies is to accomplish the same purpose — the transmission of intelligence from place to place by means of electricity — the manner in which this object is accom- plished is not the same, and this is w^herein they are materially dif- ferent — and this, too, to a certain extent watli respect to the applica- tion of the law to the two. In order to be able to transmit news in- telligently over telegraph lines, there must be some one skilled in telegraphy to operate the telegraphic instruments and machines. It requires much time and experience for a person to become familiar with the science and art of telegraphy so as to be able to control suc- cessfully and promptly, the amount of news necessarily and natur- ally carried by these companies. While, on the other hand, any one without experience can converse with easy understanding over a tele- phone line where the connections are properly made. There may be instances where the telephone could not take the place of the tele- graph, but as a general thing, they will be more convenient and of less expense than the latter. Almost all the commercial business, espec- ially in large cities, is carried on over telephone lines. ]\Ien of all ^Wisconsin Tel. Co. v. City of Osh- kosh, 62 Wis. 36, 21 N. W. 828. <^ 4] GENERAL, NATURE. 5 professions and avocations of life may and do have their offices and business houses supplied witli telephone facilities. When they have good connections at the exchanges it is no troulile to transact any kind of business over the telephone lines ; but, to have the same con- nections with telegi-aph lines, would necessitate all the patrons to liave skilled teleoraph operators both to receive and transmit their l)nsiness messages. § 4. Same continued — liabilities of one greater than the other. It is further true that on account of the different methods by which the ('(.nnnunication of intelligence is made, liabilities for the negligent transmission of a message is not so liable to arise in one as in the other. Messages sent by a telegraph company are communi- cated, not directly by the parties themselves, but by third parties ; or, more strictly and correctly speaking, by operators who are presumed to be skilled in their business as employees of the company. To err is human and they, who are human, are most liable to err in the transmission of news, either by not being prompt in the transmis- sion, or by not sending the same correctly; when they are guilty of either or both of such errors, the company will be liable. On the other hand, all that is required of the operators or employees of a telephone company, is to give proper connection and similar accom- modations to all who apply to them. Then, wdth respect to the ac- curacy of the message, the parties themselves can hold none save themselves liable. They come in direct contact and can converse with each other with the same distinct and clear understanding as if they were not only together in voice but in person ; and errors out of which actions might otherwise arise, should it have been made in a telegi-am, may be easily corrected by the parties themselves. To this extent telephone companies are not subjected to the same liabilities with which telegTaph companies are most often confronted. It is true that the telephone companies stand in the same relation to those who are caiTying on communications over their lines as that of telegraph companies, and the same law is applicable to both but the distinc- tion desired to be drawn and the apparent difference and misunder- standing of the law applicable thereto, arises from the two methods bv which the cuuinuniications are made. While in one the liability 6 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 5 of the company Avhicli would be caused by the negligeuce of the em- ployee in tlie transmission of the message, might be avoided by the other on the ground that the negligence was not that of the company but the patrons themselves. In one, the company would be to a cer- tain extent acting in the capacity of an agent for the two parties and be controlled under the laws of agency ; while in the other, during the course of communication, the company would not be considered as an agent and thcrebj'' subjected to the laws of agency. Suppose, for in- stance, there is a proposition made over a telegraph line to sell cer- tain property at a certain price but in the transmission of this propo- sition the companj^ negligently altered or changed the price for which the property was proposed to be sold, and the addressee of the mes- sage accepts the proposition at its altered price. In this case, it is not right that either the owner of the property or the acceptor of the same should suffer from the error negligently made by the company ; but the company which acts in the capacity of agent should suffer for his own negligence and be liable under the laws of agency.^ If the same transaction should have been carried on over a telephone by the contracting parties and the sale had been consummated for a price not intended but as understood by the contracting parties in their conversation, they and not the company would be the parties to suffer. Yet if the error had been made by the employees of the company it would be liable. For instance if the conversation was carried on by one of the contracting parties and an employee of the company who was conducting or carrying on the conversation as dic- tated to him, and he should mistake or misunderstand the conversa- tion whereby an injury was inflicted, the company would be liable for such injury. In offering and acting as one of the communicants, he subjects the company as their agency through which the transaction is conducted. § 5. Telegraph in statutes — embrace telephone. The science of telegraphy was very generally used long prior to the invention of the telephone. Statutes had been enacted in which certain rights and privileges had been granted and duties and obli- * See chapter on "Company Agent for Sender." ^ G] GENERAL NATL'KE, 7 gations imposed on these companies without any reference to any other mode of commnnication of intelligence by means of electricity, save that by telegraph. To be sure, it would have been impossible to have made references to something which was not in existence. This being the case, the question which puzzled the courts at the time when telephones first bcgim to be used to any extent was. How such statutes should be construed ? Could such statutes which mentioned only the name "telegraph" embrace and have reference to "tele- phones?" By determining this question, by reason of which the proper construction may have been placed on these statutes, the definition of telephone would and should have taken a con- spicuous part. Under our definition, it would most assuredly have been comprehended and embraced under the name of telegraph ; which, as Mr. Anderson very wisely says, includes any apparatus for transmitting messages or other communications by means of elec- trical signals,^ although such companies are not specifically men- tioned therein, ^"^ or knov.n at the time the act was passed. ^^ § 6. Same continued — reason. It has been held by most of the courts if not all that where a stat- ute imposes certain rights, duties and obligations on telegraph com- panies — expressly mentioning these companies without reference to any other mode of communication — the same embraces telephone "Anderson's Law Dictionary. Jersey Co., 53 N .J. L. 341, 21 Atl. 860; '"Roberts v. Wisconsin Tel. Co.. 77 Xcw York, etc., Tel. Co. v. Bound Wis. 589, 46 N. W. 800, 20 Am. St. Rep. Brook, G6 N. J. L. 168, 48 Atl. 1022; 144; Wis. Tel. Co. v. City of Oshkosh, Bell Tel. Co. v. Com., 38 Atl. 825; Tag- 62 Wis. 32, 21 N. W. 828; Cumberland gart v. Interstate Tel. Co., 16 Montg. Tel., etc., Co. v. United Electric Co., Co. Law Rep. Pa. 155. 42 Fed. 273 ; Davis v. Pacific Tel., etc., 'i New Orleans, etc., R. Co. v. Soutli- Co., 127 Cal. 312, 59 Pac. 698; Ches- grn, etc., Tel. Co., 53 Ala. 211; St. peake, etc., Tel. Co. v. Baltimore, etc., Louis v. Bell Tel. Co., 96 Mo. 623, 10 S. Tel. Co., 66 Maryland 399, 7 Atl. 809, ^y. 197, 9 Am. St. Rep. 370, 2 L. R. 59 Am. Rep. 167; St. Louis v. Bell Tel. a. 278n; Atty.-Gen. v. Edison Tel. Co., Co., 96 Mo. 623, 10 S. W. 197, 9 Am. OQ. B. D. 244, 20 Moak 602. Compare St. Rep. 370, 2 L. R. A. 278n; Roake Richmond v. Southern Bell Tel., etc.. V. American Tel., etc., Co., 41 K J. Co., 174 U. S. 761, 19 S. Ct. Rep. Eq. 35, 2 Atl. 619; Duke v. Central New 77s. 8 TELEGRAPH A^'D TELEPHONE COMPANIES. L§ 6 companies as well/- unless there are other special controlling con- ditions which would produce a different result. It is true that the methods by which the intelligence is transmitted by the telegraph and telephone companies are somewhat different, yet there is quite a similarity between the two. For instance it is necessary for them both to have wires over which the transmission is to be made, and which are similarly supported; they both use batteries for the pro- duction of electric currents necessary for conveying the signals and sounds ; and, they both exircise the right of eminent domain for the purpose of constnicting their line of wires — along which the similari- ties of the two are identical, and if it were not for the fact that we could examine the temiinals of the two lines, we could not dis- tinguish one from the other. They are performing the same duties toward the public; and, w^hile the one was not mentioned nor even contemplated at the time these statutes were enacted, yet this is no reason why the law-makers did not then intend to incorporate and comprehend therein all the improved methods which might thereaf- .ter be made for transmitting messages over telegraph lines. ^^ The telephone is but a novel method to accomplish the object for which the telegTaph was used. It is the introduction of a new device, re- cently discovered, by means of which an improvement has been made in the transmission of sound — an improvement in the ap- paratus so as to change the transmission of the signals or sounds to that of the voice, by causing electrical undulations similar in form to the vibration of air accompanying the vocal sounds. It is not pre- sumed that it w-as the puiqDose of the body of lawmakers to enact laws which should apply altogether to the operation of any business in- stitution as it was carried on at the time of the adoption of the act. " Statutes authorizing telegraph com- companies to occupy highways. See panies to exercise the right of eminent Peoples Tel., etc., v. Berke, etc., Turn- domain apply to telephone companies. pike Road, 199 Pa. St. 411; North- San Antonio, etc., R. Co. v. S. W. Tel., western Tel. Exch. Co. v. Chicago, etc., etc., Co., 93 Tex. 313, 56 S. W. 201, 77 R. Co., 76 Minn. 334; 79 N. W. 315. Am. St. Rep. 884, 149 L. R. A. 459; '^ "In these days there ought to be South Western Tel., etc., Co.. v. Gulf, no one to question the statement that et.-*., R. Co., 52 S. W. 106; Gulf, etc., a telephone is simply an improved tel- R. Co. V. Southwestern Tel., etc., Co., egraph." Northwestern Tel. Exch. Co. 18 Tex. Civ. App. 500, 45 S. W. 157, v. Chicago, etc., R. Co., 76 Minn. 334, also of the state authorizing telegraph 79 X. ^^■. 315. § 7] GENERAL NATURE. 9 If any presumption is to be indulged in, it is that general legislative enactments are mindful of the growth and increasing needs of so- ciety, and they should be so constructed as to encourage rather than to embarrass the inventive and progressive tendency of the people. ^^ We live in a land of progress and advancement and as the world grows older the wiser man becomes. Inventions and improvements of a few years back and which at the time seemed to be complete in construction in every respect, have become noviated and developed be- yond the greatest expectation of the inventor. This is not a new fact, not a new idea; for such has been the case since the dawn of creation and will continue until man shall have discovered and mas- tered the hidden and unseen mysteries of the universe, and when there will be nothing left to which he may devote his mind for the up- building of his fellow-man. § 7. Same continued — reasons as compared to improvements on other corporations. The improvements, indeed the revolution, in the method of tran- sacting the business of each of the great corporations, have never given rise to a suspicion that these additional methods for accom- plishing the same purpose were inconsistent with the original powers granted to them in their constituting instruments. Railroad corpora- tions which were created even before the invention of the telegraph, have since constructed these lines along their rights of way for pur- poses of convenience in carrying out the business enterprises forwhich they were created ; and it is a settled fact that they are not an addi- tional servitude to the roadway and one different from that for which it was acquired and for which further consideration would be neces- sary. Street car corporations which were created at a time when the method of propelling their vehicles was by the means of the horse power, have, since the discovery and development of the electric or motor system, adopted this igenious means for the purpose of run- '* Hudson River Tel. Co. v. Railway Co., 135 N. Y. 393, 31 Am. St. Rep. 838, 17 L. R. A. 674. 10 TELEGRAPH AND TELEPHONE COMPANIES. [§ 8 ning their cars, without any change of the old charter. ^^ The pur- pose for which these corporations were originally created was for the convenience of public travel along and upon the streets and high- ways. By the adoption of this new improved method of motor power, their purposes have been changed only for the betterment of their enterprises and for convenience to the public. The same rule should and does apply to the improvements of the telegraph with re- spect to the newly-discovered method of transmitting intelligence by means of the telephone. § 8. Same continued — under statutes. ^Iv. Freeman has made a very thorough discussion of this subject on the law of the telephone and it will be our pleasure to here quote what he says in regard to this particular subject: "In considering such questions as have been presented to them, the courts have al- most uniformly regarded the telephone and the public and private rights and duties growing out of it as similar in character and extent to the telegraph, and the public and private rights growing out of the invention and general use. Thus, in England the term 'tele- gram' has been adjudged to include a conversation by means of tele- phone, and the telephone business to be within the statute giving to the postmaster-general the exclusive control of the transmission of messages by telegraph. ^^ In Iowa, telephone companies are classed with telegraph companies, for the purpose of determining the juris- diction of the justice of the peace over them ; ^'' and deciding where and how they and their property shall be assessed. ^^ So, in discuss- ing whether telephone corporations were entitled to use the public streets, or to exercise the right of eminent domain, and whether they were subject to legislative control for the purpose of preventing un- reasonable discriminations and the imposition of exorbitant charges, • " Hudson Eiver Tel. Co. v. Railway, " Atty.-Gen. v. Edison Tel. Co., L. R. 135 N. Y. 393, 31 Am. St. Rep. 338; 6,Q. B. D. 244. Turnpike, etc. v. R. Co., 31 Am. St. "Franklin v. N. W. Tel., 69 Iowa Rep. 838, 17 L. R. A. 674; Cincinnati 97, 28 N. W. 461. Inclined Plane Ry. Co. v. City and "Iowa Union Tel. Co. v. Board of Suburban Tel. Assn., 29 Am. St. Rep. Equalization, 67 Iowa 250, 25 N. W. 559, 48 Ohio St. 390, 27 N. E. 890, 12 155. L. R. A. 534. §8] GENEEAL NATURE. 11 the courts have generally proceeded upon the assumption that the rights, duties and obligations of such corporations are analogous to those formed for the purpose of carrying on the business of transmit- ting messages and news by the use of the telegraph. In Wisconsin, the statute regarding the corporations provided, among other things, that corporations might be formed, 'to build and operate telegraph lines and conduct the business of telegraphing, and to conduct and maintain their lines with all necessary appurtenances.' It was held that this statute authorized the incorporation of a telephone com- pany.^® The statute of Pennsylvania controlling telegraphic cor- porations enacted that 'the said telegraphic corporation shall receive dispatches from and for other telegraph lines and corporations, and from and for individuals ; and on payment of their usual charges to individuals for transmitting dispatches as established by the rates and rcgiilations of such telegraph lines, transmit the same with im- partiality and good faith, under penalty of one hundred dollars for every neglect or refusal so to do.' On an application being made to the court of common pleas of the city of Philadelphia by the common- w^ealth on the relation of the Baltimore and Ohio Telegraph Com- pany for a writ of mandate to compel the Bell Telephone Company to give the relator a telephone and the necessary wires, the court de- termined that telephone companies were controlled by the provisions "Tlie court in considering the que?- thus said, in effect, that the mere fact tion said : "It is urged that the pOAver tliat sound itself is transmitted by the thus expresslj^ given to form and organ- telephone established no material dis- ize corporations for the purpose of tinction between telephonic and tele- building and operating telegraph lines, graphic communications, as the trans- or conducting the business of telegraph- mission if it takes place, is performed ing in any way, includes the power of by a wire acted on by electricity. It forming and organizing corporations is there further said that, of course, no for the purpose of building and operat- one supposes that the legislature in- ing telephone lines, or conducting the tended to refer specifically to telephones business of telephoning in any way. many years before they were invented, . . . Tn that case (Atty.-Gen. v. Ed. but it is highly probable that they ison Telephone Company) the court would, and it seems to us also that they concluded that Edison's telephone was actually did, use language embracing a telegraph within the meaning of the further discoveries as to the use of elec- telegraph acts, although the telephone tricity for the purpose of conveying in- was not invented nor contemplated telligence." Wisconsin Tel. Co. v. City wlicn those acts were passed. It is of Oshkosh, 62 Wis. 30, 21 N. W. 828. 12 TELEGRAPH AND TELE^HO^'E COMPANIES. [§ 8 of its statute, and therefore could not withhold from one person or corporation the privileges which it conceded to another." ^^ § 9. Same continued — construction of statutes. In the discussion of this subject, it will be our purpose to men- tion the nature of some of the different statutes of the various states which have bearino- on this point at issue and how the same have been interpreted by the courts therein. It is true that this is no longer much of a controverted question as most of the states have, since the invention and development of the telephone, become so well versed in the nature, use and convenience of it, that a greater portion of the statutes therein now mention the "telephone" in cDnneetion with the "telegraph." But there is a rule of law in the interpretation of a statute which has been amended by a material change of its language, that this fact indicates an intent to change the meaning of the stat- ute.^^ So, the result of the rule is that where a statute originally contained the name "telegi-aph" and was afterwards amended so as to mention also the name "telephone," the law flowing therefrom was materially changed and the rights and privileges exercised by the telegraph company, under the unamended statutes could not be en- joyed by the telephone companies, if such was the intent of the legis- lature.^^ § 10. Same continued — illustrated. This question was settled in a case in Texas which arose in a suit instituted by a telephone company to condemn certain property for its right of way. There were in the general incorporation laws of this state a statute ^^ which granted to telegraph companies the right to condemn property for rights of way. In another division of the original act, corporations might be formed for "the constructing and maintenance of a telegraph line," no mention being made of the tele- phone. The first-mentioned statutes have remained in force since their enactment as part of the general incorporation law, but the =*Bell Tel. Co. v. Com. ex rel. Balti- "San Antonio, etc., R. Co. v. South- more and 0. T. Co., 59 Am. Rep. 172 western Tel., etc., Co., 93 Tex. 313, 77 (Penn. case). Am. St. Rep. 884, 56 S. W. 201, 49 L. ^ James v. Patten, 6 N. Y. (2 Selden) K. A. 459. 9 55 Am. Dec. 376. °' 5 art. 698 and 699, Laws 1871. <^ 11] GENERAL XATDKE. 13 provision for incorporating a telephone company was afterwards amended so as to read, "'the construction and maintenance of a tele- graph or a telephone line," which was later changed so as now to he "the construction and maintenance of a telegraph and telephone line." It will be seen that in the different changes of these statutes whereby the telephone became an important factor, to enjoy some of the rights and privileges which were and are enjoyed by the tele- gi'aph, there is nothing said, in any of these amended or unamended statutes which gives the telephone tlie right to exercise the power of eminent domain. The foremost and most important question in this case was whether or not the statutes that relate to the exercise of the right of eminent domain in condemnation proceedings by tele- graph companies, apply to telephone companies and authorize a like procedure by the latter. The court held in this case that the phrases, "magnetic telegraph lines," and "any telegraph lines" found in a statute are broad enough to include the "telephone," which is merely another method of communication by means of electricity, and where another statute confer?^ upon the former the right of eminent domain in condemnation proceeding?, the same will apply to tele- phone companies. ^^ § 11. Same continued. In Xew Jersey, the question arose as to the validity of the in- corporation of a telephone company to be incorporated under the general law which authorized the organization of telegraph com- panies without mentioning the term "telephone" and the right to con- demn property. The original act to incorporate telegraph compan- ies had been amended similarly to the Texas statutes mentioned above, whereby and wherein the telephone Avas mentioned in con- nection with tlie telegi-aph ])ut no changes had been made in the or- iginal statute with respect to the right to exercise the power of emi- nent domain. The court held in that case that the tenn "telegraph" as used in the statute, included "telephone," and that the charter " San Antonio, etc., R. Co. v. South- western Tel. Co., 93 Tex., 313, 77 Am. St. Rep. 884, 56 S. W. 201. 14 TELEGKAPH AND TELEPHONE COMPANIES. [<§ 11 granted to a telephone company, under the general law authorizing the incorporation of telegraph companies, was valid.^^ The court said in its able opinion; "Its application to the purposes of speedy transmission of intelligence, was but a change in detail, but not in substance, of the business for which these companies were clothed with corporate privileges. They are both services of a public na- ture which would permit the legislature to confer the power to con- demn for each use. They are both designed to convey intelli- gence between distant places. So far as the owner over whose land their tracks or routes lie, they each are operated with the same ap- pliances. Poles and wires placed alike, impose exactly the same sendtude upon the land. With the change in the apparatus at the termini telegraphy becomes telephony. The former makes the dis- tant message intelligible by words, marks, or sounds ; the latter by sounds alone. The same electric fluid is the medium of transmis- sion, and all the internal structure is the same in both. The corpo- ration employing either means of communication is executing sub- stantially the same public function in substantially the same way. The business conducted in either way, is within the purpose for which the statute was enacted." § 12. Same continued. The charter of the City of St Louis gave the mayor and the board of aldermen the power to license, tax, and regulate telegraph com- panies or corporations, and all other businesses, trades, avocations, or professions whatsoever. The question was settled there in a case in which a telephone company was being prosecuted for violating a certain city ordinance which attempted to regulate the charges of the company. The court held in this case that telephone companies were ejusdem generis with telegraph companies, though the former were not in existence at the date the charter was granted.^^ There are many other statutes and cases both state and federaP^ to which =» State V. Central New Jersey Tel. 9G Mo. 023, 10 S. W. 197, 9 Am. St. Co., 53 N'. J. L. 341, 21 Atl. 460. Rep. 370. "City of St. Louis v. Bell Tel. Co., "Cumberland Tel. Co. v. United Electric Co., 42 Fed. 273. <^ 14] GENERAL NATURE. 15 we could refer the reader in verifyinf? the fact that the term "tele- graph" in statutes means and includes any apparatus or adjustment of instruments for transmitting messages or other communications by means of electric currents and signals and that it is comprehen- sive enough to embrace the telcphone,^^ but we deem that enough has already been said on the subject. § 13. Same continued — when applied. There have been different cases in which the above question has been tested in order to ascertain the different ways in which the rule might be applied. For instance, as we said above, statutes author- izing telegraph companies to exercise the right of eminent domain or to occupy highways, apply to telephone companies. It has been held that the same rule applied to statutes forbidding discrimina- tion ; as where a statute provided that telegraph companies shall re- ceive dispatches from and for other telegraph lines, and from and for individuals, and transmit them impartially and in good faith; un- der these statutes a contract made between a telephone company and the owner of the telephone instruments providing that the company in the use of the instrument shall discriminate as between telegraph companies, is void as against public policy.^^ The same rule applies to statutes relating to taxation f^ and to those providing for the in- corporation of such companies ;^^ and to statutes fixing the locality of suits against telegraph companies. 32 § 14. When different rule obtains — intent of law-makers. The rule that the terra "telegraph" in statutes includes and em- braces "telephone" is not general, but in order to determine this fact =»Chespeake, etc., Tel. Co. v. Balti- 15.5: Com. v. 'West. Union Tel. Co.. 2 more, etc., Tel. Co., G6 ]\Id. 399, 7 Atl. Dauphin Co. Rep. (Pa.) 30. 809, 59 Am. Rep. 167 ; Roberts v. West. =>' Duke v. Central New Jersey Tel. Tel. Co., 77 Wis., 589, 46 N. W. 800. Co., 53 X. J. L. 341, 21 Atl. 460; York -'State V. Bell Tel. Co., 36 Ohio St. Tel. Co. v. Kessey, 5 Pa. Dist. 366; 296, 38 Am. Rep. 583. Wisconsin Tel. Co. v. Oshkosh, 62 Wis. '«'Iowa Union Tel. Co. v. Board of 328, 21 N. 828. Equalization, 67 Iowa 250, 25 N. W. « Franklin v. Xorthwostorn Tel. Co.. 69 Iowa 67. 16 TELEGRAPH AND TELEPHONE COMPANIES. [§ 14 the minds of the law-makers must be consulted to ascertain as to whether or not it was the intent of this body that the "telephone" was comprehended in the term "telegraph." When, from the cir- cumstances or character of the legislation, it is clear that the inten- tion was otherwise, as in the case of the Act of Congress giving tele- graph companies a right to occupy post-roads, the act does not em- brace telephone companies.^^ ^' Reckinond v. Southern Bell Tel., etc, Co., ]74 U. S. 761, 19 S. Ct. Rep. 778. CHAPTER II. LEGAL STATUS OP TELEGRAPH AND TELEPHONE— AS TO PUBLIC USE. § 15. Right of eminent domain. 16. How to be exercised. 17. Telephone included. 18. Accepting right of eminent domain. 19. To regulate charges. 20. Character of property. § 15. Right of eminent domain. The telegraph is such a public convenience as to entitle it to exer- cise the power of eminent domain in its behalf.^ The transmission of intelligence by electricity is a business of public character to be exercised under public control in the same manner as the transporta- tion of goods or passengers by railroads. This fact has been recog- nized by the acts of Congress,^ and by the decisions of both the federal and state courts.^ So far as is known to us, it has not been held otherwise anywhere.^ The conveniences enjoyed by the public from these companies are as great as those obtained from any other quasi-public corporation. The railroad companies, with all the uses to which they may be applied in transporting goods, merchandise and other kinds of property ; and, also furnishing suitable and proper accommodations, not to be equaled, for any who desire to travel, are no more convenient and acceptable to commercial business than those which furnish means for transmitting intelligence. Congress ^ Laws of Telephones, 10 Am. St. ern. etc., Tel. Co., 43 N. J. L. 381 : Rep. 131. Lackie v. Mutual Tel. Co., 103 111. 401 : =" March 3. 1863; July 24, 1866. Chican;o. etc., Bridge Co. v. Pac. Mut. 'Pensacola Tel. Co. v. West. U. Tel. Tel. Co., 36 Kan. 113, 12 Pac. 535; Tif- Co., 96 U. S. 1. fany v. U. S. Illuminating Co., 67 How. * Pierce et al. v. Drew et al., 136 Pr. (N. Y. Super. Ct.) 73; American Mass, 75, 57 N. E. 220, 49 Am. Rep. 7; Tel., etc., Co. v. Pearce, 71 Md. 535, 18 Hockett V. State, 105 Ind. 250 , 5. N. E. Atl. 210, 23 Am. St. Rep. 227; Lewis 178, 55 Am. Rep. 201 ; West U. Tel. Co. on Em. Dom., §172; Mill on Em. Dom., V. Pendleton, 95 Ind. 12, 48 Am. Rep. §21. 692 ; New Orleans, etc., R. Co. v. Sonth- T. & T.— 2. (!''') 18 TELEGKAPII AND TELEPHONE COMPANIES. [§ 15 early saw that they were of such public couvenience and use to the g'overnment and so necessary to the progTess of our commercial in- terests, that it deemed them sufficiently quasi-public corporations to be justified in granting them the privilege of exercising the right of eminent domain for the purpose of acquiring the right to erect and maintain their poles, wires and other necessary appliances over and upon public and private property. In furtherance of this privilege, it passed the following statute: "'Any telegraph company now or- ganized, or which may hereafter be organized under the laws of any state of the Union shall have the right to construct, maintain, and operate lines of telegTaph . . . over and along any of the mil- itary or post roads of the United States, which have been or may hereafter be declared such by act of Congress, . . . provided said lines shall not be so constructed as to interfere with travel" on such roads; and provided, also, "that, before any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file its written appearance with the postmaster- general of the restrictions and obligations required by this act." '' Most of the states in the Union have statutes similar in nature to this. It is not our pui-pose to leave the impression on the reader's mind that this statute is the first instance of our government regard- ing the transmission of intelligence by electricity as a business of public character and to be exercised under the public control in the same manner as the transportation of goods or passengers by rail- road; for they have so been considered almost as long as they have been in use. They may exercise this right in the streets, upon the public highways, along railroads, through private and public prop- erty, over navigable rivers, or anywhere else necessary to carry out the objects for which they were incorporated. § 16. How to be exercised. After a telegraph company has exercised the right of eminent do- main and obtained the easement or right of Avay on which to plant its poles and stretch its wires, it must exercise the use thereto so as not to incommode the conveniences and uses to which it is otherwise 5 July 24, 1866. - ^ 10] LEGAL STATUS, 11) put, as that of public travel. They luust not erect their poles, piers, abutments, guys, or any other part of their appliances necessary for ihe carrying on of their business in such a manner as to be a nuisance or subject ^lersons or property to danger therefrom.*^ If they should, they will 1m' liable in damages to any one who may be injured thereby, and nia\ lie forced to either remove such obstructions or abandon iheii- busiuess at tlini |ioiiif. If it is not necessary for the comfort ,iud ])leasure of thof^e living near those inconveniences, that they -hould be removed, the company will not be compelled to remove iliem:' for the eonipany may be able to carry on its business at other places \\here tlie same results would not happen;* or, in a different uianner, as by the means of a viaduct placed beneath the surface of rhe streets or highways.'' They will not be permitted to obstruct the ancient light M'ith a great bunch of wires stretched over and near a window ; nor can the inmates therein be compelled to be discomforted bv ffreat vibratine; noises of these wires. Thev cannot cut trees nor limbs therefrom, to any great extent, without ])ermission of the owner. It i- verv seldom that a tree could be cut, but there is no » Wilson V. Oivat Southern Tel., etc., Co., So. 7S1. A license from a city to erect its ])ok's in and string its wires over the public streets carries -with it :ni implied obligation to erect and main- tain tlieni in a safe condition, so that iho'v will not become nuisances, or en- danger the safety of the traveling pub- lic. \\ li-'H the wires fall into the street it is the duty of the company to re- Muivc ihciii after reasonable notice, and it is liat)le for injuries resulting from its failure to do so. though their fall wa.s occasioned by the weight of ico produced by water thrown on them hy the city fire department while ex- tinguishing a fire. Nichols v. ;Minneap- nlis, .3.3 :Minn. 430, 53 Am. Rep. 56, 23 N'. W. SfiS. I'nder the provision of the Ohio statutes, tliat a telephone company may occupy for its poles a part of the public liighway. but nuist not thereby ineoniiiiixle llie )uiblie. it i^ required to exercise reasonable care in the locality of its poles, but is not required to so locate them as to provide against all possible injuries to travelers. Sheffield v. Central U. Tel. Co., 36 Fed. 164. A court will take judicial notice that telephone poles in a highway must be set near the side thereof, generally out- side of the curb or ditch line, and. therefore, necessarily in line with trees in the highway. Wyatt v. Central Tel. Co.. 123 Mich. 51, 81 N. W. 028. 31 Am. St. Rep. 155, 47 L. R. A. 497. ' American, etc., Tel. Co. v. Hess. 125 X. Y. 641. 21 Am. St. Rep. 764. 13 L. R. A. 454n; Note to .Julia Building Assn. V. Bell Tel. Co., 51 Am. Rep. 409. * Cincinnati Incline Plane R. Co. v. City, etc., Tel. Assn.. 48 Ohio St. 390, 29 Am. St. Rep. ."lOO. 12 L. R. A. 534. 27 N. E. 890. •1(1. 20 TELEGKAPK AND TELEPHONE COMPANIES. [<^ 1(5 reason why small luidergTOwth along the public highway may not be, provided the company cannot otherwise conveniently erect its poles and wires. As to limbs along such highw^ays, they may be cut and trimmed sufficiently to j)ermit the poles to be planted and the wires to be stretched without the consent of the owner, but as to such cutting and trimming in towTis and cities the rule is different. There, the trees are considered not only as an ornament but also as a neces- sity for health. A tree which might be regarded as worthless on the countiy highw'ay may be very valuable to an abutting street owner. It is in some states a criminal trespass for a telegraph company to trim trees on the streets without the consent of the owner, and when such is done, exemplary as well as punitive damages may be recov- ered.^" It is not our purpose to mislead the reader in saying that these companies can cut and trim trees or any kind of undergrowth on the lands of private parties, for this would be taking property without due compensation, but when the trees and undergrowth are of little value or nearly so, and the right of way has been acquired, they may be removed wdthout the owner's consent. So, if a tele- phone company is given the right to erect its lines along a highway, it must of necessity, have the right to remove obstructions. Hence, it may in a proper manner, trim trees to obtain a free passage for its wires without first giving the abutting owner an opportunity to do such cutting, but the company must answer for any unnecessary, improper or excessive cutting. -^^ § 17. Telephone included. All the law which has been heretofore commented upon applies to telephone companies, provided they are not owned by private indi- ^^ Cumberland Tel., etc., Co. v. Cas- Co. v. Mackenzie, 28 Am. St. Rep. sedy, 78 Miss. 666, 29 So. 762. 235; Pearce et al. v. Drew et al., 136 "Wyant v. Central Tel. Co., 123 Mass. 75, 49 Am. Rep. 7; Laws of tel- Mich. 51, 81 N. W. 928, 81 Am. St. ephone, 10 Am. St. Rep. 139; San An- Rep. 155, 47 L. R. A. 497; Memphis tonio, etc., R. Co. v. Southwestern Tel. Bell Tel. Co. v. Hunt, 84 Tenn. 456, 57 Co., 93 Tex. 313, 55 S. W. 117, 77 Am. Am. Rep. 237, 1 S. W. 159, Mono- St. Rep. 884, 49 L. R. A. 459. graphic notes to Chespeake, etc., Tel. <^ IS] LEGAL STATUS. 21 viduals.^- A telephone corporation is, for many purposes, regarded as a common carrier; and it may, doubtless like other common car- riers, be authorized to exercise the power of eminent domain for the purpose of acquiring the right to maintain its poles, wires and other necessary appliances upon and across private property. When a stat- ute confers upon telegraph companies the right of eminent domain in condemnation proceedings, the same, as has been seen, applies to telephone companies and authorizes a like procedure. § 18, Accepting right of eminent domain. Whatever may be the character of any line, the owners, by accept- ing privileges from the public to do certain acts — as being clothed with the right of exercising the power of eminent domain — make it such a public use as to place it under obligations to the public in the same manner as any other quasi-public corporation. Their busi- ness intimately concerns the public; and, on this account, the gov- ernment assumes and has the right to regulate their business so as to insure impartiality of sen-ice and prevent the exaction of unrea- sonable tolls. ^^ They are under obligations to the public to have skilled operators, good machinei-y and serve all alike who apply to them, for the same compensation. The law requires that their con- tracts shall be performed in good faith; that their functions shall l^e discharged with reasonable care; and they shall answer in dam- ages for losses and injuries that may be traced directly or with rea- sonable certainty to their negligence.^"* '= '-An individual may conduct any of intelligence is necessary, the postal ])roper business without legislative as- service of the government. Their busi- sent. unless there has been some legis- ness intimately concerns the public, lative restriction upon such right." A and, on this account, the government telephone may be owned and conducted assumes and has the right to regulate by an individual. Magie v. Overshiner, their business so as to insure inipar- 50 Ind. 127, G5 Am. St. Rep. 3G7, 40 L. tiality of service and prevent the ex- R. A. 370^ 49 N. E. 959. action of unreasonable tolls." Reed v. '"They are corporations created for West. U. Tel. Co., 135 Mo. 661, 37 S. public benefit, endowed with special W. 904, o8 Am. Rep. 613, 34 L. R. A. privileges such as the right of eminent 492. domain, and perform important tunc- " West. U. Tel. Co. v. Allen. 66 Miss, tions of commerce supplanting in cases 549, 6 So. 461 ; note to West. U. Tel. where celerity and rapid transmission Co. v. Blanchard. 45 Am. Rep. 486; 22 TELEGRAPH AXD TEEEPIIOXE COMPA^'IES. [§ 11) § 19. To regulate charges. A telegraph or telephone company is engaged in a business effected with a public interest within the principle which authorizes the state to regulate the charges of companies carrying on such a business. When the owner of property devotes it to a use in which the public has an interest, he in effect gTants to the public an interest in such use and must, to the extent of that interest, submit to be controlled by the public for the conuiion good as long as he maintains the use to which he has so devoted his property ; he can only escape such public control by withdrawing his grant and discontinuing the use.-^^ But when a city charter gives the mayor and assembly the power ^'to li- cense, tax, and regulate telegraph companies," the power to regulate these companies does not confer upon this body, the power to fix a rate of charges by an ordinance. ^*^ The poles, wires and fixtures of any telephone company may belong to private individuals, but if they put them to a use to which the public has an interest, the pub- lic may exercise control and authority over that interest. '^'^ It may West. U. Tel. Co. v. IMansford. 87 Tenii. 190, 10 Am. St. Rep. 630, 2 L. R. A. 601n; West. U. Tel. Co. v. Cooper, 71 Tex. 507, 9 S. W. 598, 10 Am. St. Rep. 772, 1 L. R. A. 728; Pepper v. Tel. Co.. 87 Tenn. 554. 1 1 S. W. 783, 10 Am. St. Rep. 699, 10 L. R. A. 660; Cutts v. West. U. Tel. Co.. 71 Wis. 40. 36 X. W. 637. ^MuTiii V. Illinois, 94 U. S. 113; Hockett V. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201 ; Chicago, etc., R. Co. V. Iowa, 94 U. S. 155; Chica- go, etc., H. Co. V. Ashley, 94 U. S. 179; Winona, etc., R. Co. v. Blake, 94 U. S. 180; Railroad Co. v. Richmond, 96 U. S. 21; Railroad v. Fuller, 17 Wall. 560; Olcott V. Supervisors, 16 Wall. 678 ; Raggles v. Illinois, 108 U. S. 526 ; 2 S. Ct. Rep. 832 ; Spring Valley Water Works V. Schottles, 110 U. S. 347, 4 S. Ct. R'3p. 48; Raggles v. People, 91 111. 256; 1. C. R. Co. v. People, 108 U. S. 541, 2 S. Ct. Rep. 839 ; Allmit v. In- glis. 12 :Z. 527: Mayor, etc.. of Mobile v. Yisille. 3 Ala. 137, 36 Am. Dec. 441; New Jersey Steam Xav. Co. v. Mer- chants' Bank. 6 How. 343; Bolt v. Stenett, 8 T. R. 600; Com. v. Duane, 98 Mass. 1: Com. v. Alger, 7 Gush. 53; Metropolitan Board v. Barrie, 34 N. Y. 657 ; Slaiighter-House Cases. 16 Wall. 30; Shoroless v. I'llay. etc., 21 Pa. St. 147; Gr.int v. Couiier. 24 Barb. 232. '"City of St. Louis v. Bell Tel. Co., 96 Mo. 023. 9 Am. St. Rep. 370, 2 L. R. A. 278n. A municipal corporation has only such powers as are expressly granted, and such as are necessary to carry into efliect those specially con- ferred, and such powers are strictly construed. Xot<> to McCord v. Pike. 2 Am. St. Rep. 92; Chicago Gas Light Co. V. Peoples' Gas Light Co., 121 111. 530, 2 Am. St. Rep. 124, 13 N. E. 169. "Magie v. Overshiner. 150 Ind. 127. (;5 Am. St. Rep. 367, 40 L. R. A. 370, 49 X. E. 950. { I'O] LEGAL STATUS. 23 coutroi the cliargx-s Ix'tween points withiu the state; and this, too, notwithstanding the fact that the company is carrying on interstate commerce ;^^ or that the lines are operated under a patent granted by the federal government. The charges cannot be defeated by an at- tempt to divide them into two items, one as a regular rental and the other as a monthly charge for the use of instmment by non-sub- scril3ers; nor can the companies defeat the maximum charges by charging for each conversation instead of charging a regular rental. § 20. Character of property. It has been held by one court, ^'' that the jxjles, wires and lamps of a telegraph company were real property ; but it has been held by another court-" that the wires did not change their character by be- ing attached to poles so as to become part of the realty and become covered by a pre-existing mortgage when it was the intention of the ])arties to remov(> them after a certain time. It seems to us that when a wire is attached to poles for the purpose of conducting intelligence, that it then becomes as much the realty as the poles themselves. The question of intent hardly enters into the matter unless it is openly asserted by express agreement, since it is not presumed that the wires are constructed temporarily; when this is the case, it seems that they would be classed as fixtures and become part of the realty. The su- ])reme court of INIississippi decided a case involving a point similar to this. In that case the ])hiintiflF agreed to furnish an electric light plant for defendants' boat uiuK r an agreed price if the lights fur- nished were good, but they failed to prove satisfactory to the o^^^lers of the boat and they refused to pay for same. This suit was brought to fasten a lien on the boat for the contract price as "material fur- iiislied alx>nt the alteration or repairs" of said l>oat. The court held that the lights were essential to the business in which the boat was engaged, and the articles supplied were intended as a permanent part of the boat ami were attached to it and were a part of it.-^ A tele- '»r tlic lial)ilitv of insurers.'' § 23. Same continued — decision criticised. Sunie weight might havi' been attached to the case above quoted, had it been decided at a time when the facilities for transmitting in- telligence by means of electricity had been developed to its present state, M-hen messages can be sent without so much risk of incorrect transmission. This state of perfection is now almost complete. As was very ably said l>y .Tudge Bruse, while discussing the perfection to which the science of telegraphy had attained: "In the ordinary course of business, the newspapers inform us, and we have no reason to doubt the truth of the statement, telegrams are sent from jSTew "^'ork to London, and answers received, in about thirty-three minutes, tliey having passed thrcMigh thirty-six different hands, and traveled over seven thousand miles. This is done every day, such is the per- fection to which tile art is brought. Does an instrumentality which can perfonn such feats require the fostering care of courts ? Is it an infant yet in its swaddling clothes ? Xo, but a giant power, under the control of man, whose daily exploits, guided by care and skill, throw those of the fabled Mercury deep into the shade and far in the rear."^ With the skilled operator and the imi)roved machinery which we now June, it is almost impossible, without the company's negli- gence, to fail in transmitting messages correctly. But during the time of this decision, the science of telegraphy was not perfect by any means. Tlie scientist had not learned how to guard against the atmos]iheric disturbances: the a]i]'>aratuses necessary to transmit in- ' Parks \. Alta etc. Tel. Co.. 13 Cnl. tho Park's case, the only case to be 422. 73 Am. Dec. 589. found in which telegraph companies ' Afac Andrews v. Electric Tel. Co., 17 have been expressly held to be coni- Com. B. 84. Enir. Com. L. 3, decided in nion carriers, and subject to the same England in 1855. This case hv im]>li- severe rule of responsibilit.v. cation, only can be said to be auliiority * West. V. Tel. Co. v. Tyler. 74 111. iif insurers. This case was followed by IdS. 24 Am. l\cp. iSl. 28 TELEGRAPH A:srD TELEPHONE COMPANIES. [§ 23 telligence were crude and imperfect and the operators were very un- skilled in the management of the machines. Why this learned judge could say under these circumstances that they were insurers of cor- rect transmission of intelligence is to be answered by saying that his reasons on this subject were similar to the science of telegraphy ai that time — very imperfect. There is no doubt but that this court was somewhat misled by the English case cited. § 24. Common-law theory continued — distinction between these and common carriers — reasons. The telegrajDh and telephone companies are not common carriers and so insurers of a correct transmission of messages, yet they are lia- ble for failure to exercise due care in making such transmissions. The public is interested in them and must control the way in which they carry on their business to the extent of seeing that the confidence reposed in them by the public is exercised impartially with the same care and diligence which any one would use under like circumstances. While they are not common carriers, in the strict sense of the term, they are engaged in a business, almost if not quite, as important to the public as that of carriers.^ Messages which are transmitted by means of electricity are sometimes as valuable to the sender as the goods which he transports by the. common carrier, but the chances which the latter has over the former in caring for the goods during transit are far superior to that of the former in controlling the mes- sages. The common carrier has an opportunity of seeing what hap- pens to the goods in his charge at the moment it happens. But a telegraph company, owing to innumerable causes, which may dis- turb the security of the lines, would be as often open to liability be- cause of the acts of providence, unknown to it, as for any other reason. The common carrier has the tangible property and is more capable of insuring its protection while in its care than the telegraph and tele- phone companies have of insuring the safety and correctness of the intangible property of a message which is being transmitted over their wires and almost constantly coming in contact with atmospheric ^Hockett V. state, 105 Ind. 2,50, 5 N. Tel. Co. v. Pendleton, 95 Ind. 12, 48 E. 178, 55 Am. Rep. 201; West. U. Am. Rep. 692. ^ 25] AS TO COMMON CARRIERS. 29 hindrances." For this reason, the common law does not hold the telegraph companies to the same strictness of insurers over the cor- rect transmission of messages which it places on common carriers over the goods intrusted to the latter's care. The one is liable only when it fails to exercise due care, or when it becomes negligent; while the other is always liable for the loss of all or any part of the goods, unless the same has been caused by act of the parties, of the public enemy, or by the act of God. § 25. Common-lav^'' theory continued- riers of goods. -analogy to common car- The true rule is that the status of telegraph companies is analogous to common carriers in their obligations to serve the public in good faith and impartially.'^ But they are not insurers of a correct trans- mission of messages turned over to them, as carriers are for prop- ertv intrusted to them for carriaffe.^ This, then, is the analogy be- 'The liability of a telegraph com- pany for error or failure in the trans- mission of a dispatch is quite unlike that of a common carrier. A telegraph company is intrusted with nothing but an order or message, which is not to be carried in the form in which it is received, but it is to be transmitted or repeated by electricity and is peculiar- ly liable to mistake; which cannot be the subject of embezzlement; which is of no intrinsic value; the importance of which cannot be estimated except by the sendtM-, nor ordinarily disclosed by him without danger of defeating his own purpose; which may be wholly valueless if not forwarded immediate- ly; for the transmission of which there must he a simple rate of compensation; and the jneasure of damages, which has no relation to any value which can be put on the message itself. Grinwell v. West. U. Tel. Co., 113 Mass. 299, 18 Am. Rep. 485. Klillis \. West. U. Tel. Co.. 61 Vt. 461, 17 Atl. 736, 15 Am. St. Rep. 917, 4 L. R. A. 61 In; West. U. Tel. Co. v. Rej-nolds, 77 Va. 173. 46 Am. Rep. 715. * "The current of authority is not in this direction, and properly so, because the transmission of messages is neces- sarily subject to the risk of mistake and interruption. The same is exposed to the interference of strangers; a sur- charge of electricity in the atmosphere, or a failure of or, an irregularity in the electrical current, may stop com- munication; and it is continually sub- ject to dangers from accident, malice and climatic influence when the com- pany has not the immediate custody of the messages as the common carrier has of the merchandise it carries; and it should not, therefore, like a common carrier, be treated not only as a bailee but as an insurer." Smith v. West. U. Tel. Co., S3 Ky. 104, 4 Am. St. Rep. 126. See also Little Rock, etc., Tel. Co. v. Davis. 41 Ark. 79; Hart v. West. U. Tel. Co., 66 Cal. 579, 59 Am. Rep. 110. 6 Pac. 637 (rule changed by civil 30 TELEGRAPH AND TELEPHONE COMPANIES. [§ 25 tween comniou carriers of goods and telegraph companies. The one is an insurer of goods intnisted to it under all circumstances, ex- cept such losses as may be caused bv the act of God or the public eneniY ; while the telegraph companies, in the absence of a contract or regulations modifying their liability, do not insure absolutely the safe and accurate transmission of messages, but are only required to exercise due care and diligence in all their work, and Avill be liable only for the negligence of their agents.'^ It seems to us that the anal- ogy between common carriers of passengers for hire and telegraph companies is stronger than that between the latter and common car- riers of goods. ^" Cai-riers of passengers are not insurers of the safety of their passengers ; nor are they liable for injuries to their code, §§21G2, 2168) : West. U. Tel. Co. V. Hyer. 22 Fla. 637, 1 Am. St. Rep. 222, 1 So. 129; Cen. U.Tel. Co. v. Brad- bury, 106 Ind. 1, 5 N. E. 721; Tyler V. West. U. Tel. Co., 60 III. 421, 14 Am. Rep. 38 ; Sweatland v. Illinois, etc. Tel. Co., 27 Iowa 458, 1 Am. Rep. 285; Aiken v. West. U. Tel. Co., 69 Iowa 31, 2S X. W. 419, 58 Am. Rep. 210; Comp V. West. U. Tel. Co., 1 Mete. (Ky.) 164, 71 Am. Deo. 461; Fowles v. West, r. Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211 ; Bartlett v. West. U. Tel. Co., 62 :\Ie. 209, 16 Am. Rep. 471; Birney v. Xew York, etc. Tel. Co., 18 Md. 341, 81 Am. Dec. 607; Grimwell V. West. U. Tel. Co., 113 Mass. 299, 18 Am. Rep. 485; West. U. Tel. Co. V. Carew, 15 Mich. 525; W^ane v. West. U. Tel. Co., 37 Me. 472, 90 Am. Dec. 395; Leonard v. New York, etc. Tel. Co.. 41 X. Y. 544, 1 Am. Rep. 446; DeRutte v. New York, etc. Tel. Co.. 1 Daly (K Y.) 547, 30 How. Pr. (N. Y.) 403; Schwartz v. Atlantic, etc. Tel. Co., 18 Hun. (X. Y.) 157; West. U. Tel. Co. V. Griswold, 37 Ohio St. 310, 41 Am. Rep. 500; New York, etc. Print Co. v. Dryburg, 35 Pa. St. 298, 78 Am. Dec. 338 ; Passmore v. West. U. Tel. Co., 78 Pa. St. 238; Aiken v. West. U. Tel. Co.. 5 S. Car. 358: West. U. Tel. Co. V. Xeill. 57 Tex. 283. 44 Am. Rep. 589; West. U. Tel. Co. v. Edsall, 63 Texas 668; Washington, etc., Tel. Co. V. Hobson, 15 Grett (Va.) 122; Hibbard v. W'est. U. Tel. Co.. 33 Wis. 471. 17 Am. Rep. 452; Abraham v. West. U. Tel. Co., 23 Fed. 315, 11 Saw- yer (U. S.) 28; Southern Ex. Co. v. Caldwell, 2 Wall. (U. S.) 269; Baxter V. Dominion Tel. Co.. 37 W. C. Q. B. 470. See also Gray on Telegraphs, §8; Thompson on Electricity, §138; Ellis V. Am. Tel. Co., 13 Allen (Mass.) 232. » Fowler v. West. U. Tel. Co., 80 Me. .381, 15 Atl. 29, 6 Am. St. Rep. 211. '* It was said on this subject, that : "Although there may be no analogy be- tween the business of telegraph com- ])anies and that of public carriers of passengers, for hire, yet \ve regard their legal statutes as practically the same. Both are engaged in a business (if a pubic nature. Both sei-ve all who come. Neither are insurers, or liable as such, but both are liable for negli- gence." Gillis V. West. U. Tel. Co., 61 Vt. 461, 17 Atl. 736, 15 Am. St. Rep. 017; Fowler v. West. U. Tel. Co., 80 Me. 381, 15 Atl. 29, 6 Am. St. Rep. 211; Gray on Telegraph, §11. note. (^ 26] AS TO COMMON CARRIERS. 31 passengers resulting from such defects in their buiUlings or means of transportation as could not have been guarded against by the exer- cise of care on their part ; nor for injuries caused by an act of God, without negligence oti the carrier's part. But when the carrier has been in any rc.sjK-ct negligent, the concurrence of an act of God in causing ihc injiu-y will not relieve the carrier from responsibility. Kor are caiTiers to be held liable for injuries caused without fault on their part by an act of the public enemy ; nor to injuries caused by inevitable accident, not due in any way to negligence on the part of the carrier and such as no human foresight on his part could avert. The same rule applies to telegraph companies. They are both engaged in a business of a public nature, both must serve all who (.ome — neither are insurers nor liable as such, but both are liable for negligence.^' § 26. Common-law theory continued — degree of care. As telegraph companies are liable only for failure to exercise due care in transmitting intelligence, it might be proper to examine the true meaning of the phrase ''due care ;" and in doing so it gives us very much pleasure to refer the reader to the very learned and able opinion of Judge Danforth on this question, when he said, that: "To require a degTce of care and skill commensurate with the impor- tance of the tnist reposed is in accordance with the principles of law applicable to all undertakings of whatever kind, whether pro- fessional, mechanical, or that of conmion labor. There is no reason why the business of sending messages by telegTaph should be made an exception to the general riile. Thi^^ requires skill as well as care. If the work is difficult, greater skill is required. It is often necessary to intrust to this mode of communication, matters of great moment, and therefore the law requires great care. It is necessary to use instruments of a somewhat delicate nature and accurate adjust- ment, and therefore they must be so made as to be reasonably suffi- cient for the ]->\irpose. The company holding itself out to the public as ready au§, 28 common carriers, but if such improvements are made on them as men- tioned above, it will not be necessaiy for such laws to be enacted by the states, for thev will be considered as common carriers without such laws. We do not desire the readers to understand us as saying that they are common carriers, or ever will be, in the absence of a statute declaring them to be such; but Ave do say that if the improvements in the methods of transmitting, intelligence continues to develop for the next thirty years as they have during the last ten, they will be at such a state of perfection as will induce the courts to throw around them the same stringent and rigid mles in the enforcement of that degree of care in the transmission of intelligence as are now applica- ble to common carriers, thereby causing them to be insurers to a cer- tain degree and therefore making them nothing less than common carriers. § 29, Common carriers continued — law applicable to both tele- graph and telephone companies. The same law which has been discussed in regard to common car- riers, is equally applicable to both telegraph and telephone companies. The fact that different means are used in the transmission of intel- ligence over telegraph and telephone companies, does not make them different in nature. In both instances, the intelligence or message is actually transmitted by the use of agencies and instrumentalities furnished either by the telegraph or the telephone company, for which they are entitled to receive proper compensation ; and one is just as much engaged in the business of trangmitting intelligence for hire as the other. Both are devices by which one person is en- abled to communicate w^ith another beyond the reach of the human voice, unaided by some artificial appliance ; and although, there are some differences in the mode of transmitting intelligence, yet the end sought and attained by each is substantially the same.^^ The rule is not changed by reason of the fact that the agent of one company oc- cupies a position in which he may more often be apprised of the con- tents of the message than the agent for the other ; for in either case, '« State V. Citizen's Tel. Co.,' Gl S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870. ^ 30] AS TO COMMON CAKKIERS. 35 the agents may be, and are very often, deprived of a means of ascer- taining the contents of a message. ^'^ § 30. Statutory theory. Having discussed at some length the analog)' of telegraph and tel- ephone companies to common carriers, as considered under the com- mon law, it shall now be our purpose to say something of the changes which the statutes of some of the states have made with respect to this subject; and in doing so, we shall endeavor to make the discus- sion more brief than under the former head, or the common law theory. In fact the most that is said under this title is the result of siicli thoughts as may be advanced by the writer, on account of the statutory changes of the common law theory being mostly of re- cent enactment, and, for which reason, few cases, in which the ques- tion is considered, are found in the reports. It is held by almost a unanimity of decisions, that telegraph and telephone companies arc common carriers and liable as such only under statutes in which they are so declared. And it is a pleasure to note the fact that most of the states have, or are enacting statutes which declare them common carriers: and yet, we could not have made this statement several years ago when the science of telegraphy was in its infancy, but after these many years of improvement and development of the art, we feel prone to change with the times and conditions respecting same.^** While the general rule, practiced by the courts of our country in pas- sing on issues of law presented to them for their consideration, is, that they arc to be controlled to a great extent by former decisions, customs and usages; yet we do not feel constrained to follow this rule in every particular. However, it is very unsafe and im])roper to depart from these old usages whenever the time to do so will not ])crmit, but in an era of progress, as we now live in, there must be changes in those laws to meet the needs and conditions of the times, and yet this is seldom done, except by legislation. A law, either common or statutory, which was sufficient to meet all the demand:? of a good government twenty, or may be not so many years since, may -•State V. Citizen's Tel. Co., above =» West. U. Tel. Co. v. Tyler, 74 II!. cited. 1G8, 24 Am. Rep. 270. 36 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 30 be wliolly iuadequate for the general welfare of society now and should therefore be changed accordingly. There has been such an improvement in the method of transmitting messages by electricity that the common-law theory with respect to the legal status of tele- graph companies should be amended by statutoiy laws. They have become as equally important to the commercial interest of the world as that of any common carrier of goods. They are agents of the government and have the power of exercising the right of eminent domain, without which, they could not invade the private property of an individual w^ithout his consent. With all these privileges granted by the government, and the almost perfect control over the art of telegraphy by the late and modern improvements, it is but fair and just that they be placed under almost if not the same restric- tions as that which the common law imposes on common carriers. § 31. Common carriers in absence of statute are not — reason. Telegraph and telephone companies are not common carriers in the absence of statutes making them such.^^ And yet, there seems to be a misun'derstanding among a few of the courts on this subject, and this, too, in the absence of statutes. These courts fail to see that in order to be liable as common carriers, they must be insurers of a cor- rect transmission of messages as well as to serve all impartially who apply to them. If it were not necessary under the common law for them to be insurers of a correct transmission in order to be liable as common carriers, then, as a matter of fact, it would not be necessary for statutes to be enacted declaring them common carriers; for it is held by the common law that they are so much like common carriers as that they must serve the public in good faith and impartially. They are insurers of a correct transmission of messages only when they fail to exercise due care in the transmission, and in order to "Birkett v. West. U. Tel. Co.. 10.3 868, 38 Am. Rep. 356: Lassier v. Mich. 361, 61 N. W. 645. .50 Am. St. West. U. Tel. Co., 89 N. C. 334; Rep. 374, 33 L. R. A. 404; Kiley v. United States Tel. Co. v. Gildersleeve, West. U. Tel. Co., 109 N. Y. 231; Red- 29 Md. 232, 96 Am. Dec. 519; Hart v. path V. West. U. Tel. Co.. 112 Mass. West. U. Tel. Co., 66 Cal. 579, 6 Pac. 71, 17 Am. Rep. 69; Clonent v. West. 637, 56 Am. Rep. 119; West. U. Tel. U. Tel. Co., 137 Mass. 463; Becker v. Co. v. Hearue, 77 Tex. 83. West. U. Tel. Co., 11 Neb. 87, 7 X. W. (^32] AS TO COM.MOX CARRIERS. ST make them absolutely and unconditionally liable for any incorrect- ness in the sending of the messages, except Avhen prevented by the act of God or the pul)lic enemy, it must be done by statutory enact- ments. § 32. Reasonableness of statutes — making them common carriers. Many of the most important business transactions of the world depend for their successful consummation upon the accuracy with which telegi'aph companies transmit the messages received by them. Often the messages are of the utmost importance to either the sender or addressee, and a failure to make an accurate and correct transmis- sion of these would cause them very great damage. Public policy, the protection of the property rights of the public, the safety of the people with whom they carr^^ on business, all require a degTee of care commensurate with the magnitude of the public interest involved. Therefore, a clear and definite understanding of these companies' liabilities should be known by the public and not subject those with whom they deal to be forever and eternally troubled, harassed and annoyed by conditions, stipulations and limitations of liability made by such companies and forced upon the public. There is no more rea- son w^hy an individual should l)c bound by the laws of the state than telegraph companies. If the i)assage of such laws have the effect to make the individual a better citizen and prevent him from commit- ting wrongs ; or, in other words, if they induce him to be more care- ful and particular in liis business transactions with his fellowman, the same reason should apply to laws pertaining to telegTaph and tele- phone companies. If a telegraph company know^s that it w-ill be lia- ble absolutely and unconditionally to its patrons for a failure to make a correct transmission of all the messages delivered to it for transmis- sion, the company will be much more careful and ]5articular in look- ing after its business, than it would if it could limit by stipulation its own liability. Such statutes bring about better service to the public and for this reason the public receives a more valuable consideration in return for the many rights and privileges granted the company, and which are not enjoyed by the individuals, thereby making them more equitable both to the public and to the company.-- ==West. U. Tel. Co. v. Kemp, 44 Neb. 1!)4, U2 X. W. 451, 4S Am. St. Eep. 723. 38 TELEGRAPH A:N^D TELEPHONE COMPANIES. [<^ 33 § 33. Statutes superior to any agreement. These statutes are superior to any agreement made by a telegraph company. They enter into and become a part of the agreement made between the company and its patrons, and none of these agreements can be made so as to be in conflict with them; otherwise they will be void. The telegraph companies are bound by the laws of the state as much as any inhabitant thereof, and these statutes, therefore, al- ways become a part of the contract made wuth the patron for the transmission of messages. That is, the telegraph company cannot ignore the law and set itself up as having superior power to the states to make laws, but must obey the latter and transmit messages in ac- cordance with such law or be liable for its failure in that respect.-^ § 34. Beyond the limit of the state. A statutory provision that "any telegraph company is hereby de- clared to be liable for the non-delivery of dispatches intrusted to its care, and for all mistakes in transmitting messages made by any per- son in its employ ; . . . and any such telegraph company shall not be exempted from any such liability by reason of any clause, con- ditions, or agreement contained in its printed blanks," is equitable, fair, and obligatory on all telegraph companies doing business in the state, and applies to such companies when contracting to correctly send a message to another state.^* They are not penal statutes and thereby not binding on the company beyond the state. They are a part of the contract of sending and a failure to transmit correctly to Its destination, which may be within another state, is a breach thereof and the party injured thereby becomes entitled to all damages actu- ally flowing therefrom, or such as was presumed to have been contem- plated at the time the contract was made, as a result of such breach.-" ^Kemp V. West. U. Tel. Co., 28 Neb. said: "T'.ie contract was made at Pa- 661 44 N. W. 1084. 26 Am. St. Rep. pillion within this state and tlie de- 3g3 fendant andertook to transmit correct- ^ Kemp V. West. U. Tel. Co., 28 Neb. ly the message to Kansas City. It did 661, 44 N. W. 1084, 26 Am. St. Rep. not do so. The contract of the defend- ggg ant, therefore, was broken, and the ^ Kemp V. West. U. Tel. Co., cited in plaintiff tliereby sustained damages, note 24, 29. The court in this case. The place where part of the service <^ ;36] AS TO coMMOisr carriers. 39 § 35. Substantial compliance with form of message. These statutes do not mean, when declaring telegraph companies to be common carriers that the messages must be transmitted in the exact words of the message received by the company, but a substantial compliance with the words and language is all that is necessary, pro- vided the substance of the message has been transmitted, and no harm has been done. No better reason for such a rule can be given than that of Judge Campbell who said : "Can it be supposed that for changing my signature or address from Campbell to Camel, or Cam- pel, or Cambelle or Cowmel, according to the form of writing which is sometimes met with, in a message sent by me or to me, and promptly delivered, and accomplishing the purpose, and doing no harm, the penalty would be incurred ? To so hold would impute to the legis- lature a spirit of injustice and cruelty that would seriously reflect on its attempt to legislate in this matter for the public interest."-^ § 36. Prima facie negligence. Where a telegraph company fails to transmit a message correctly, it is prima facie evidence of the company's negligence. So, in an ac- tion brought to recover damages for the erroneous tiansmission of a telegraphic message, proof by the plaintiff of the contract, which may be implied by the delivery of the message to be transmitted, and its acceptance by the defendant's agent, and of the breach, makes out a prima facie case ; and the plaintiff need not go further and show any negligence or omission of the defendant.^'^ If the failure was not was to be performed can make no dif- justly assumed that the legislature had ference; the contract was made here, in view not only "reasonable time" for and was to be in part performed in delivery, but reasonable conformity to this state, and the defendant is liable the terms of the message so as to pre- for the breach thereof. sent it to the sendee in such time as to ^^ West. U. Tel. Co. v. Clark, 14 So. effect the purpose for which it is sent." 452. The court further sa,id: "If the "Pearson v. West. U. Tel. Co., 124 message transmitted and delivered New York 256, 21 Am. St. Rep. 662; must be a reproduction verbatim et lit- West. U. Tel. Co. v. Short, 53 Ark. eratim et jninctuatim, of that written 434, 14 S. W. 649; Eeed v. West. U. to be sent or the penalty denounced Tel. Co., 135 iMo. 661, 58 Am. St. Rep. by the section may be recovered, the 609, 34 L. R. A. 492; West. U. Tel. statute is needlessly severe. No inter- Co. v. Blanchard, 08 Ga. 299, 45 Am. est requires such nicety, and it may be Rep. 480; Tyler v. West. U. Tel. Co., 40 TELEGRAPH AJv^D TELEPHOTCE C0MPA:NIKS. ["^ 38 the result of negligence tlie means of showing that fact is almost in- variably within the exclusive possession of the company. To require the sender to prove the negligence, after showing the mistake, would be to require in many cases an impossibility, not infrequently result- ing in enabling the company to evade a just liability.-^ § 37. Cannot exempt themselves by contract. Telegraph companies are — and that, too, in the absence of a statute — so far common carriers that they cannot exempt themselves from liability for the consequences of their own negligence or that of their servants by a contract made between them and the sender. Tele- graph companies, though not common carriers, are engaged in a business that is, in its nature, almost, if not quite, as important to the public as that of carriers. Like common carriers, they cannot contract with their employers for an exemption from liability for the consequence of their own negligence.^^ § 38. Public servants must serve the public impartially and in good faith. Telegraph companies are not common carriers, in the absence of statutes, in that they are not insurers of correct transmission of mes- sages, but they are common carriers to the extent that they must serve all alike who apply to them for services wdiich falls within the scope GO 111. 421, 14 Am. Rep. 38; Smith Co., Gl Vt. 461, 17 Atl. 776, 15 Am. St. V. West. U. Tel. Co., 57 Mo. App. 259; Rep. 917: Brown v. Postal Tel. Co.. Telegraph Co. v. Griswold, 37 Ohio St. Ill N. Car. 187, 16 S. E. 179. 17 L. R. 301, 41 Am. Rep. 500; Bartlett v. A. 648, S2 Am. St. Rep. 793; Pacific West. U. Tel. Co., 62 Me. 209, 16 Am. Tel. Co. v. Underwood, 37 Neb. 315. 55 Rep. 437; West. U. Tel. Co. v. Carew, N. W. 1057, 40 Am. St. Rep. 490: 15 Mich. 525; Fowler v. West. U. Tel. Staney v. West. U. Tel. Co., 92 Ga. Co., 80 Me. 381, 15 Atl. 29, 6 Am.. St. 613, 18 S. E. 1018, 44 Am. St. Rep. jjep 211. 95; West. U. Tel. Co. v. Linn, 87 Tex. =»West. U. Tel Co. v. Short, 53 Ark. 7, 47 Am. St. Rep. 58; Reed v. West. ^34, ' U. Tel. Co., 135 Mo. 661, 37 S. W. 904. ^ Southern Express Co. v. Caldwell, 34 L. R. A. 492, 58 Am. St. Rep. 609 : 21 Wall. (U. S.) 269; Smith v. West. West. U. Tel. Co. v. Eubanks, 100 Ky., U. Tel. Co., 83 Ky. 104, 4 Am. St. Rep. 591, 36 L. R. A. 711, 66 Am. St. Rep. 126; Pepper v. Tel. Co., 87 Tenn. 554, 361; Barnes v. West. U. Tel. Co., 24 11 S. W\ 783, 4 L. R. A. 660, 10 Am. Nev. 125, 77 Am. St. Rep. 791, 50 Pac. St. Rep. 699; Gillis v. West. U. Tel. 438. § 30] AS TO COMMON CAIiKlKKS. 41 of their business.'"^ Whenever they so hold themselves out to the peo- ple, after having obtained the power of exercising the right of emi- nent domain, they then become public servants to be controlled by the public. The public, means the people, no one of whose privi- 'leges are greater or whose favors are more acceptable than any other citizen. They must be served as one people, and in the same man- ner by all who place themselves before the public as public servants. Whenever they are applied to by any one to perform a duty which falls within their corporate powers, the same must be done punctual- ly, impartially and in good faith. It is a duty they owe to the public — to the people — which any servant owes to his master, and they must look to the public as if it were one master. "For one of these companies not to receive or not to transmit and deliver a dispatch Avhen it ought to do so, is more than a refusal to contract or than the breach of a contract; it is a wrong as pronounced as would be that of a person who should forcibly exclude another from the telegraph office, and prevent him from handing in a dispatch which he desired to lodge for transmission."^^ § 39. Exception to rule. There arc conditions and exceptions to this rule as is generally the case. For instance, these companies must first be compensated or an offer made to compensate them for sending the message. They must serve all impartially who apply, but they cannot be compelled to do *" West. U. Tel. Co. v. Dubois, 128 111. carriers in the strict sense of the 248. 21 N. E. 4, 15 Am. St. Rep. 109; term." Fowler v. West. U. Tel. Co.. State V. Bell Tel. Co., 10 Cent. L. J. Am. St. Rep. 213: Inter Ocean Puh. 438, 11 Cent. L. J. 359, 22 Alb. L. J. Co. v. Ass'd Press, 184 111. 438. 48 L- 3G4; Stale v. Bell Tel. Co., 23 Fed. 539, R. A. 56S. 56 K E. 852. They have also reported in note to 59 Am. St. Rep. no right to discriminate between per- 172. It uas said on this point: "It sons and corporations, and courts will is now perfectly well settled, by the interpose bj' writs of mandate in favor gi'eat weight of judicial authoritj^ that of persons to whom the use of the tel- although telegraph companies are en- pplione is denied. Central U. Tel. Co. gaged in wliat may appropriately be v. Falley, 10 Am. St. Rep. 131. formed a jiublic employment, and are, "Gray v. West. U. Tel. Co.. 87 Ga. therefore, bound to transmit, for all 350, 27 Am. St. Rop. 260, 14 L. R. A. persons, messages presented to them 95. for that purpose, they are not coimnon 4:2 TELEGEAPH AND TELEPHONE OOMPANIES. [<§, 39 SO until thej are paid or an offer is made to pay for their services ; jet these charges must be the same to all since they are regulated by the government. They should be presented within office or legal hours ; as a telegraph company would not be compelled to receive and transmit a telegTam after nighttime, if it were not the rule for it to do so; neither are they under obligations to transmit news on Sun- day, where such it not the custom. There are some statutes which limit the kind of messages to be transmitted ; to enforce these, pen- alties are imposed on the violators of such statutes. They need not transmit messages in regard to market reports; nor need they fur- nish "bucket-shops" with market quotations. Again, a telegraph com- pany could not be compelled to receive for transmission a message which was open to the charge of indecency or profanity, and perhaps other vices, or expressed in language which might condemn it; but unless the tone or expression was such as would subject the company or any of its servants to an indictment or a civil action, they would be in duty bound to accept and transmit the message.^^ They are not to consider the subject-matter, unless it shows on its face that the company would be liable to a criminal prosecution or subject it- self to an action in tort ; for there are many messages, such as cipher telegrams, which are not understood by the company, and to require them to stop to consider the subject-matter of every message would work a hardship not only on themselves, but also on the public.^^ § 40. Duty to forward message in order of time received. It is the duty of a telegraph company to forward messages in the order of time in which they are received, unless the company is under obligations, by statute or public policy, to give precedent to certain messages, as those of a governmental nature or such as are of great importance."* It is an obligation they owe to the public, to treat each and every one who applies to them in good faith and impartially, '^Each of these conditions are fuller ■''* Davis v. West. U. Tel. Co., 1 Cen. treated in other parts of this work and Sup. Ct. 100; Mackay v. West. U. Tel. for this reason, we have not cited ref- Co., 16 Nev. 222; Allen Tel. Cases 563; erences. West. U. Tel. Co. v. Wnrd., 23 Ind. **West. U. Tel. Co. v. Ferguson, 57 377, 85 Am. Dec. 462. Ind. 495. § 41] AS TO COM^rON CARRIERS. 43 and should they delay the transmission of a telegram in favoi of one later received, favoritism and impartiality would be sliowm, which might cause serious injury to the sender, to whom they would he lia- ble. The general rule of law that as to all valid contracts the first in time have precedence over those afterwards made, governs contracts made with telegraph companies for transmitting messages ; therefore, it is the duty of the company to carry out its part of the contract by sending messages in the order of time in which the contracts are made or, in other words, in the order of time in which they are received. There are exceptions to this rule where the company is under obli- gations, either by statute or public policy, to give precedence to other messages. Governmental messages have precedence over private tel- egrams. These concern the whole people, and if they were not enti- tled to a preference over private messages, more serious and greater harm would, very probably, be inflicted than if they did not have these privileges ; and yet, there might be instances when private mes- sages would be of such great importance, as would entitle them to almost, if not, an equal privilege as that given in governmental mes- sages. If the operator knows that the message- should be sent im- mediately, or great bodily harm would be done, it then becomes of such great importance as would give it precedence. There are sta- tutes in SQme states which give private messages precedence over others, where its mission is in regard to serious illness or death; but the general rule is that they must be forwarded in the order of time in which they are received. The legislature may require the com- pany to give precedence to such messages as are sent out by the of- ficers of the government, and in the absence of this, public policy might demand this right. The agent of the company should judge the character of the person who presents himself as an officer of the government and the nature of the subject-matter before giving the message preference, and this cannot always be correctly done ; tlie agent labors under the same disadvantage in determining the im- portance of a private message, and for this reason the rule should be closely adhered to. § 41. Should not disclose the message. It is the duty of a telegraph or telephone company to abstain from 'lisclosing or using the contents of a message which it receives for 44 TELEGRAPH AND TELEPHONE COMPANIES. [^ 41 transmission.^^ It is as much a public duty for these companies to preserve the secrecy of the contents of messages delivered to them for transmission as it is to serve the public impartially ; and if they are guilty of a willful breach of such duty, they will be liable for all dam- ages arising therefrom. There are statutes in some states which im- pose a penalty on these companies and those to whom messages are intrusted for transmission, for using or suffering to be used, or will- fully divulging, the contents of same. It is generally held by the courts that in the absence of such statutes, they are only liable for a breach of contract, if for anything/''^' It is liold by the courts that a telegram is not a privilege communication and no statute in either of the states of the United States has made them so.^^ :Nreither is the telegraph companies operated by the government so that the tele- grams may have the same protection as is given messages through the mail. As was ably observed by Judge .Henry, while discussing this point: "TelesTaph lines are not operated by the government, which is in no manner engaged in the business of transmitting telegraphic messages. It may enact laws in relation to them, as to other cor- porations, but has no business connection with them. On the other hand, postal facilities were established by Congress; the mails are carried by the government througli its own agents, and penal statutes protect communications sent through the mail;"^^ he further says: "there is no statute of this state or principle of law which places a telegram on a different ground from that which any other communi- cation occupies, made by one through another, to a third party, with respect to the liability of the confidant to be called as a witness to produce it and testify to it. There is no such analogy between the transmission of communications by mail and their transmission by telegraph as would justify the application to the latter of the princi- ples which obtain wdth respect to the former ; and certainly penal stat- utes in relation to one cannot by the court be declared applicable to " Scott and Jarnagin on Telegraphs, gram wliere subject is iiioro fully dis- sec. 136-138; Gray on Telegraphs, sec. cussed. 25; Redfield on Carriers, see. 567; ^^ See Chapter on Trivilege Commu- Bank of California v. West. U. Tel. Co., nication. .52 Cal. 280. ^ Ex parte Brown, 72 Mo. 83, -S7 ^ See elsewhere disclosure of a tele- Am. Eep. 428. <§ 41] AS TO COMMON CARRIERS. 45 tiie other.""'"^ There are some, however, who urge that the same rulr could apply to the telegraphic communications and those carried on through the mail, although we feel safe in accepting the above re- marks of Judge Henry. The postal system is under the absolute con- trol of Congress, while the telegraph companies are not. The laws under which the former are carried on did n<»t contemplate making telegraphic communications a part of the postal system, and before they can, there must be laws passed which will include these compan- ies. It is true that a vast amount of trade, traffic and business is transacted through this medium and on account of which they liave become almost equal in importance to the commercial world with the postal system, but before they can come under and be con- trolled by the laws of the latter, there must be statutes passed to that effect. '•Ex parte Brown, 72 :\[o. 83, 37 Am. Pvep. 428. CHAPTER IV. CORPORATE RIGHTS AND FRANCHISES. § 42. Definition. 43. Franchise and charter distinguished. 44. Same continued — distinction between franchise and license. 45. Kinds of franchises. 46. Alienability of franchise — primary. 47. Same continued — secondary. 48. Same continued — leases. 49. Same continued — legislature may authorize alienation. § 42. Definition. All persons who undertake to create any kind of a corporation must first obtain from the state the right or privilege of becoming a corporation and doing such business as they may desire under same. The right or privilege is their franchise. ' It is hardly necessary to go into the full nature of a franchise, as the subject is one to be treated under a work on corporations, but it will be our pleasure to say a few things about franchises as explanatory of remarks which will neces- sarily follow as to the vendibility of franchises. In discussing this subject, we will first define the term "franchise," and then specify the different kinds. The legal idea of a franchise seems to be a power or privilege conferred by the state upon an individual, upon a collec- tion of individuals, or upon an incorporated body, not possessed by the inhabitants of the state as of common right. Finch defines franchise "to be branches of the royal prerogative subsisting in the hands of the subject by grant from the Iving."^ Under our government and laws this definition would not be strictly correct. Here they spring from contracts between the sovereign power and a private cit- izen, made upon a valuable consideration, for purpose of public ben- efit as well as individual advantage.^ Chancellor Kent says : "Fran; chises are privileges conferred by gi-ant from the government, vested 1 Cruise Di;?est 278. This is substan- -State v. Real Estate Bank, 5 Ark. tially the definition of Blackstone, 2 ,59.5, 41 Am. Dec. 109. Bl. Com. 37. (46) <^ 44] COEPOKATE EIGHTS AND rUAXCHISES. 47 in private individuals." ^ A franchise is nothing more than the right or privilege of being a corporation, and of doing such things, and such things only, as are authorized by the corporation's charter.'* Such right or franchise is defined by Bouvier to be "a certain privi- lege conferred by grant from government, and vested in individ- uals." ^ § 43, Franchise and charter distinguished. There is a distinction between a franchise and a charter. A char- ter contains the grant of a franchise, but it is not the franchise itself. There is generally no evidence that a franchise has been granted ex- cept the charter which contains the grant. The constitutional in- hibition against impairing the obligation of contracts is not operative upon the charter but upon the contract which the charter contains, and protects franchises because they are valuable property or contract rights.*' § 44. Same continued — distinction between franchise and license. It is said by some that there is a distinction between a privilege granted by the legislature and a municipal license, in that a muni- cipal corporation cannot grant a franchise but can grant only a mere license.'^ The distinction is believed to be untenable, for they are both acquired from the legislature, one directly, and the other indi- rectly or through the municipal corporation, and in each privilege are conferred rights which are not enjoyed by the inhabitants as of common right.^ Another distinction exists between a privilege granted to the corporation or its members as corporators, and a mere personal privilege annexed by state or charter to membership in a corporation ; as an exemption of its servants or employees from work- ing on the public roads, serving as jurors or serving in the army. Such ^3 Kent Com. 458. 4 Neb. 416; Augusta Bank v. Earle, 13 '♦Fietsani v. Hay, 122 111. 293, 3 Am. Pet. (U. S.) 519, 10 Led. 274. St. Rep. 493, 13 N. E. 901. "Oakland R. R. Co. v. Oakland, etc.. " 1 Bouv. L. Diet. See following Co.. 45 Cal. 3G5. cases for other definitions. State v. ' Denver, etc., R. Co. v. Denver City Western Irrigating Canal Co., 40 Kan. R. Co., 2 Colo. 673. 06, 19 Pac. 34!). 10 Am. St. Rep. 166; « State v. East Cleveland R. Co., ti .Vbbott V. OuKilia Smithing, etc., Co., Ohio Cir. Ct. 318. 4:8 TELEGKAPII AXD TELEPHONE COMPANIES. [§ 44 an exemption is held b}' some courts as a mere personal privilege,^ by others it is held tliat it is not a mere personal privilege to the em- ployees of the corporation ; and still by others, it is held a right or privilege of the corporation itself J "^ § 45. Kinds of franchises. Enough has been said about the definition of a franchise ; so we shall now consider the kinds or classes of franchises which may be vested in corporations. There are two kinds of franchises, and it is necessary to have a clear understanding of each in order to be able to distinguish between the two and see why one is alienable and the other is not. There is a primary franchise and a secondary franchise. The primar)^ franchise is the right of being or existing as a corpora- tion. It is a right granted by the legislature to a body of men to be and act as an artificial person, without incurring individual liabil- ity. It is the right to be, to exist, to be known, and to l)c recognized as a corporation and clothed with such rights and imnninities as are not enjoyed by the people in common. ^^ The secondary franchise ^Neeley v. State, 4 Lea. (Tenn.) 316. "Johnson v. State, 88 Ala. 176, 7 So. 253; Zimmer v. State, 30 Ark. 677. The latter is a mere personal privilege and is subject to legislative revocation or control. In re Scranton, 74 111. IGl; Bragg v. People, 78 111. 328; Bra- nish V. State, 6 Baxt. (Tenn.) 5.30; Dumme v. People, 94 111. 120, 34 Am. Rep. 213. "^ While discussing this question, Judge Sawyer, in the course of his very able opinion said : "The creative act necessarily extends only to the bringing into being of an artificial per- son, with the capacit}' stated among which is a capacity to receive and en- joy in common grants and privileges immunities; that is to say a capacity to receive and enjoy such grants, priv- ileges and immunities as may be made either at the time of the creation or any other time. 'I'lic crciition of the being with the capacity to receive grants, is one thing; the granting of other privileges and immunities, which it has the cajjacity to receive when created, is another. When such a be- ing is bvonglit into existence, a corpor- ation has been created. A legal entity, a person has been created with a ca- ])acity to do by its corporate name, such things as the legislative power may permit, and receive such grants of such rights and privileges and of such property, as the legislature itself or ])i'iviite persons with the legislative permissi'ju may give. But I do not un- derstand that every right, privilege, or grant that can be conferred upon a cor- poration must be given simultaneousl.y witli the creative act of incorporation. On tlie contrary. 1 suppose the artifi- cial being nnist be created with a ca- ])acity to r('cci\e before anything can l)e receiv.'d. The riglit to be a corpor- § 40] CORrORATE RIGHTS AND FRANCHISES. 49 is the right to construct, operate and maintain a corporation. The one is the right to be a corporation and the other is the right to carry on and operate the same after the jmrnary franchise has been vested in the corporation. The secondary franchise cannot exist until the first has been vested in the corporators and it would be needless to vest the latter — and jet it may be done — in the corporators with- out the former boinff, or to be, in existence. In other words, to be more specific in the matter and to apply the general corporation law in regard to the point at issue to the subject of this treatise, the pri- mary franchise vested in a telegraph or a telephone company is the right vested in the corporation or corporators to exist as one of these companies, and the secondary franchise is the privilege to construct and maintain its lines and to carry on and operate the business of transmitting intelligence by means of electricity. § 46. Alienability of franchise — primary. Having considered the definition of a franchise and the different kinds, we hope the reader will l)e tlie more able to see why one fran- chise may under some cirenmstances be alienated while the other may not ; and this we shall now discuss. The primary franchise, or the right or privilege to be a telegraph or telephone company, cannot lie alienated, either absolutely or conditionally, without the consent of the creating- power. ^- There is by no means the same harmony ation is itself a separate distinct and " Commonwealth v. Smith, 10 Allen independent franchise, complete Avithin 448, 87 Am. Doe. 072; Richardson v. itself, and a corporation having been Sibley, 11 Allen 65, 87 Am. Dec. 700; created, enjoying this franchise, may Penn. R. R. Co. v. St. Louis, etc., R. receive a giant and enjoy other distinct Co., 118 U. S. 290, 6 S. Ct. Rep. 1094: and independent franchises, such as Lauman v. Lebanon Valley R. Co.. 30 may he u;rantcd to and enjoyed by nat- Pa. St. 42, 72 Am. Dec. 685; Roper v. ural persons. But because it enjoys McWhorter, 77 Va. 214; Hall. v. Siilli- the latter franchises, they do not, van R. R. Co., 2 Red. Am. Ry. 621; therefore, constitute a part of the dis- Gue v. Tide- Water Canal Co., 24 How. tinct and independent essential fran- 257 ; Morgan v. Louisiana, 93 U. S. chise — the right to be a corporation. 217; Coe a. Colimibus, etc., R. Co., 10 They are additional franchises given to Ohio St. 372, 75 Am. Dec. 518; Clark the corporation, and not parts of the v. Omaha, etc., R. Co., 4 Xeb. 458: corporation itself — not of the essence Black v. Delaware, etc.. Canal Co., 24 of the corporation." Southern, etc., X. J. Eq. 465; Ammant v. Xew Alex- Co. V. Orton, 32 Fed. 4.")7, 473. andria Turnpikt- Co., 13 Serg. and R. T. & T.— 4 50 TELEGRAPH AIs^D TELEPHONE COMPANIES. [§ 46 of opinion as to the fundamental principles upon ^vliicli the doctrine is based. The followinj^- reasons have been assigned by the courts for its existence : A franchise is a personal trust, and the state has there- fore a right to declare who shall be the transferee of such trust ;^^ a corporation enjoying public franchises is an agent of the state and on the ordinary principles of agency is incapable of delegating its powers without the" permission of the principal;^'* a grant of a public franchise is a contract between the state and the grantee, by which the latter undertakes to perform certain public duties, from the per- formance of which he cannot release himself without the consent of the other contracting party; ^^ the powers of the grantee of a fran- 210, 15 Am. Dec. 593; Gulf etc., R. Co. V. Morris, 67 Texas 692; Buflfett v. Great W. E. R. Co., 25 111. 353; Ar- ther V. Commercial Bank, 9 Smedes & M. 394, 4S Am. Dec. 719; Ragan v. Aiken, 9 Lea (Tenn.) 609, 42 Am. Rep. 684; Troy etc., R. Co. v. Kerr, 17 Barb. 581 ; Troy and Boston R. Co. v. Boston Hoosae Tunnel etc., R. Co., 86 N. Y. 107; Abbott v. Johnston, etc., R. Co., SO N. Y. 27, 36 Am. Dec. 572; People V. Albany etc., R. Co., 77 N. Y. 232; East Boston Freight Co. v. Hubbard, 10 Allen 459; Stockton v. Central R. Co., 50 N. J. Eq. 52; Fitsan v. Hay, 122 111. 293, 13 N. E. 501, 3 Am. St. Rep. 492; Bordstown etc., R. Co. v. Metcalf, 4 Mete. 199, 81 Am. Dec. 541; Kennebec etc., R. Co. v. Portland etc., R. Co., 59 Me. 9; State v. Consolida- tion Coal Co., 46 Md. 1; Richards v. Merrimac etc., R. Co., 44 N. H. 127; Pittsburg, etc., R. Co. v. Allegheny County, 03 Pa. St. 126. ^2 Sheplcy v. Atlantic, etc., R. Co., 55 Me. 395; Kennebec, etc., R. Co. v. Portland, etc., R. Co., 59 Me. 9; Bank of Middlesbury v. Edgerton, 30 Vt. 182; Miller v. Rutland, etc., R, Co., 30 Vt. 452; U. S. V. West. U. Tel. Co., 50 Fed. 28; U. S. v. Union Pac. R. Co., 160 U. S. 1. 16 S. Ct. Rep. 190; U. S. V. Northern Pac. R. Co., 120 Fed. 546; Reiff V. West. U. Tel. Co., 49 N. Y. Super. Ct. 441 ; Benedict v. W^est. U. Tel. Co., 9 Abb. X. Car. (N. Y.) 214. "Beman v. Rufford, 1 Sim. N. S. 569; Great Northern R. Co. v. Eastern Counties R. Co., 9 Hare. 300 ; Winch v. Birkenhead, etc., R. Co., 5 DeGex. & S. 562, 13 Eng. L. & Eg. 506; Richmond Water Works Co. v. Richmond L. R., 3 ch. Div. 82. 15 Thomas v. Railroad Co., 101 U. S. 83. In this case the court by Justice Miller, very ably said: "The principle is that where a corporation like a rail- road company has granted to it by charter a franchise in a large measure intended to be exercised for the public good, the due performance of those functions being the consideration of the public grant, any contract which disa- bles the corporation from performing those functions or by which it under- takes without the consent of the state, to transfer to others the rights and powers conferred by the charter, and to relieve the grantee of the burden which it imposes, is a violation of the con- tract with the state, and is void as against public policy." See also. Com. V. Smith, 10 Allen 448, 87 Am. Dec. 672; Roper v. :\Jc\Vhorter, 77 Va. 214; § 46] COKl'OKATE KKiJITS AND FRANCHISES. 51 .'liise like other grantees of the sovereignty are strictly limited by the iiistnimeiit of grant, and the existence of a power to alienate such a franchise camiot he inferred in Hu- absence of express statutorv- pro- visions; ^" transfer of franchise may sometimes be illegal, as tending to the establishment of mon()])olies.^' It has been held that a mort- gage deed Avhich ])rofesses and manifests an intent to convey the fran- chise of being a corporation will not be for that reason entirely void, bnt will be operative to convey the property, and perhaps also the secondary franchises, Ix'ing void only so far as it undertakes to con- vey the corporate capacity of the mortgagor. ^"^ Xeither can they bo alienated or seized under judicial process by creditors, without the consent of the legislature, because this would disable them from dis- charging the public duties which they have assumed and in consider- ation of which their franchises have been gTanted to them.^'' The fact jVrmiroe v. Thomas, 5 Cal. 470; Lau- iiian V. Lebanon, etc., K. Co., 30 Pa. St. 42, 72 Am. Dec. 685; Central Transportation Co. v. rullman Palace Co., 139 L. S. 24, 11 S. Ct. Rep. 478; Freeman v. Minneapolis, etc., R. Co., 2:5 Mo. 443; Kenton County Court v. Turnpike Co., 10 Bush 529; Lekin v. Railroad Co., 13 Or. 436, 11 Pac. 68, 57 Am. Rep. 25; Pierce v. Emery, 32 N. II. 484; Railroad Co. v. Brown, 17 Wall. 445; Chicago Gas Light Co. V. People's Gas Light Co., 121 111. 530, 13 N. E. 169, 2 Am. St. Rep. 1'24: Black V. Delaware, etc.. Canal Co., 22 X. J. Eq. 130; New York, etc., R. Co. V. Winans, 17 How. 30. "Thoma.-; v. Railroad Co., 101 U. S. 82; Board of Corns, of Tippecanoe County V. Lafayette, etc., R. Co., 50 Ind. 85; People v. Chicago Trust Co., 130 111. 2(iS, 22 X. E. 798, 17 Am. St. Rep. 310, S L. R. A. 497n; Lauman v. Lebanon, etc.. R. Co.. 30 Pa. St. 42, 72 Am. Dec. 085; Peim. R. Co. v. St. Louis, etc., R. Co., 118 C S. -I'M). C, S. Ct. Rep. 1094; Richardson v. Sib- ley, 11 Allen 65, 87 Am. Dec. 700; Ab- bott V. Johnston, etc., R. Co.. 80 X. V. 27, 36 Am. Rep. 572; Black v. Del- aware, etc., Canal Co., 24 N. J. Eq. 464; Central Trans. Co. v. Pullman Car Co., 139 U. S. 24. 11 S. Ct. Rep. 478. " State V. Standard Oil Co., 49 Ohio St. 137, 30 X. E. 279, 34 Am. St. Rep. 541, 15 L. R. A. 145. '" Butler V. Rahm, 46 Md. 541 ; Pull- man V. Cincinnati, etc., R. Co., 20 Fed. Cas. Xo. 11461, 4 Biss 35; Fietsam v. Hay, 122 HI. 293, 13 X^ E. 501, 3 Am. St. Rep. 492.' ''Hays V. Ottawa, etc., R. Co.. 61 111. 422; Tippecanoe County v. Lafay- ette, etc., R. Co., 50 Ind. 85; Anderson V. Cin. Sou. R. Co., 86 Ky. 44, 5 S. W. 49, 9 Ky. L. Rep. 303. 9 Am. St. Rep. 263; Treadwell v. Salisbury Mfg. Co., 7 Gray 393. 06 Am. Dec. 490: Charlotte v. Omaha, etc., R. Co., 26 Xeb. 159, 4 L. R. A. 135, 41 X. W. 1106; Richards v. iNIerrimac, etc., R. Co., 44 X\ H. 127; Susquehana Canal Co. V. Bonham, 9 Watts & S. 27. 42 Am. Dec. 315: International, etc.. R. Co. V. Lskford. 77 Texas 274: Xaylec V. Alexandria, etc. R. Co., 83 Va. 707. 3 S. E. 369, 5 Am. St. Rep. 308; Gibb> 52 TELEGKAPH AXD TELiaMIONE COMPANIES, [§ 46 that the alienation Avonld be beneficial to the pecuniary interest of both the telegraph or telephone companies and also the public, is not a matter to be considered by the court in a question of this nature.^^ And it makes no difference who are the incorporators of the telegraph company and for what general purpose it Avas created. For instance, where a railroad company is authorized to construct, in connection with its railroad, a telegraph line ; to manage and control the same ; and to fix the rate of charges thereon ; a contract made in the absence of the legislative consent by which it undertakes to divest itself of this public duty, by transferring the privilege to another company, is ultra vires and void.-^ Some courts hold that an agreement entered into by a telegi-aph company with a similar company to divide earn- ings and expenses is neither ultra vires nor against public policy.^" § 47. Same continued — secondary. While there may ]3e some doubt entertained as to the right of a telegraph company to alienate its secondary franchise without the legislative consent, the prevailing doctrine is, however, that it has no right to make such a conveyance in any form whether by sale,^' lease or mortgage. There may be an exception to the rule in that it may sell all the personal property, or, at least so much thereof, as is not necessary for the purpose of discharging its public duties.^* V. Consolidated Gas Co., 130 U. S. 396, 87 Am. Dee. 700: Com. v. Smith, 10 !) S. Ct. .553 32 L. Ed. 970. Allen 448, 87 Am. Dec. G72; Worces- ^West. U.Tel. Co., 50 Fed. Rep. 28. ter'v. Western E. Corp., 4 Mete. 564; « Central Branch Union Pac. E. Co. Arther v. Com., etc., Bank, 9 Smede & V. West. U. Tel. Co., 3 Fed. 417. 1 M. 394, 48 Am. Dec. 719; Pierce v. McCrory 557; West. U. Tel. Co. v. U. Emery, 32 N. H. 484; Central Trans. Pac. Co.. 3 Fed. 1. 1 McCrory 581 : Co. v. Pullman Palace Car Co., 139 U. Atlantic^ etc., Tel. Co. v. Union Pac. S. 24, 11 S. Ct. 478, 25 L. Ed., 55; R Co 1 Fed 745, 1 McCrory 188, 541. Oregon E., etc., Co. v. Oregonian E. Co., Compare West. U. Tel. Co. v. Kansas 130 U. S. 1, 98 Ct. 409, 32 L. Ed. 837 Pacific E. Co., 4 Fed. 284; West. U. [reversing 22 Fed. 245, 10 Sawy. 464, Tel. Co. V. St. Joseph, etc., E. Co., 3 23 Fed. 232, 10 Sa^vy. 472]; Thomas Fed. 430, 1 McCrory 565; West. U. Tel. v. Western Jersey E. Co., 101 U. S. 71, Go. V. Union Pac. E. Co., 3 Fed. 423, 25 L. Ed. 950 ; New York, etc., E. Co. 1 McCrory 558. v. Wimans, 17 How. 31,_ 15 L. Ed. 27. =2 Benedict v. West. U. Tel. Co., 9 =^ Coe v. Columbus, etc., E. Co., 10 Abb. N. Gas. (N. Y.) 314. Ohio St. 372, 75 Am. Dec. 518; Arther «Eichardson v. Sibley, II Allen 05, v. Comuicnial Bank, 9 S. & :\r. 394, <§> 48] COKPORATK UrOIlTS AXD l-liA>ClIISES. 53 But it cannot ali('nat<:' the franchise to manage or control its lines, as this would result in the company becoming j^owerless to perform its public duties. Ami if it has public duties to discharge it can- not be alienated or seized under judicial ])rocess by creditors Avithout the consent of the legislature,-^ nor be levied on by execution;-*^ and should a telegraph company alienate its franchise to another company without statutory authority, it will be liable to third parties for all torts committed on them by their successors.-" Xor can it release it- self from its contract obligations on the claim that the agreement was ultra vires and against public policy.-** § 48. Same continued — leases. For the same reason that a telegraph company cannot alienate absolutely or conditionally its franchise of being a corporation, it can- not, by lease or any other contract, in the absence of legislative au- thority, turn over to another corporation its line and the use of its franchise, since, a lease might have the same effect as a sale of the property ;-^ however, it has been held that a telegraph company could lease its lines and equipments for a reasonable length of time.'"'" For instance, where a contract is entered into between two companies, whereby one leases to the other its franchises for a period of nine hundred and ninety -nine, or any great number of years, the lease 48 Am. Dee. 719. It may be conveyed ""Aimnant v. New Alexandria «!t by autbority of a legislative enactment Pitt. Turnpike Koad. 1.3 Serpent & to that effect. Thus, a franchise granted TJawle 210, 15 Am. Dec. 593. by a city to a telephone company "" Xagloe v. Alexandria, etc.. J\. Co.. to maintain it.s line in the streets of S3 Va. 707. 3 S. E. 3fifl, 5 Am. Pt. such city, may be transferred and sold Rep. 308. to another corporation without the con- "'Canal & C. R. Co. v. St. Charles sent of ihe municipality under a stat- St. R. Co. (La.). 11 So. 702. ute expressly authorizing corporations =» Thomas v. R. R. Co.. 101 U. S. to alienate their property. ^Michigan 71 : Penn. R. Co. v. St. Louis, etc., R. Tel. Co. V. St. Joseph, 121 Mich. 502. Co.. US T. S. 290, 6 S. Ct. Rep. SO X. \V. 383. 80 Am. St. Rep. 520. 1094; Oregon R. v. Oregonian R.. 130 47 L. R. A. S7n. T. S. 1. 9 S. Ct. Rep. 409; State v. -=> Treadmill v. Salisbuiy Mfg. Co.. 7 Atchison R. Co.. 24 Xeb. 143, 8 Am. Gray 393. 00 Am. Dec. 490; Xational St. Rep. 104, 38 X. W. 43. Foundry Works v. Oconto U. Co., 52 ="* Philadelphia v. West. U. Tel. Co.. Fed. 43; Gregory v. Blanchard. 98 Cal. H I'bila. (Pa.) 327. 33 Leg. Int. (Pa.) 311. 33 Pac. 199; Gulf, etc., R. Co. v. 129: West. U. Tel. Co. v. Baltimore, Newell. 73 Texas 334. 15 Am. St. Pvop. <'t«'.. U- Co.. 09 Md. 211. 783. 54: TELEGRAPH AjSTD TELEPHONE COMPANIES. <^ 48 woiild virtually, imder such circumstances, amount to a sale. Where a telegTaph company has a public duty to perform and the same has been acquired by a legislative grant, it cannot dispose of the obliga- tions so acquired, in any manner, without the consent of the grant- ing po"wer.^^ Where the legislature gives the right to a telegraph company to lease its line to another company, the grant does not nec- essarily carry vidth it the franchise of being a corporation, and there- by exempt the lessor from the responsibilities for which it has obli- gated itself.^- It is the duty of the parties to the contract of lease to abandon tlie contract, after they learn the true status of their condi- tion. § 49. Same continued — legislature may authorize alienation. The legislature may by express terms authorize a telegraph or tel- ephone company to alienate its franchise,"" but it must be by an ex- press grant or by reasonable implication. An unauthorized transfer of a franchise may be afterwards ratified by the legislature, but there must be an expressed intent on the part of this body to ratify the transfer.^* Where the right to alienate a franchise has been given by the state, a lease of such franchise may be implied from such grant. A mortgage may also be given on such property from the authority to sell, where a telegraph company has the consent of the state to alienate its franchise ; and where a sale has been consumma- ted under such authority, the purchasers thereof take the property subject to all the duties of the vendors.^^ " Riehketts v. Chespeake, etc., R. Co., iginal company. Such a sale took .33 W. V:i. 433, 10 S. E. 801, 25 Am. place afterward, and for some time af- St. Rep. 901, 7 L. R. A. 534; Gulf, ter the sale the purchasing company etc. R. Co. V. Newell, 73 Tex. 334, 15 gave the subscribers of the purchased Am. St. Rep. 788. company connections Avith its own sub- 22 Harmon v. Columbia, etc., R. Co., soribers. It was held that the purchas- 28 S. Car. 401, 13 Am. St. Rep. 68G. ing company, having bought Avith no- ^ Michigan Tel. Co. v. St. Joseph, tice, was bound to assume and carry 121 Mich. 502, 80 N. W. 383, 80 Am. out all the obligations of the old com- St. Rep. 520, 47 L. R. A. 87n. pany; and that its action in purchas- ■"-* Thomas v. Railroad Co., 101 U. S. ing the old company's subscribers with -I connections to its own lines operated ^'^An ordinance granting to a tele- as an acknowledgement by it of the giaph company the right to occupy the character of its assumed obligations, city streets stipulated that in the event and that it could not thereafter dis- of a sale by the company of its prop- continue such connections. Mahon v. erties, its vendee should be bound by ]\lich. Tel. Co., 93 N. W. 629. all the obligations imposed on the or- CHAPTER V. RIGHT OF WAY. S 50. DL'fiiiition. 51. Interest in land acquired. 52. Same continued — compensation. 53. Same continued — owner not estopped. 54. Further considered — how and from whom acquired. 55. Same continued — federal grant. 56. Same continued — what is granted. 57. Statutes defining what are post-roads, etc. 58. Must comply with conditions — character of. 59. Scope and effect of act — statute p rmissive only. 60. State cannot prohibit company from doing business therein on compliance with said act. 61. Same continued — exception to power — police regulations. 62. Does not interfere with right to compensation. 63. Same continued — reason of rule. 64. Same continued— along railroads— compensation, when al- lowed. 65. Same continued — compensation to road — reason for allow- ing. 66. Same continued— the act does not affect the right to com- pensation. 67. Same continued— right acquired by agreement. 68. Same continued — executive use — cannot be acquired. 69. Same continued— different rule when grant from United States. 70. Condemnation proceedings — must be under state statutes. 71. Act otherwise considered. 72. State grants. 73. On railroad, 74. Same continued— conditions not to interfere with running trains. 75. Same continued — award. 76. Canal — under same statutes. 77. The term "highway" embraces city streets. 78. Conditions of grantee. § 50. Definition. Ir wotiM !•(■ ].!■.. |»cM\ ill c.ui.-i.lerini: ilic ti'viii -riiilit of way" and the aecoiiii.aiiviuiiiiicl.lciits thcvciuulcr.to tiv>t li'ani whatis meant by such a term. .V ••ri-ht .if way." as ■.^^^\\vd to trli-rapli and telephone com- (55) 56 TELEGRAPH AXD TELEPIIOXE COMi'AMES. [<§ 50 panies, is the right held by these companies in the hmd on which their poles, gnvs and other similar appliances are erected ; and that, to a certain extent, over which their wires are strung. The exact property a telegraph or telephone company has to the land npon and over which its lines are constructed is not the same at all points. That which is possessed by them depends upon the manner in wdaich the right was acquired; whether by purchase, by grant, or by the exer- cise of the right of eminent domain. If the right is acquired by either of the first two ways, it wall be determined by the terms of the con- veyance or patent ; as, when a deed is made to one of these companies in which the right of way is described by metes and bounds, the exact property conveyed to the company will depend upon the construction of the deed. In the latter case the company would only possess an easement, the fee remaining in the original owner, except where it is otherwise provided by statute. § 51. Interest in land acquired. It seems veiy clear that the company, unless it is so expressed in the deed or patent, should not have the same interest in the land ly- ing between the poles and in the land over which the wires are stretch- ed, as it has in that on which the poles are erected. It is very true, unless the wires are strung near the surface of the ground, that the company has little use for this land between the poles and its use for former or other purposes is in no wise prevented, whether it lies along the public highway or over private property.^ We presume that there is no question but that it could be described in the deed so as to make a conveyance of it: but the question is, is the right of way over this ^A telegraph company by a judg- struct or repair the line, to enter upon ment condemning land for its use un- the strip condemned, doing as little der the eminent domain Act does not damage as possible. 1"lie com|);niy can acquire the fee to the land or the not cultivate such strip, or take e.xclu- right to use it for any other purpose sive pos.session of it or enjoy it for than to erect telegraph poles and sus- any other purpose, 'i'iie only exclusive pend wires upon them and maintain right of occu])ancy the cunipany ac- and repair the same, and use the quires is the ground occupied by the structure for telegraph purposes. This poles erected for telegraphic jmrposes. of course, gives the company the right i.ockie v. Aiiitnal l'. T<'1. f'o.. 103 111 at all times when necessary, to con- 401. § 5o] KIGHT OF WAV. 57 land coiiNevetl, or at least is the same interest therein conveyed as that on which the poles are erected, when its metes and bounds are not expressly stated ? We answer the question in the negative. It is not like the right of way of a railroad, since it is absolutely necessary for the latter to have the same interest in all the land on which its bed or embankment is built. In the case of a telegraph or telephone company, the land is of no use whatever to the company except to go upon for the purpose of constructing and keeping its lines in repair ; and when it is used for this purpose,the adjoining land as well as this, is almost as often used.^ § 52. Same continued — compensation. Both state and federal constitutions provide that private i)roperty shall not be taken for public use without just compensation first being made to the owner thereof, or secured to be made. This is a right given to every individual by the supreme law of the land for the pro- tection of his property, and without which he would be living in a state of nature, harassed and annoyed by his pilfering neighbors. It follows, therefore, that before a telegraph or telephone company can acquire a legal right of way, it must obtain the right either by deed, by patent, by prescription, or by payment of damages after proper condemnation proceedings; and if one of these companies acquires the right of w-ay not according to one of these methods, it will be prima facie guilty of trespass, and the owmer of the land may there- fore maintain an action of damages or ejectment at his election. § 53. Same continued — owner not estopped. In many cases telegraph and telephone companies enter upon the land of another Avithout the latter's knowledge or consent; but the fact that they do, or that he permitted them to do so, does not give the company a title to a right of way or estop him from maintaining an action f<>r damages ;•' and yet, it may pn^dnde him from main- = Lackio v. Mutual l'. Tel. Co.. lO:? Mauliattiui \\. Co.. 122n X. Y. 1. 10 111. 401. Aui. St. Kop. 461. 11 L. 11. A. ti;Uii : 'Baslifilod V. F.iuiiirc St. Tol. Co.. lirownson v. Albion Tol. Co., 93 X. \\'. IS X. Y. Snpp. 250; Alu-nclroth v. 201. CO 1.. K. .\. 420: :\lax\v«'!l v. Con- 5S TELEGRAPH AND TELEPHONE COMPANIES. [§ 53 taiuiiig an action of ejectment."* The mere failure of the landowner to order the company off of his land, or to hring an action against it as a trespasser until near the end of the statute of limitation, will not op- erate as a consent to its use and occupation ; but an unreasonable de- lay in such a case, in insisting upon damages, will be considered a waiver of damages by the owner. And should he stand by until the line is completed and in operation and public interest has become in- volved, he will be denied the right to maintain an action of eject- ment, or the right to enjoin them. His only remedy under such cir- cumstances is a proceeding brought to recover damages. § 54. Further considered — how and from whom acquired. Hax'ing briefly considered the nature and meaning of the term "right of way," we shall now apply ourselves to a somewhat lengthy discourse on the subject of the sources from which the right of way may be acquired, and the manner in which it is acquired under each. But in treating these two — that is, the sources from which the right of way may be acquired, and the manner in which it is acquired un- der each — we shall consider them together as nearly as possible. There are several different sources from which a right of way may be ac- quired. As for instance, it may be acquired by a gi*ant from the government or a federal grant ; or by a state grant ; or by a municipal grant ; or by an agreement with the o^mer of the land, when it is over ]>rivate land ; or by a contract with a railroad company, when it is to be constnicted along its roadbed. And first among these different sources to be discussed, we shall take up the subject of a federal grant. § 55. Same continued — federal grant. We now come to the subject of a right of way, acquired by a tele- graph company by a grant from the government; but before entering into the subject, we shall say a few things in regard to the nature of tral Dist., etc., Tel. Co., 57 W. Va. * Daflings v. Pittsburg, etc., Tel. Co., 121; Omaha v. Flood, 57 Neb. 124, 77 ?> Pits. Leg. J. U. S. (Pa.) 37, 14 York N. W. 379. Lf-'. Rec. (Pa.) 40. § 56] ' EIGHT OF WAY. 59 a federal graul. It" our fellow-lawyer, while reading tlii.s work,sbould become bored by a constant discourse of every subject wliicb is seem- ingly worthless to him in the ])r(S(iit case, and apparently foreign to the nuitter at issue, we only beg to humbly bow most graciously and apologize by saying that Avliile it may appear this way, we have deemed it best to deprive him of some of his time and pleasure in or- der that he may be the more able to understand and appreciate those legal principles which are to follow. A federal grant, broadly stated, is a conferring, by the federal government, of a franchise by charter, in which certain rights are given to a corporation not enjoyed as of conmion right; or a mode, or act of creating a title or interest in any person or coi-poration to land which had previously belonged to the granting power. In the present instance, it will Ix' our purpose to consider the first part of this definition — a franchise conferred upon a corporation. There is a difference between a grant from our gov- ernment and one from the crown with respect to the power of revoca- tion. With us, the grant is an executed contract made by the gov- ernment as one party to the contract and the corporation as the other ; neither can rescind or revoke the contract without the other's con- sent, unless the right has been reserved in some manner, or except for special causes and by the process of law.^ ]^o law can be passed by the supreme lawmaking power which would in effect annul or re- voke the gi-ant, as each individual has a constitutional guarantee that no law shall be passed which would impair the obligation of any of his contracts. While grants from the cro^\•n may be avoided, upon three grounds : First, where the crown professes to give a gi*eater es- tate than it possesses in the subject-matter of the grant ; second, where the same estate or part of same estate has already been granted to another ; and third, where the crown has been deceived in the consid- eration expressed in the grant.^ § 56. Same continued — what is granted. A federal grant of a right of way to a t('l('gra])h company is an easement or privilege conferred thereon for a valuable consideration, "^ Duncan v. ]'.oar(l. 2 X. & ^^. (S. " Cladstono v. Karl of Sandwich. 5 Car.) 400; Nichols v. Ilnhhard. 5 yi. & G. P95. 12 L. J. C. P. 41. See \V\ch. (S. Car.) 207. Com'th v. r.olcy. 1 Weekly Xotcs (Pa.) 303. 60 TELEGKAPII AXD TELEPHONE COMPANIES. [^ 56 after certain coiKlitions are complied with, to construct and operate a line of wires over lands in which it has a fee simple title. By an early act of Congress, and supplemental legislation thereto, a right of way was granted to telegTaph companies, over public lands and all military and post-roads of the United States, after complying with certain conditions therein prescribed."^ There is no question as to the constitutionality of these laws as they were enacted under the power given Congi'css to control interstate commerce. § 57. Statutes defining what are post-roads, etc. Similar statutes have been passed defining what shall be post-roads, and within the term are included all letter carriers or free delivery routes,^ and all railroads or parts of railroads over which mails are carried. ° Thus the streets of the District of Columbia are ^'post- ' United States statute authorizing' occupation of Post Roads by telegraph lines, U. S. Rev. Stat., §§5263-5268; 14 U. S. Stat, at Large 221; Act of July 24, 1866. "Any telegraph com- pany organized under the laws of any state, shall have the right to construct, maintain and operate telegraph lines over any part of the public domain, over and along any of the military or post roads of the United States, and under or across any of its navigable streams r>r waters; provided such lines are not so placed as to obstruct navi- gation, or interfere with the proper use of the military or post roads." U. S. Rev. Stat., § 5263. "Any such company may take from the public lands through which its line passes the necessary stone, timber and other materials for its poles, stations or other needful uses in constructing its line, and pre-empt such portion of the unoccupied puljl it- land as may l)e necessary for its sta- tions, not exceeding forty acres for each station: sucli stations to be not witliin fifteen miles of each other." U. S. Rev. Stat., §5264. The Act of :\Iarch 3, 1901, c. 832, providing for grants to telegraph companies of fran- chises in the Indian Territory necessa- rily annulled all previous conflicting grants made by any of the Indian na- tions. Muskogee Nat. Tel. Co. v. Hall, 55 C. C. A. 208, 118 Fed. Rep. 382, disapproving Muskogee Nat. Tel. Co. v. Hall (Ind. Ter. 1901) 64 S. W. 600. By Act of Congress of March 3, 1901 (31 U. S. Stat. L. 1084), the secretary of the interior is given full authority to grant of rights of way to telegraph lines in the territory and no line may he constructed there ^\ithout authority from him: Muskogee Nat. Tel. Co. v. Hall (Ind. Ter., 1901), 64 S. W. 600. *Act of Congress, June 18, 1872; U. S. Rev. Stat., §3964. See Toledo v. West. U. Tel. Co., 107 Fed. Rep. 10. 46 C. C. A. 111. "Act of Congress, June IS, 1872: I . S. llov. Stat., §3964. See case cited ill note 8. <§. 58] RIGHT OF WAY. 61 roads" within the iiuaiiing of the statute.^" It supersedes all con- flicting state legislation on the same subject.^^ § 58. Must comply with conditions — character of. iSTo telegraph company acquires any rights under these statutes un- til it has filed with the postmaster-general its written acceptance of all the conditions therein imposed.^- This question was settled in a case in which a telegraph company, in the exercise of the right of em- inent domain, instituted a proceeding to condemn and appropriate so much of a bridge, which was built across a navigable river in pur- suance of state and national legislation, as was necessary to support a line of wires proposed to be built thereon, and for the construction, maintenance and operation of same. The company owning the bridge, claiming that the condemnation proceeding was without autliority of law, brought an action to enjoin the construction of such lines. The court held in this case that before the company could exercise tlic right of eminent domain with respect to the crossing of the bridge, it would be necessary to file a written acceptance of all the conditions of these statutes. ^^ The obligations and restrictions to be accepted are important in their character; one of which is that the telegraph line should be so constructed and operated as not to obstruct the nav- igable streams and waters, or interfere with travel on military roads. ^^ Congress has intervened and has seen fit to make the filing of a writ- ten acceptance an essential prerequisite to the building of a telegraph line over a navigable stream, and to the enjoyment of the privileges '" Hewett V. West. U. Tel. Co., 4 al" of the restrictions and obligations Maekay.(D. C), 424. required. U. S. Rev. Stat., §5263. "Pensacola v. Tel. Co. v. West. U. '» Pacific, etc., Tel. Co. v. Chicago, Tel. Co., 2 Woods (U. S.) 643, aff'd etc., Bridge Co.. 3fi Kan. 113, 12 Pac. 9G U. S. 1; West. U. Tel. Co. v. At- 535. lantic. etc., Tel. Co.. 5 Nev. 102. Com- »U. S. Rev. Stat., §5263. In con- pare West. U. Tel. Co. v. New York, structing a line on a draw bridge, the 3S Fed. 552, 3 L. R. A. 449. line should be constructed so as not to '- "Before any telegraph company ex- interfere with the opening of the draw ovcising any of the poAvers and privi- span of the bridge, or otherwise ob- leges conferred, it shall file its written struct navigation. Pacific Mut. Tel. ucceptanoe with the post-master gener- Co. v. Chicago, etc.. Bridge Co., 36 Kan. 113, 12 Pac. 535. 62 TELEGRAPH AXD TELEPHONE COMPANIES. ["§» 58 conferred by that act; and its autlioritj is paramount. ^^ Before it can constiiK't a line of wires across a navigable stream, it must first have obtained the grant from Congress under these acts; with all of which conditions it must comply. And should a line of wires be con- structed along the bed of a navigable stream, without filing a written acceptance of the conditions stated in these statutes, and a steamer should be damaged by its anchor having been caught in the wires, the company will be liable for damages. -^^ § 59. Scope and effect of act — statute permissive only. It is held that this statute is permissive only:* and, that there is nothing in it which would imply that the permission to extend its lines along roads, not built or owned by the United States, or over and under navigable streams ; or over bridges not built or owned by the federal government, carries with it any exemption from ordinary bur- dens of taxation. It may also be affirmed that it carries with it no exemption from the ordinaiy burdens which may be cast upon those who would appropriate to their exclusive use any portion of the pub- lic highway.^" § 60. State cannot prohibit company from doing business therein on compliance with said act. The state cannot therefore by any specific statute prevent a tele- graph company from placing its lines along military and postroads; or stop the use of it after it has been placed there, after the company has complied with all the conditions of the statute. -"^^ The power of Congress to grant to these companies the right of way over these roads and across public lands is absolute, and this power is acquired by the authority conferred in Congress to regulate interstate commerce ; any law of a state which obstructs or burdens interstate commerce, or hin- ""Hewett V. West. U. Tel. Co., 4 inond v. Southern Bell Tel., etc.. Co., Mackay (D. C.) 424. 174 U. S. 761, 19 S. Ct. Rep. 778. ^'Rickmond, 4.3 Fed. 85. "St. Louis v. West. U. Tel. Co., 148 *St. Louis V. W. U. Tel. Co., 148 U. S. 92, 13 S. Ct. Rep. 485. U. S. 102; Pensacola Tel. Co. v. West. «West. U. Tel. Co. v. Att.-Gen., 125 U. Tel. Co., 96 U. S. 1 ; West. U. Tel. U. S. 530, 8 S. Ct. Rep. 961, quoted in Co. V. Att.-Gen., 125 U. S. 548; Rick- St. Louis v. West. U. Tel. Co., 148 U. S. 102. § 62] RIGHT OK WAY. 63 ders the regular aiul legal adiiiiuistralion of the govcrimieiit must be held to be unconstitutioual and void.''' This act of Congress super- sedes all couflictiug state legislation <>ii llic same subject.-" § 61. Same continued — exception to power — police regulations. These statutes do not deprive the state of its police power.-' While they may operate to prevent the state or any of its municipalities from an arbitraiy or absolute exclusion of a telegraph company, which has complied with this provision, from any post-road,-- yet, they do not affect the rights of the state or its agency to regulate the use of streets and highways by such companies.^^ For instance, the streets in a town are included in the term "post-roads," and the au- thority therein could not exclude a telegraph company from entering u]:)on its streets; yet, it could regulate the size and location of the l)oles, the height of the wires and their location: and where they be- come an obstruction and a nuisance, it could remove them or require them to be placed under the ground ;-^ or it might impose a reasonable charge for the privilege of erecting and maintaining telegraph lines along its streets.^^ And a city ordinance requiring telegraph com- panies engaged in business within its corporate limits to pay a license tax, is valid and can be enforced notwithstanding the fact that the company has complied with all the conditions of such statutes.^^ So, also, the acceptance by a telegi'aph company of the in-ovisions of these statutes, does not confer any exemption from taxation for state pur- poses upon lines and other y^roperty constructed within the state.-' § 62. Does not interfere with right to compensation. When a telegraph company has acquired a right of Avay over the public highway by federal grant, the abutting landowners are not de- "Moon V. City of Eufaiila, 11 So. Co. v. Chnrlotte. 03 Fed. 11: Tdledo v. 921. ' West. V. Tel. Co. (C. C. A.K 107 Fed. ^Pensacola Tel. Co. v. West. U. Tel. 10. Co., 96 U. S. 1 : West. U. Tel. Co. v. " American, etc., Tel. Co. v. Hess, 125 Atlantic, otr.. Tol. Co.. 5 Xev. 102. X. Y. 041, 21 Am. St. Rep. 764, 13 L. "American, etc., Tel. Co. v. Iless, R. A. 40 10. 125 N. Y. 641. 13 L. E. A. 454n. "St. Louis v. West. U. Tol. Co., 148 ='West. U. Tel. Co. v. Ait. -Gen.. 125 L'. S. 94, 13 S. Ct. Rep. 485. U. S. 530, 8 S. Ct. Rep. 961. =« Moone v. Eufaula, 11 So. 921. =» People V. Squire, 145 U. S. 175, 12 -'West. 1'. Tel. Co. v. Com., 125 U. S. Ct. Rep. 880, affirming 107 N. Y. h^. r)30, S S. Ct. Rep. 961. 593, 1 Am. St. Rep. 894; Michigan Tel. 64: TELEGRAPH AND TELEPHONE COMPANIES. [<§> 62 prived of the right to be compensated for said right of way ; because the land npon ^vhich the grant is given is burdened with an additional servitude or because the easement of access to their property has been obstructed ; or because the enjoyment of the highway has been inter- fered with.-^ The reasons why the abutting landowner should be entitled to this compensation have been very ably given by Judge Brewer, and as the same could not be more logically given, it will be our pleasure to quote what he has to say in regard to this matter. § 63. Same continued — reason of rule. "It is a misconception, however, to suppose that the franchise or privilege granted by the act of 1866 carries with it the unrestricted right to appropriate the public property of a state. It is like any other franchise, to be exercised in subordination to public as to pri- vate rights. While a grant from one government may supersede and abridge franchises and rights held at the will of its grantor, it cannot abridge any property rights of a public character created by the au- thority of another sovereignty, l^o one would suppose that a franchise from the federal government to a corporation, state or national, to construct interstate roads or lines of travel, transportation, or com- munication, would authorize it to enter upon the private property of an individual, and appropriate it without compensation. No matter how broad and comprehensive might be the terms in which the fran- chise was granted, it would be confessedly subordinate to the right of the individual not to be deprived of his property without just com- pensation. And the principle is the same, when under the grant of a franchise from the national government, a corporation assumes to en- ter upon property of a public nature belonging to a state. It would not be claimed, for instance, that under a franchise from Congress to construct and operate an interstate railroad the grantee thereof could enter upon the statehouse grounds of the state, and construct its depot there, without paying the value of the property thus appropriated. Although the state-house grounds be property devoted to public uses, it is property devoted to the ])nblic uses of the state, and property ^^Kester v. West. U. Tel. Co., 108 ]-"ed. 926; Philips v. Postal Tel. Cable Co., 13fi N. C. 513, 41 S. E. 1022. § 64] RIGHT OF WAY, 65 whose ownership and control is in the state, and it is not within the competency of the national government to dispossess the state of such control and use or appropriate the same to its own benefit, or the benefit of any of its corporations or grantees, without suitable com- pensation to the state. This rule extends to streets and highways; they are the public property of the state. While for purposes of travel and common use they arc open to the citizens of every state alike, and no state can by its legislation deprive the citizens of an- other state of such common use, yet when an appropriation of any part of this public property to an exclusive use is sought, whether by citizen or a corporation of the same or another state, or a corporation of a national government, it is within the comi)etency of the state,rep- resenting the sovereignty of that local public, to exact for its benefit compensation for this exclusive appropriation. It matters not for what that exclusive appropriation is taken, whether for steam rail- roads or streets railroads, telegraph or telephones, the state may, if it choose, exact from the party or corporations given such exclusive use, pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated." -'^ § 64. Same continued — along railroads — compensation, when al- lowed. For the same reason given above, a telegraph company cannot ac- quire a right of way along and upon the right of way of a railroad company without first compensating the landowner or the railroad company. This act of Congress is permissive only, and the manner in which the right of way is acquired by the condemnation proceed- ings is left with the laws of the state in which the road is located. In some instances, a railroad company constructs a line of wires along its roads for it^^ own conveniences in carrying out the business of the company, such as the giving of orders and doing all other business necessary for the discharge and performance of its duties. When such is the case, the owner of the fee, if such may still be in him, will not be entitled to an additional compensation for the right of way ; but if the line is built by any other corj>orntion, bv any kind of an ™St. Louis V. West. U. Tel. Co.. 148 U. S. 02, 13 S. Ct. Rep. 485. T. & T.— 5 66 TELEGRAPH AND TELEPHONE COMPANIES. ['§'64 agTeement entered into by the railroad and such corporation, the owner of the fee will be entitled to additional compensation, notwith- standing the fact that the telegraph company will, in connection with its other corporate business, render to the road the same services it would have obtained had the line belonged to the road, and had been built by it for its own convenience, provided it is not used exclusively for the benefit and convenience of the road.^*^ § 65. Same continued — compensation to road — reason for allow- ing. The interest which a railroad company has to its right of way, re- gardless of the manner in which it is acquired, entitles it to be com- pensated by any telegraph company which condemns so much of said road as may be necessary for a construction of a line of its wires thereon, unless it is otherwise agreed to by the two companies; and this right is not affected in anywise by this act of Congress. Every citizen has a right guaranteed by the fundamental law of our land, that he shall not be deprived of any of his property rights without a due compensation therefor, detemiined by proper legal proceedings; and it is upon this guarantee to every American citizen in the se- curity and protection of his property rights, which has formed and concentrated our government into one invulnerable unit and made it the grandest, the proudest and most powerful nation of the world. For the same reason that the property of a private person could not be taken against his consent by any corporation or body of persons without first paying him a due consideration for same, the property rights of any corporation cannot be legally acquired by any other corporation or body of persons without paying or tendering to said corporation a due compensation for said rights. Under our laws, a corporation is a citizen and is protected in the security of its property the same as a private individual. While a railroad may not have the same interest to the land on which its road is located as that pos- sessed by an individual to his land, it nevertheless has an interest in this land or right of way for the purpose of carrying out its cor- porate business, paramount to any other person or corporation, and *»Am. TpI., etc.. Co. v. Smith, 71 Md. 535, 18 Atl. 018, 7 L. R. A. 200. § QQ^ RIGHT OF WAY. 67 therefore has the same right to be protected and secured in this right that an individual has to his private property. No one would pre- sume to say that a telegTaph or telephone company could construct a line of its wires over and across the property of an individual against his consent without first compensating him for said right ; for he is as secure from the depredation of his property in this respect as by any other known way. This is his guaranteed right. There may be other ways in which the right of way of a railroad company may be used by other corporations or private citizens, but there is no way in which it is so often used and subjected as for telegraph companies whose wires are strung from one end of the road to the other, and on every road of any consequence ; and to say that these telegraph com- panies should not compensate the railroad company for the use of its easement, would be unreasonable, unjust and would not protect the railroad in this guaranteed right. § 66. Same continued — the act does not affect the right to com- pensation. Most all of our lands were originally acquired either directly or in- directly by grant from the United States and, by a technical meaning seldom considered, the paramount title to which was never granted, but for certain purposes and reasons it might under certain circum- stances revert back to the original owner or grantor. It matters not what technical constructions may be placed on these grants from the government there is not the least possible or the remotest doubt but that the gTantees of these lands have acquired all the right, title and interest in said grants to make them absolutely perfect and sound in every possible respect and superior to all other claims or demands, except such as may fall under the police power, or such as may be necessary to carry on the affairs of the public. "While there may be a distinction between a grant of these lands and a grant of a right of way to a railroad company, in that the fee may not always be granted to the latter; yet, it is not to be presumed that Congress made such grants without, also, giving them the right to demand compensation for their rights of M'ay when condemned by telegraph companies. And, so, it is held that telegraph companies must obtain the consent of the owners of the right of way, or condemn the same for telegraph 68 TELEGRAPH AICD TJiLEPlIONE COMPANIES. [§ 60 purposes aiij make coinpensation tberefor.^^ As was said by an emi- nent judge : ''We cannot suppose it was the intention of Congress bv these enactments, even if it had the power to do so, to put the right of way of every railroad company in the country at the mercy of the telegraph companies, and allow the latter to use them for the con- struction of their lines, without making compensation to any one therefor." "- § 67. Same continued — right acquired by agreement. It is not always necessary that a condemnation proceeding be in- stituted in order for a telegraph company to acquire a right of way over the private property of an individual, for it may acquire the right by his consent or by an agreement entered into with him. The same rule of law may be applied to the right of way of a railroad. It may obtain a privilege from the railroad to construct its lines of wires upon and along the right of way of the road,^' § 68- Same continued — exclusive use — cannot be acquired. This act does, however, prevent a railroad company's right of way from being exclusively used by one telegraph company.-''-^ The legis- lature of Florida granted an exclusive right to a certain company to construct its lines along the right of way of a railroad. It was held, however, that such a gi^ant was in conflict with the act of CongT-ess which was specially intended to secure to all companies equal privi- leges and to prevent monopolies, and that it could not stand."'' ^HVest. U. Tel. Co. v. Am. W. Tol. ^'•■'- Ponsacola Tel. Co. v. West. U. Tol. Co., 9 Bhs. (U. S.) 72; Atlantic, etc.. Co., 96 U. S. 1. Tel. Co. V. Chicago, etc., R. Co., 6 Biss. ''^ Under U. S. Rev. Stat., §5203, a (U. S.) 159; West. U. Tel. Co. v. Ann railroad company cannot grant to a Arbor R. Co.. 90 Fed. 379, 178 U. S. telegraph company the sole right to 243, 2 S. Ct. Rep. 867; Southwestern R. construct a line over the right of way. Co. 'v. Southern, etc., Tel. Co., 46 Ga. so as to exclude other companies whose 43, 12 Am. Rep. 585; Northwestern lines would not interfere with those ot Tel Exch. Co. V. Chicago, etc., R. Co.. the first company. West. U. Tel. Co. 76 Minn. "334. 79 N. W. 315. v. Am. W. Tel. Co., 9 Bliss. (U. S.) ^'^Am. Tel. Co. v. Pearce, 71 Md. 535. 72; West. W. Tel. Co. v. Am. ^^ . Tel. 7 L. R. A. 200n, 28 Am. St. Rep. 227. Co., 9 Bliss. (U. S.) 72. 18 Atl. 910. See also, Pensacola Tel. "^^ A telegraph company in Texas can- Co. v. Wtfct. U. Tel. Co., 90 U. S. 1. not acquire by agreement with a rail- affirminc 2 Woods (U. S.) 043. road company the exclusive right to § 69] KIGHT OF WAY. 69 § 69. Same continued — different rule when grant from United States. All that has been said heretofore in regard to the compensation paid to or tendered a railroad company for part of its right of way acquired hy congressional grant for the use of telegraph companies, is applicable only to telegraph companies which were organized prior to 1872. The original act gave to telegraph companies the ''right to construct, maintain, and operate lines of telegraph . . . over and along any of the military or post-roads of the United .States, which have been, or thereafter may be declared such by law." ^® Congress afterwards, in 1872 declared all the railroads in the coim- try which are now^ or may hereafter be in operation to be post-roads. When, therefore, a railroad company's right of way is one acquired by congressional grantsubsequent to this last-mentioned act, the grants must be considered as made and accepted subject to the provisions of the act giving the telegraph companies the right to occupy and use such right of way without compensation.^" use its right of way for a line of tele- Ejraph. West. U. Tel. Co. v. Baltimore & 0. Tel. Co., 19 Fed. 660, 22 Fed. 133; West. U. Tel. Co. v. Am. W. Tel. Co., 65 Ga. 160, 38 Am. Rep. 781; Balti- more, etc., Tel. Co. v. Morgan's Louisi- ana, etc., R. Co., 37 La. Ann. 883; Pa- cific Postal Tel. Cable Co. v. West. IJ. Tel. Co., 50 Fed. 493; Keasley on JClectric Wires, p. 135. See also South- western R. Co. V. Southern, etc., Tel. Co., 46 Ga. 43. 12 Am. Rep. 585; New Orleans, etc., R. Co. v. Southern, etc., Tel. Co., 53 Ala. 211; West. U. Tel. Co. V. Burlington, etc., R. Co., 11 Fed. 1, 3 McCrary (U. S.) 130. A railroad company iiiaintaining telegraph wires granted to a telegraph company the right to place a wire on the poles of the railroad company and to establish stations and to do business with points off the road, the railroad company re- serving to itself the right to the local business. It was held, tliat the risht granted ^ras not exclusive, and that the railroad could put up and maintain another wire for its own use or for the use of a third party. ^Marietta, etc., R. Co. v. West. U. Tel. Co., 38 Ohio St. 24. There are some authorities holding a contrary view on this sub- ject. Canadian Pacific R. Co. v. West. U. Tel. Co., 17 Sup. Ct. Com. 151; West. U. Tel. Co. v. Chicago, etc., R. Co., 86 III. 246, 29 Am. Rep. 28; West. U. Tel. Co. V. Atlantic, etc., Tel. Co., 7 Biss. (U. S.) 367. In view of the act of Congress, a state cannot grant to a telegraph company exclusive rights in the right of way of anj' railroad within the state. "The statute amounts to a prohibition of all state monopolies in this particular." Pensacola Tel. Co. v. West. U. lei. Co., 96 U. S. 1, affirming 2 Woods (U. S.) 643. ^'Act approved July 24. 1866. ^' Mercantile Transf. Co. v. Atlantic, etc.. R. Co., 63 Fed. 579. 70 TELEGRAPH AND TELEPHONE COMPANIES. \_^ 70 § 70. Condemnation proceedings — must be under state statutes. This act docs not undertake to provide compulsory proceedings to condemn part of the right of way of a railroad for an easement for a telegraph company, but this right is left exclusively to the laws of the state in which is located the right of way attempted to be sought.^^ Xor can a federal court, under that act, wdth its equity powers, use its injunction process so as to effect an equitable condemnation of an easement of a right of way over a railroad along which it has con- structed its line under a contract with a prior owner of the railroad whose o^vnership had been terminated by the foreclosure of a mort- gage existing prior to the contract.^^ § 71. Act otherwise considered. The act does not affect the liability of the telegraph company for damages resulting from the negligence in the transmission or deliver- ing of messages.^" It does not embrace the telephone companies,^ ^ nor does it extend to the installation by a regularly organized tele- graph company, of a district telegraph system for the collection and distribution of telegraph messages and for the operation of call boxes, watchmen and police signals, and the like.^^ By an early act of Congress and supplemental acts thereto subsidized railroad com- panies, known generally as the Pacific railroads, were granted rights of way over the public domain and were required to construct and operate telegraph lines along their various routes under special pro- ^ Pensacola Tel. Co. v. West. U. Tel. West. U. Tel. Co. v. Ann Arbor E. Co., Co., 96 U. S. 1; Postal Tel. Cable Co. 178 U. S. 243. 20 S. Ct. Pvep. 867, re- V. Cleveland, etc., R. Co., 94 Fed. 234; versing 90 Fed. 379. Pcstal Tel. Cable Co. v. Southern P. ™ West. U. Tel. Co. v. Ann Arbor R. Co., 89 Fed. 190; West. U. Tel. Co. v. Co. (C. C. A.), 90 Fed. 379. Penn. R. Co., 123 Fed. (C. C. A.) 33. ^*West. U. Tel. Co. v. Mellon, 100 reversing 120 Fed. 951, and affirming Tenn. 429. 120 Fed. 362; Postal Tel. Cable Co. v. " Ptichmond v. Southern Bell Tel., Morgan's Louisiana, etc., R. Co., etc., Co., 174 U. S. 761, 19 S. Ct. Rep. 49 La. Ann. 58, 21 So. 183; Nicoll v. 778, affirming .103 Fed. 31. New York, etc., Tel. Co., 62 N. J. L. ■^Toledo v. West. U. Tel. Co.. 46 C. 133, 42 Atl. 583, 72 Am. St. Rep. 666, C. A. Ill, 107 Fed. 10, 121 Fed. 734. affirming 62 X. J. L. 156. See, also, § 73] RIGHT OF WAY. 71 visions with regard to telegraphic service to be furnished to the gov- ernment and the public."**^ § 72. State grants. For the reason that telcgTaph companies may acquire from the gov- ernment a right of way over and across public and private property does not prevent the state from making such grants ; for we find that most, if not all, of the states have passed laws, giving the right to telegraph and telephone companies, under certain conditions and re- strictions, to construct and operate lines upon the public highways.^* It will be seen that there is a distinction between a federal and a state grant with respect to the kind of companies to which the grant may be made. In the former, as stated elsewhere the grant can only be made to a telegraph company, but in the latter, it may be made to either or both a telegraph or telephone company. It would require much time and space to set forth all the statutes of the several states on this subject ; so we will leave the reader to consult the laws of his own state in regard to this question. § 73. On railroad. In some states these statutes confer upon telegraph and telephone companies the right of using the right of way of a railroad com- pany.^ ^ It has been held that imder a statute authorizing telegraph companies to construct their lines "along and parallel to any of the railroads of the state," a telegTaph company is not authorized to con- " U. S. V. Union Pac. II. Co., 160 U. v. Jersey City, 49 N. J. L. 303, 00 Am. S. 1, 16 S. Ct. Rep. 190, 163 U. S. 710, Rep. 019; Marshfield v. Wisconsin Tel. 16 S. Ct. Rep. 1206; U. S. v. Northern Co., 102 Wis. 004, 78 N. W. 735, con- Pac. R. Co., 120 Fed. 546. struing Wis. Rev. Stat., §§1898-1778; "Code of Ala. 1896, §§1244-2490; State v. Cumberland Tel., etc., Co., 52 Code of Tenn. 1896, §1830; Code of La. Ann. 1411, 27 So. 795; State v. Va. 1887, §§1287-1290, construed in Flod, 23 ilo. App. 185; State v. Spo- Soutlicrn Boll Tel., etc.. Co. v. Rich- kane, 24 Wash. 53, 63 Pac. 1116; West, mond, 103 Fed. 31. 174 U. S. 761; U. Tel. Co. v. Williams, 86 Va. 696, 11 Miss. L. 1886, p. 93, con.strued in Meri- S. E. 103, 8 L. R. A., 429n, 19 Am. St. dian v. West. U. Tel. Co., 72 Miss. 916, Rep. 908. 18 So. 81, 29 L. R. A. 770; Postal Ca- "Postal Tel. Cable Co. v. ^Morgan's ble Tel. Co. v. Norfolk, etc., R. Co., 88 Louisiana, etc., R. Co., 49 La. Va. 920, 14 S. E. 803; Hudson Tel. Co. Ann. oS, 21 So. 183. 72 TELEGRAPH AXD TELEPHONE COMPANIES. [<§ 73 demn a right of way along and upon the right of way of a railroad company ; it is only allowed to run in the direction lengthwise of the railroad, alongside and equidistant from it throughout all its parts.*® While these statutes are subordinate to the act of Congress on the same subject, yet they may nevertheless be resorted to for condemna- tion of a right of way along railroads when necessary.'*'^ § 74. Same continued— conditions not to interfere with running trains. * These statutes provided that telegraph lines shall not be con- structed along the railroad so as to interfere with travel. If it were not for this condition these companies might, by a multiplication of wires, interfere with the running of trains, and the possible falling of poles would endanger the safety of trains. It has therefore been ex- pressly stated both in the act of Congress and the various state stat- utes on the subject, that the lines must be so constructed and main- tained as not to interfere with travel. They do not state how far they shall be from the railroad, but it is an implied condition on the part of these companies that the lines shall not be so closely erected to the road as to obstruct the operation of the railroad. § 75. Same continued — award. Another condition required of a telegraph or a telephone company before constructing a line of wires along and upon a railroad's right of way, is that the latter must be compensated for the use of its road- bed by either of these companies. While it is very clear that the rail- road should be compensated for the use of its easement, since, not to do so, would be against the constitutional guaranty to every property- o^\Tier, in that it would be depriving it of its property without due compensation ; yet, in a matter of this kind, it is very difficult to de- termine how much should be awarded. The construction of the line of wires along a railroad will occupy with its poles and cross-pieces thereon, a right of way of the company of some eight or ten feet, but knowing this fact, there is no means of ascertaining the amount of « Postal Tel. Co. v. Norfolk, etc., R. '^Postal Tel. Cable Co. v. Morgan's Co., 88 Va. 920, 14 S. E. 803. Louisiana, etc.. P., etc., Co., 49 La. Ann. 58. 21 So. 183. '^ 77] RIGHT OF WAY. 73 damages in money that would be inflicted upon the railroad. The land along the railroad company's right of way may be of a peculiar or particular value for specific purposes, and this fact must be taken into consideration in the awarding of damages to the road, since the telegraph company cannot avail itself of improved conditions with- out due and proper compensation. There is one fact, however, undis- puted: the telegraph company must make compensation proportion- ately for the cost and expense of the railroad in putting in condition its right of way.^^ The circumstances in every case are not the same, so each must be considered in the light of its own surroundings and decided on its own peculiar state of facts. § 76. Canal — under same statutes. In some states these statutes gTant to telegi-aph and telephone com- panies the right to construct their lines upon, or along, by and across canals. Thus, under a Louisiana statute,^^ the land of the state, though appropriated to the use of a canal may be used by a telephone company along and over the waters of the state, provided that the ordinary use of the company does not interfere with it in any man- ner, or obstruct in the least the use of it by the state or the plaintiff company.^'' § 77. The term "highway" embraces city streets. These statutes which confer upon telegraph and telephone com- panies the right to occupy "public highways" of the state, em- brace city streets, unless a diiferent intent is clearly indicated,^^ yet it has been held that where the term '^public roads" is used in the stat- " Postal Cable Tel. Co. v. Morgan's necessary) ; East Tenn. Tel Co. v. ilus- Louisiana, etc., R., etc., Co., 21 So. sellville, 106 Ky. 667; Duluth v. Du- 183, 49 La. Ann. 58, affirming Postal luth Tel. Co., 84 Minn. 486, 87 N. W. Tel. Co. V. Louisiana, etc., R. Co., 9 So. ]i24; Northwestern Tel. Exch. Co. v. 119. In the latter case an award of ^ii„neapolis, 81 Minn. 140 83 X. W. $50 per mile was allowed. .^^^ 53 ^ ^ ^ j^^. j^ij^^igan Tel. Co. V. Boston Harbor, 121 Minn. 512, 83 X. W. 386, 47 L. R. A. 104; State v. *'No. 24, 1880 ■'"State V. Cumbovland, etc., Tel. Co., 52 La. Ann. 1411, 27 So. 795. -Abbott V. Duluth, 104 Fed. 833; Sheyboygan, 11 Wis. 23; 86 N. W. Chamberland v. Iowa Tel. Co., 119 Iowa '"""• 610, 93 N. W. 596; (City's consent un- 74 TELEGRAPH AND TELEPHONE COMPANIES. [^^ ''^7 utes, streets of a city are uot embraced therein.^- The term will also embrace a turnpike,^^ but not a railroad or its right of way,^^ nor will it embrace lands granted for canal purposes. ^^ § 78. Conditions of grantee. In the granting by the state to telegraph and telephone companies the right to construct and operate lines of wires across private prop- erty, along and upon highways, railroads, and along, across and un- der navigable waters, there are certain conditions for the welfare and convenience of the public always required of the grantees, for the en- joyment of such right. For instance, in some states, authority is given by statutes to all telegraph companies to erect poles on which to place their wires, on all highw-ays or public roads, by first obtaining the consent, in wTiting of the county board of the county in which such highway is situated ;^*^ and that the posts, arms, insulators and other fi_xtures of such telegraph or telephone lines be so erected, placed and maintained as not to obstruct or interfere with the ordi- nary use of such highways, railroads, streets or water; or with the convience of any land owners more than may be unavoidable 5^"^ or change or adjust, when necessary, its system of operating its tele- phone lines as not to curtail the enjoyment by the public of the best mode of travel and transportation ; ^^ or not to interfere wath the opening and closing of a drawbridge across a navigable stream ^^ nor obstruct steamers or travels upon the navigable waters. And these companies must always first make compensation for damages and injuries inflicted upon the owners of the fee or right of w^ay,^*^ or they would be taking the property of others without compensation. '-- Nebraska Tel. Co. v. West. Inde- =« Board of Trade Tel. Co. v. Barnett, pendent Long Distance Tel. Co., 95 N. 107 111. 507. W. lg_ "Miss. L. 1886, p. 93. °^ People's Tel., etc., Co. v. Burks, °* Cincinnati Incline Plane R. Co. v. etc., Turnpike Road, 199 Pa. St. 411, Tel. Association, 48 Ohio St. 390, 29 49 Atl. 284. Am. St. Rep. 559, 12 L. R. A. 534, 27 N". '"* West. U. Tel. Co. v. Penn. R. Co., e. 890. (C. C. A.) 123 Fed. 33, reversing 120 so p^c. Mut. Tel. Co. v. Chicago, etc.. Fed. 981. Bridge Co., 36 Kan. 113, 12 Pac. 535. "State V. Cumberland Tel., etc., Co., «» Board of Trade Td. Co. v. Barnett, .52 La. Ann. 141, 27 So. 795. 107 111. 507. CHAPTER VI. MUNICIPAL GRANTS. § 79. Easement — where vested. 80. Same continued — authority — how acquired. 81. Same continued — terms and conditions. 82. Same continued — unconditional statutes. 83. Same continued — city's consent. 84. Must petition municipalities. 85. Compensation to municipalities. 86. Same continued— city control. 87. Same continued — charge in nature a rental — decision of point. 88. Same continued — not on gross income — effect of. 89. Same continued — reasonable charges. 90. Termination of franchise to occupy streets. § 79. Easement — where vested. The easement in the highways is vested in the public from which it cannot be divested by anything short of an action instituted by the sovereign power. The public may surrender the rights and privi- leges which it has therein, but the same must be done by proper pro- ceedings conducted by the sovereign authority; as, without which, it cannot be divested. A non-user or an adverse use will not be consid- ered a surrender of its vested rights.^ For the same reason, the pub- >Webb V. Dunapolis, 95 Ala. IIG, 13 409, 33 Am. St. Rep. 682; Newsom v. So. 289, 21 L. R. A. 62; Yolo v. Barmy. Charles Street Ave. Co., 83 Md. 130, 34 79 Cal. 375, 21 Pac. 833, 12 Am. St. Atl. 360; Almy v. Church, 18 R. I. 182, Rei). 152 ; Ralston v. Weston, 46 \Y. 26 Atl. 58 ; Yates v. Warrenton, 84 Va. Va. 544, 33 S. E. 326; Lee v. Mound 337, 4 S. E. 818, 10 Am. St. Rep. 860; Station, 118 111. 304, 8 N. W. 759; Sch- Crocker v. Collins, 37 S. C. 327, 15 S. midt V. Draper, 137 Ind. 249, 36 N. W. E. 951. 34 Am. St. Rep. 752; Moose v. 79: Huddleston v. Hendricks, 52 Ohio Carson, 104 X. C. 431, 7 L. R. A. 548n, St. 460, 40 X. E. 408; Childsv. Nelson. 10 S. E. 689. 17 Am. St. Rep. 681; C.n Wis. 125, 33 N. W. 587; Coin. v. Viclcsburg v. :Marshall, 59 Miss. 563; :\Ioorehead, 118 Pa. St. 344, 12 Atl. 424, Louisiana Ice Mfg. Co. v. New Orleans. 4 Am. St. Rep. 599; Briggs v. Philips, 43 La. Ann. 217, 9 So. 21; Raht v. 103 N. Y. 77; St. Vincent Orphan Asy- Southern R. Co., 50 S. W. 72; Waterloo lum V. Troy, 76 N. Y. 108, 32 Am. St. v. Union :Mill Co., 72 Iowa 437. 34 N. Rep. 286; Lainy v. United New Jersey w. 137; Williams v. St. Loui?;. 120 Mo. R.. etc., Co., 54 X. -T. L. 576, 25 Atl. 403, 25 S. W. 561. (75) 76 TELEGRAPH AXD TELEPHONE COMPANIES. [§ 79 lie interest in the easement of a highway cannot be changed to a dif- ferent and additional use without like proceedings. The acts and doings of the public are exercised over by the legislature ; - therefore, the legislature, representing the public, may release the public rights, by vacating the highways ; may modify the public use, by granting a right to use them for a horse railroad ; or may restrict the public use, by gTanting a right to erect poles and other obstructions therein.^ What the legislature may thus do it may also delegate to others. Thus, from the earliest history of the laws of the state, authority to vacate highways in county districts has been conferred on special tribunals. The like authority has frequently been conferred on mu- nicipalities. 'No reason appears why such authority, possessed by the legislature may not thus be delegated. But the delegation of such power must plainly appear, either by express grant or by necessary implication. § 80. Same continued — authority — how acquired. It is a fundamental principle of law, that the powers of a munici- pal corporation in respect to the control of its streets are held in trust for the public benefit, and cannot, unless clearly authorized by a valid legislative enactment, be surrendered or delegated by contract to private persons or other corporations.^ Whether or not the right to authorize the use of its streets exists in the municipality in particu- lar cases, is a question of the construction of charters and of legisla- tive provisions in force in the state ; ^ but the powers usually confer- red upon municipal corporations are generally sufficient to authorize the implication that such rights exist. Thus, authority to "license, tax, and regulate" telephone companies and "all their branches of business," given to a city by its charter, carries with it power to grant ^ Polack V. Trustees of San Francisco 125 New York 641, 21 Am. St. Rep. Orphan Asylum, 48 Cal. 490; Meyer v. 7G4, 13 L. R. A. 454n. Village of Teutopolis, 131 111. 552, 22 * CMcago, etc., R. Co. v. Quincy, 136 N". E. 689; McGee's Appeal, 114 Pa. St. 111. 563, 29 Am. St. Rep. 334, 27 N. E. 470, 8 Atl. 237; Gray v. Iowa Land 172. Co., 26 Iowa 387 ; Paul v. Coover, 24 = St. Louis v. Bell Tel. Co., 96 Mo. Pa. St. 207, 64 Am. Dec. 649. G23, 2 L. R. A. 278n, 9 Am. St. Rep. * American Rapid Tel. Co. v. Hess, 370; Dillon on Municipal Corp., (3 Ed.), sec. 89. <§ ■'^l] MUNICIPAL GRANTS. 77 to such companies the right to erect poles and wires within the city.'"' It follows, then, on account of these principles of law, that the extent of power whicli a municipality has in granting or refusing the right to a telegraph or telephone company to construct a line of wires upon the streets, depends upon the nature of the charter and the laws Avhich are in force. But even where a municipality has such authority, it must be confined to a reasonable exercise thereof, and such authority does not extend to the power to grant to a private citizen the right to construct a line of wires for his owai benefit ; nor can it grant, under this authority, the right to a telegraph company to so obstruct the streets as to prevent travel " or to interfere with the ancient light. § 81. Same continued — terms and conditions. As a general rule, telegraph and telephone companies are given by statute the right to occupy highways and streets, but it is made the duty and right of each municipality to fix the terms and conditions upon which its own streets may be used. In the first place, in order for such companies to take advantage of and be protected by these statutes, they must be complied with in the manner pointed out by such statutes, otherwise their acts will be prohibited by in- junction:'' these statutes cannot be enlarged by municipal ordi- nances,^ Thus, where a statute grants the right to these companies to construct a line of wires over and through streets, it has been held that this did not give the city the authority to place the -wires under- ground.^'^ An exercise of the right granted by such statutes, dele- gated to the municipal authority, does not deprive the latter of the police power over its streets; ^^ and, in order to carry out and main- ••■ Hcr^c'litield v. Rock Mt. Bell Tel. Md. M. 28 Am. St. Rep. 210. 21 Atl. Co.. 12 Mont. 102: 2 Dillon Mun. Corp.. 090. 724. ^"Coni. V. Warwick. 185 Pa. St. G23. • Sheniekls Central U. Tel. Co.. 30 40 Atl. lOlU. ¥q(\. 164. 'MVest U. Tel. v. I'hihulelphia. 21 'Broom v. New .Jersey Tel. Co.. 42 Am. Ensj. Corp. Cas. 40; American, etc.. X. J. i:q. 141. 7 Atl. 851; New York. Tel. Co. v. Hess, 125 N. Y. 641. 21 Am. etc.. Tel. Co. v. Township of East Or- St. Rep. 704, 13 L. R. A. 454n; Indian- ance, 42 N. J. Eq., 490, 5 Atl. 641. apolis v. Consumers' Gas Trust Co.. "Chesi^eake Tel. Co. v. ilaekenzie. 74 140 Tnd. 107, 49 Am. St. Rep 183. 27 L. R. A. 514. .10 N. E. 433. 78 TELEGRAPH AND TELEPHONE COMPANIES. [§ §1 tain the municipal government, a license tax ^- or rental ^^ maty be imposed on such companies doing business wholly or partly within the city limits; this right is not affected by the act of Congress from which federal grants are given. ^^ The municipality may require these companies to compensate it in other and different ways, for the privilege of constructing their lines over and upon the streets, where the same is used to make the repairs rendered necessary by such addi- tional use to which the streets are used.^^ It has been held that a leg- islative act or municipal ordinance, authorizing the construction of the line of wires upon the streets,is void if it fails to provide for com- pensation to abutting owners, ^^ But where the municipalities are given the right and duty to fix the terms and conditions upon which their own streets may be used, they cannot defeat the grant of the company's right given by the statute, by either refusing to name the conditions, or by imposing unreasonable restrictions or conditions. Whenever there is a disagreement between the municipality and these companies about some term or condition imposed by the former, there should be and generally is a court in which this disagreement may be settled. It is not only of interest to the municipality and to these companies that all the conditions should be agreed upon as speedily as possible, but it is also of great interest to the public. ^"^ § 82. Same continued — unconditional statutes. It has been seen that the legislature may grant to telegraph and telephone companies the right to occupy city streets upon such com- panies complying with conditions and restrictions of the city, but the legislative grant may be unconditional ; and when such is the case the city cannot impose any conditions or restrictions upon such com- "West. U. Tel. Co. v. Freemont, 44 559, 9 So. 350, 24 Am. St. Rep. 290, Am. En£». Corp. Cas. 470. 12 L. R. A. 864n; Chespeake, etc., Tel. "St. Louis V. West. U. Tel. Co., 148 Co. v. Mackenzie, 74 Md. 36, 18 Atl. U. S. 92, 13 S. Ct. Rep. 485. 1107, 28 Am. St. Rep. 227; Southern " St. Louis V. West. U. Tel. Co., 148 R. Co. v. Southern, etc., Tel. Co., 46 U. S. 92, 13 S. Ct. Rep. 485. Ga. 43, 12 Am. Rep. 585. **Zanesville v. Zanesville Tel., etc., " Zanesville v. Zanesville Tel., etc., Co., 64 Ohio St. 67, 59 N. E. 781, 83 Co., 64 Ohio St. 67, 59 N. E. 781, 83 Am. St. Rep. 725, 52 L. R. A. 150. Am. St. Rep. 725, 52 L. R. A. 150. " Dawson v. Postal Tel. Co., 68 Miss. <§ 84] MUNICIPAL GRANTS. 79 panies, except under the police power; nor, can its officers interfere with the exercise of the companies' privileges. ^^ But should the city- be without authority to impose reasonable conditions upon these com- panies — having merely the power to consent or refuse consent — they may, nevertheless, annex certain conditions on them for the right of easement over the streets ; and, if the companies acquire an easement in the streets in accordance to said conditions, and occupy them, they cannot afterwards repudiate the conditions. ^^ This prin- ciple of law is founded on the ground of estoppel and will be closely observed as in all other cases of this nature. The city authority can- not revoke a designation of the streets in which a telegraph company may place their poles, when the company has conformed to the con- ditions upon which the designation was made, and has expended money in placing poles upon the designated streets.^^ § 83. Same continued — city's consent. Many of these statutes which gives telegTaph and telephone com- panies the right to construct lines of wires upon the streets of cities provided that this right shall not be exercised without first obtaining either the consent of the council or the board of commissioners. The municipality does not lose control over its streets, and any addi- tional servitude to which it may be placed should be known by, and consented to, by one having supervision over the maintenance of streets. The provisions in these statutes, to the effect that the con- sent of the municipality shall be first obtained, are mandatory and a company can acquire no right to occupy the streets until such have been obtained.-^ § 84. Must petition municipalities. Another requirement of a telegraph or telephone company neces- sary to be made before legally and properly acquiring an easement " State V. Flad, 23 Mo. App. 185. =» Southern Bell, etc.. Co. v. Rich- " Southern Bell Tel., etc., Co. v. Rich- niond, 103 Fed. 31, 44 C C. A. 147; niond, 103 Fed. 31, 44 C. C. A. 147. East Tenn. Tel. Co. v. Anderson Tel. '"Hudson Tel. Co. v. Meyer, etc., Jer- Co., 74 S. W. 218, 24 Ky. L. Rep. 2358, sey City, 49 N. J. L. 303, 60 Am. Dec. 74 S. W. 218; State v. Spokane, 24 619, 8 Atl. 123. 80 TELEGRAPH AXD TELEPHONE COMPANIES. ["^ 84 on city streets for its lines, is that it should petition the municipal authority who has the power to make such grants, asking for this privilege ; setting out in the petition, in clear and definite language, the street or streets on which it intends to construct said line ; the side of the street on which the construction is to he made ; the size of the posts; and such other requirements as may be provided for in the statutes. This should be done in order to apprise the commissioners, or the parties who have the authority to grant such rights, of the bur- dens which they may expect, and the landowner of the burden to which he must submit."" § 85. Compensation to municipality. After a statute has granted to telegraph and telephone compan- ies the right to construct their lines upon the streets of a municipal- ity the question which next presents itself is. Has the municipality the right to exact compensation of these companies for exercising this privilege ? In answering this question, it is necessary to know as to w^hether or not the city has entire control over the streets ; if it should be learned that this be the case and the fee to the streets is in the lat- ter, it may be answered in the affirmative : otherwise not ; yet, there seems to be some difference of opinion on the subject. There is no question, in our mind — and yet, as will be later seen, the courts are wholly at sea — but that these companies are an additional burden to the streets, for which the abutting owners should be compensated. It has been held by an eminent text-writer that a municipal corporation, though holding the fee in the streets, has no private property right or interest in them which entitles it to compensation, under the consti- tution when they are subject to an authorized additional burden of a public nature."^ But if the city charter or the law^s of the state vest in the municipality the entire control over its streets such city may exact of these companies a reasonable compensation for the use of its streets in the nature of rental."^ The municipality must clearly Wash. 53: Xorshfield v. Wisconsin Tel. "Lewis on Eminent Domain, sec. Co., 102 Wis. 604, 44 L. R. A. 565n: 119. St. Paul V. Freedy, 86 Minn. 350, 90 N. -* St. Louis v. West. U. Tel. Co., 149 W. 781. U. S. 465, 13 S. Ct. Rep. 990. ^ Brooms v. New York, etc., Co., 8 Cent. Rep. 5S9, 21 Am. St. Rep. 704. § 86] MUNICIPAL GRAXTS. 81 show that it has this i^nver iiotwithstaiKliiig the fact that the fee is ill the city ; since if the statute provides that on compliance with the terms by such companies, they may without compensation use so much of the streets as may be reasonably needed for the construc- tion of their lines, an ordinance cannot be passed charging them rent for the use of the streets,-^ and yet it may exact so much from these companies as may be necessary to make the repairs rendered necessary by such additional use.^^ § 86. Same continued — city control. As has been said, where the city has the entire control over its streets, which is seldom the case, it may exact compensation of these companies in the nature of a rental. The leading cases arising on the question came up from the city of St. ,.ouis in which it demanded rental for the use of its streets, and there the court held that such power was vested in the municipality.-' This city is the absolute owner of the fee in its streets, and the charter powers of the city are "self-appointed." The city of St. Louis occupies a unique position. It does not, like most cities, derive its powers by grant from the leg- islature ; but it formed its own charter under express authority from the people of the state, given in the constitution. Its charter is an or- ganic act — so defined in the constitution — and is to be construed as organic acts are construed. The city is, in a very just sense, an im- yerium in imperio. Its powers are self-appointive, and the reserved control, vesting in the general assembly, does not take away this pe- culiar feature of its charter. The courts considering the city as ab- solute and uncontrolled proprietor of its streets, held that rent might be exacted from telcgTaph companies in the nature of toll — a demand of proprietorship. The peculiar nature of the charter of St. Louis and the manner in which it was acquired, make these cases of much "Hod.:,'es v. West. U. Tel Co., 18 So. "St. Louis v. West. U. Tel. Co., 149 84, 72 Miss. 910, 29 L. R. A. 770. U. S. 46-1. 13 S. Ct. Rep. 990; Postal =' Zanesville v. Z.inesville, Tel., etc.. Tel. Cablv- Co. v. Baltimore, 79 Md. Co., 04 Ohio. St. 67, 59 N. E. 781, 83 502, 29 Atl. 819, affirmed by 156 U. ti- Am. St. Rep. 725, 52 L. R. A. 150. See 210, 15 S. Ct. Rep. 356; Harrisburg v. also Chicago, etc., R. Co. v. Chicago. Penn. Tel. Co., 15 Pa. St. Ct. 578, 3 176 111. 253, 72 N. E. 880, 68 Am. St. Pa. Dist. 815. Rep. 188, 06 L. R. A. 959. T. & T.— 6 82 TELEGRAPH AND TELEPHONE COMPANIES. [*§ 86 interest and often quoted, and jet we are seldom confronted with a similar state of affairs for the reason that few similar city charters are to be found. § 87. Same continued — charge in nature a rental — decision of point. The compensation exacted of these companies by cities for the use of their streets, is in the nature of a rental and not a tax; ^^ nor as a consideration for the privilege of using the streets.^ ^ It gives us much pleasure to quote at some length Judge Brewer's opinion on this subject when he very ably said, that; "Clearly, this is no privi- lege or license tax. The amount to be paid is not graduated by the amount of business, nor is it a sum fixed for the privilege of doing business. It is more in the nature of a charge for the use of property belonging to the city — that which may properly be called rental. 'A tax is a demand of sovereignty; a toll is a demand of proprietor- ship.' ^^ If, instead of occupying the streets and public places with the telegraph poles, the company should do what it may rightfully do, purchase grounds in the various blocks from private individuals, and to such grounds remove its poles, the section would no longer have any application to it. That by it the city receives something which it may use as revenue does not determine the character of the charge or make it a tax. The revenues of a municipality may come from ren- tals as legitimately and as properly as from taxes. Supposing the city of St. Louis should find its city hall too small for its purposes, or too far removed from the center of business, and should purchase or build another more satisfactory in this respect, it would not thereaf- ter be forced to let the old remain vacant or to immediately sell it, but might derive revenue by renting its various rooms. Would an ordinance fixing the price at which those rooms could be occupied be in any sense one imposing a tax ?"^^ =«St. Louis V. West. U. Tel. Co., 148 Tel., etc., Co., 40 La. Ami. 41, 8 Am. U. S. 92, 13 S. Ct. Rep. 485; Meridian St. Rep. 502, 3 So. 533. V. West. U. Tel. Co., 72 Miss. 910, 18 '" State Freight Tax Case, 15 Wall. So. 84, 29 L. R. A. 770. 232, 278. » New Orleans v. Great Southern ^' St. Louis v. West. U. Tel. Co., 149 U. S. 465, 13 S. Ct. Rep. 990. <§, 89] MUNICIPAL GRANTS. 83 § 88. Same continued — not on gross income — effect of. ''Nor is the character of the charge changed," as he further ob- serves, "by reason of the fact that it is not imposed upon such tele- graph companies as by ordinance are taxed on their gross income for city purposes. In the ilhistration just made in respect to a city hall, suppose that the city, in its ordinance fixing a price for the use of rooms, should permit persons Avho pay a certain amount of taxes to occupy a portion of the building free of rent ; that ^vould not make the charge upon others for their use of rooms a tax. Whatever the rea- sons may have been for exempting certain classes of companies from this charge, such exemption does not change the character of the charge, or make that a tax which would otherwise be a matter of ren- tal. Whether the city has power to collect rental for the use of streets and public places, or whether, if it has, the charge as here made is ex- cessive, are questions entirely distinct. That this is not a tax upon the property of the coi-poration, or upon its business, or for the privi- lege of doing business, is thus disclosed by the very terms of the sec- tion. The city has attempted to make the telegraph company pay for appropriating to its own and sole use a part of the streets and public places of the city. It is seeking to collect rent. While we think that the circuit court erred in its conclusions as to the character of this charge, it does not follow therefrom that the judgment should be re- versed, and a judgment entered in favor of the city. Other ques- tions are presented which compel the examination." '"- § 89. Same continued — reasonable charges. As to the reasonableness of an ordinance which charges five dol- lars a pole per annum the same court said, that ; ''Prima facie, an or- dinance like that is reasonable. The court cannot assume that such a charge is excessive, and so excessive as to make the ordinance unrea- sonable and void ; for, as applied in certain cases, a like charge for so much appropriation of the streets may be reasonable. If, within a few blocks of Wall street, :N'ew York, the telegraph company should place on the public streets 1,500 of the large telegraph poles, it would '^St. Louis V. West. U. Tel. Co.. 149 V. S. 4(5.5, 13 S. Ct. Eep. !)90. 84 TELEGRAPH AND TELEPHOXE COMPANIES. [<^89 seem as though no court could declare that five dollars a pole was an excessive annual rental for the ground so exclusively appropriated; while, on the other hand, a charge for a like number of poles in a small village, where space is abundant and land of little value, would be manifestly unreasonable, and might be so excessive as to be void. Indeed, it may be observed, in line with thoughts heretofore ex- pressed, that this charge is one in the nature of rental ; that the occu- pation by this interstate commerce company of the streets cannot be denied by the city ; that all that it can insist upon is, in this respect, reasonable compensation for the space in the streets thus exclusively appropriated; and it follows in the nature of things that it does not lie exclusively in its power to determine what is reasonable rental. The inquiry must be open to the courts and it is an inquiry which must depend largely upon matters not apparent upon the face of the ordinance, but existing only in the actual state of affairs in the city.^" § 90. Termination of franchise to occupy streets. A municipal ordinance which grants to a company authority to construct and maintain telephone lines on the streets of a city, with- out any limitation as to time, and for a consideration therein named, is, when accepted and acted upon by the grantee, a contract with the city which cannot thereafter be abolished or altered in its essential terms without the consent of the grantee.^^ The franchise or right to use the streets is an irrevocable contract and cannotbe revoked without just cause ^^ and one which the city cannot by indirection or other- wise arbitrarily declare forfeited ; ^^ nor, can it remove the company's lines arbitrarily and without notice,^" upon the expiration of the ^St. Louis V. West. U. Tel. Co., 148 stere v. Chicago, 145 III. 451, 36 Am. U. S. 92, 13 S. Ct. Rep. 485. St. Rep. 496, 34 N. E. 426. ^New Orleans v. Great Southern ^5 ^^est. U. Tel. Co. v. Toledo, 103 Tel., etc., Co., 40 La. Ann. 41, 3 So. Fed. 740. See, also. Seaboard Tel., etc., 533, 8 Am. St. Rep. 502; Indianapolis Co. v. Kearney, OS I*. Y. App. Div. V. Consumer's Gas Trust Co., 140 Ind. 283. 107, 39 N. E. 133, 49 Am. St. Rep. 183, «« Abbott v. Duluth, 104 Fed. 833: 27 L. R. A. 514; Williams v. Citizen's Old Colony Trust Co. v. Wichita, 123 R. Co., 130 Ind. 71, 29 N. E. 408, 30 Fed. 762. Am. St. Rep. 201, 15 L. R. A. 64; Greg- "Mutual U. Tol. Co. v. Chicago, 16 Fed. 309. <§> 90] MUNICIPAL GRANTS. 85 right by lapse of the stipulated period. When the company's stipu- lated time has expired for the use of the streets, it has no right to con- tinue the said use without the consent of the city, and should it ;it- tcmpt so to do, the city may enjoin it from further use.^^ And it has been held that where the right of the company to use the streets is unsettled, the company cannot have a preliminary injunction to re- strain the removal of its poles by the municipality.^® ^*Mut. U. Tel. Co. V. Chicago, 16 Fed. ""New York, etc.. Co. v. East Orange 309. Tp., 42 N. J. Eq. 490, 8 Atl. 289. CHAPTER VII. CONSTRUCTION AND MAINTENANCE OF TELEGRAPH AND TELEPHONE LINES. § 91. In streets. 02. State control. 93. Right may be delegated to city. 94. City control. 95. Unauthorized use — nuisances. 96. Additional servitude — in general. 97. Taking of property for public use — what is. 98. ^ame continued — illustrations. 99. When dedicated for street purposes — not an imposition. 100. The different uses to which streets and highways may be put. 101. Cases holding not entitled to compensation. 102. Same continued — opinions. 103. Same continued — new use of the easement. 104. Same continued — upholding same. 105. The ground upon which these cases are sustained. 106. Same continued — not things of motion. 107. Contrary view — additional servitude — so held. 108. Same continued — rights included in an easement. 109. Same continued — fee in abutting owner. 110. Same continued — abutter's interest. 111. Same continued — exclusive and public use. 112. Same continued — opinion on subject. 113. Same continued — mandatory injunction allowed. 114. When the fee is in the public. 115. The distinction — in abutting owner. 116. Same continued — in the public. 117. When title or fee is in third party. 118. Effect of legislative grant — not a nuisance. 119. Amount of compensation to abutter. 120. Damages to abutting owners — amount. 121. Remedies of adjoining lot-owner. 122. Same continued — ignorance of rights. 123. Same continued — action for damages. 124. Further considered — unauthorized use of street — may be en- joined. 125. Liabilities for cutting trees overhanging sidewalks. 126. Same continued — punitory damages. 127. Willful intent — question for jury. 128. Trees on the sidewalk. (86) <§ 91] CONSTRUCTION AND MAINTENANCE. 87 § 91. In streets. The right to construct telegraph and telephone lines upon the streets must be derived from an express grant of the legislature.^ It cannot exist by implication only.^ The power to make such grants over highways, such as are post-roads,'* rests in Congress, but such grants over all other highways in a state, including city streets, rests ultimately in the legislature.^ A municij^ality is a part of the government and exercises such powers only as are expressly granted in its charter, or such as are necessarily implied to carry out those expressly given. ^ Legislative powers may be and are delegated to these municipalities ; ^ and among these, one is the power to grant to telephone companies, as has already been discussed,* the right to the use of its streets for telephonic purposes. The rightsand powers of a municipality are derived from the legislature as those of any other corporation ; however, there is no contract existing between the state and the municipality which would prevent the state from repealing, amending, changing, or even annulling the latter's charter, and thereby infringing upon the contractual right. For the reason that a city is only a part of the government, created for the purpose of assisting in the carrying on of the governmental affairs, its charter may be altered, changed or annulled, in order to meet the demands of the government and the purpose for which it was created. The city may pass ordinances for the betterment of its internal so- ciety and business, but these must be consistent with its charter and ' Broome v. New Jersey Tel. Co., 42 Jersey City, 40 X. J. 303, 8 Atl. 123, N. J. Eq. 141, 7 Atl. 851; New York (50 Am. Rep. 619; Barhitc v. Home Tel. and New Jersey Tel. Co. v. Township Co., 50 N. Y, App. Div. 25. of East Orange. 42 Ind. 490, 8 N. E. '- Whiting v. West Point, 88 Va. 905, 289; Domestic Tel., etc., Co. v. Newark, ]4 s. E. f)08, 15 L. R. A. 8G0n, 29 Am. 16 Am. St. Rep. 293. St. Rep. 750; Wilson v. Beyers, 5 «Atty.-Gen. v. United Kingdom Elec- Wash. 303, 34 Am. St. Rep. 858; South trie Tel. Co., 30 Beav. 287; Reg. v. Covington, etc., R. Co., v. Berry, 93 Ky. United Kingdom Electric} Tel. Co., 9 43, 15 L. R. A. C04n, 40 Am. St. Rep. Cox. C. C. 174. IGl: Pliilips v. Denver. 19 Colo. 179, 'See Federal Grants— chapter there- 41 Ani. St. Rep. 230; Chauper v. Green- on. castle. 138 Ind. 339, 46 Am. St. Rep. « Abbott V. Duluth, 104 Fed. 833 390. 35 N. E. 14, 25 L. R. A., 768n. (constrning Laws of Minn. 18G0. ch. 12. "City \-. Parker, 114 Ala. 118, 21 So. § 11) ; Irwin v. Great Southern Tel. Co. 452, 02 Am. St. Rep. 95. 37 La. Ann. 03: Ihulson Tel. Co. v. * See Ciiapter G. 88 TELEGEAPH AXD TELEPHONE COMPANIES. \_^ 91 the laws of the state. This is one of the delegated powers and may be exercised in any manner not inconsistent with the laws of the land. For instance, the manner in which the streets are kept and main- tained is left partly to city control with the consent of the state ; and, yet the streets do not belong to the municipality nor to the citizens therein/ but they belong to the public. They are public thorough- fares over and along \vhich all citizens have the same right to travel ; and the state should and does therefore have them under the same control and general supervision as it has other public highways. The state has such control over the streets and public highways as to prevent them from being obstructed or used in any manner which would incommode public travel. It may grant the license to any pul)- lic enterprise, which has an interest to perform toward the govern- ment to use the streets for the purpose of carrying on its business ; but there must not be such a use of the license as would interfere with public travel. For instance if the streets are so thickly planted with telephone poles and in such a manner as to endanger public travel, they may be required to be moved ; or because of the noise and dan- ger of a multiplicity of wires in a large city, they may be required to be placed under ground.^ § 92. State control. Statutes authorizing a corporation to construct lines of telegraph along and upon the public streets, by the erection of the necessary fixtures, including posts, piers, and abutments for maintaining wires, do not grant any interest in such streets.^ At most, they only confer a license to enter thereon for the purposes named, and merely deter- mine that one of the purposes for which the streets may be used is the erection of poles and the stringing of wires for the business of tele- gTaphing; and that such use is a public one, not inconsistent with the use of the street for general street purposes.^" Such grants do not abdicate its power over the public streets, nor in any way curtail ^See note to McCorniick v. District " American, etc., Tel. Co. v. Hess, 125 of Columbia, 54 Am. Rep. 291. N. Y. 64], 21 Am. St. Rep. 764, 13 L. « American, etc., Tel. Co. v. Iless, 125 R. A. 454n. New York 641, 21 Am. St. Rep. 764. "Id. 13 L. R. A., 454n. ^ 94] CONSTRUCTION AND MAINTENANCE. 89 its police power to be exercised for the general welfare of the public ; and if the poles and wires become a serious obstruction and nuisance in the streets, the legislature may take such action and make such provisions by law as are needful to remove the nuisance and restore the utility of the streets for ])ublic purposes. ^^ § 93. Right may be delegated to city. The power to gi-aat licenses to telephone companies to construct and maintain their lines in municipalities may be delegated to the latter; but this power must he expressly granted by the state. The right, then, virtually comes direct from the state, and the municipal authority only gives permission to use the same; for the latter may attempt to exercise the right to grant such license and yet the state may prevent the same from being enjoyed. ^^ The municipal author- ity has no power to enlarge upon the rights delegated ; ^^ otherwise they would be exercising the same power in this respect as that of the legislature, which it cannot do, since the power to control streets and public highwvays rest ultimately in the latter. § 94. City control. \Vhile the grant to telephone companies to use the streets for tele- phonic purposes is derived from the state — which also partly controls the manner of their use — the city may control the erection, construc- tion and maintenance of these companies' lines as shall best secure the public safety, convenience, and freedom in the use of the streets. The design is to invest telegraph companies with the right to use the streets of an incorporated town for the purpose of erecting their poles therein, subject to such municipal control as shall be necessary to se- cure the public safety, convenience and freedom in the use of the streets.^'' Thus, municipal authorities may say what streets shall be used ; at what points in the streets the poles shall be erected ; and how they shall be planted and secured, but they have no power to lay an embargo. They may adopt regulations fixing the elevation at which 111(1 enzie, 74 Md. 36. 28 Am. St. Rep. 219, '» Mont^onicn- v. Pavkor. 21 So. 4»2. 21 Atl. 690. " Chespeake, 'etc.. Tel. Co. v. Mack- "Barber v. Rapbury, 11 Allen 320; Angell on Highways, § 223. 90 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 94 telegraph wires shall cross the streets; and thej may also prescribe such other precautions as may be reasonably necessary to the safety of travel. They have the right to regulate but not to interdict, and their regailation to be valid must be reasonable and fair.^^ § 95. Unauthorized use — nuisances. Legislative sanction directly given or indirectly conferred through ])roper municipal action is necessary to authorize the use of streets for the posts of a telephone company. If such posts be erected within the limits of a street or highway without such sanction, they are nui- sances ; ^^ but are otherwise when such rights are sanctioned by stat- ute. ^'^ When the right is conferred by the concurrent legislative and municipal authorities to a telephone company to erect its poles and suspend its wires in and over the streets of a city, this fact will pro- tect such company from being treated as a trespasser, and its work from being declared a nuisance ; that is, if they are so constructed as not to obstruct or interfere with the use of the streets by the public or the owner's right of ingress or egress to and from his abutting IDroperty.^^ § 96. Additional servitude — in general. While the legislature has authority, in the exercise of the police powTr, to determine as to whether the erection of poles and stringing of wires of a telephone corporation along and upon streets and public highways is a public use, not inconsistent with the uses to which such highways are adopted, yet the difficult and perplexing question which has so often puzzled the courts is, whether or not the legislature may authorize the use of streets and highways for such purposes, without providing for the adjoining landowner to be compensated therefor. In other w^ords, whether or not, the erection of poles, guys, abut- " American U. Tel. Co. v. Town of " Chespeake, etc., Tel. Co. v. Macken- Harrison, 31 X. J. Eq. G27. zie, 74 Md. 36, 28 Am. St. Rep. 219, "Regina v. United Kingdom Electric 21 Atl. 690. Tel. Co., 31 L. J. M. C. 156, 2 Best & "Southern Bell Tel. Co. v. Francis, S. 647, 9 Cox. C. C. 174; People v. Mut. 109 Ala. 224, 55 Am. St. Rep. 930, 19 Tel. Co.,64, How. Pr. 120; Grove v. Fort So. I., 31 L. R. A. 193. Wayne, 45 Ind. 429, 15 Am. Rep. 262. ^ 97] CONSTRUCTION AND MAINTENANCE. 91 ments and the stringing of wires of a telephone company upon and along streets and highways, by authority of the state, is a different use than that of a public easement for travel — and that for which it was acquired from the public, in whatever manner as that by the exercise of the power of eminent domain, by prescription, by dedica- tion or by grant — thereby creating an additional servitude to the easement, and for which the original grantor or the party in whom the fee is held or the adjoining lot or landowner is entitled to com- pensation. This question is by no means settled by the courts, as some hold — and that by good reason — that the construction of a line of these companies upon the liighways is not an additional servitude of the easement originally granted and thereby entitling the land owner to additional compensation ;while equally as many, if not more of the courts, of later setting, have held otherwise. It will now be our pleasure to discuss at some length both sides of this question, giving as briefly as possible the reasons and opinions presented by the au- thorities on either, and then harmonizing as nearly as it is in our power these differences, § 97. Taking of property for public use — what is. In discussing this question, it might be Avell, first, to say a few words as to what is understood by taking property for public use as comprehended by the constitution when it declares that no prop- erty shall be taken for public use without first compensating the owner thereof. It may be stated as a general principle — as was very ably observed by an eminent writer ^^ — that when the lawful, rights of an individual to the possession, use, and enjoyment of his land are in any degree abridged or destroyed by reason of the exercise of the power of eminent domain, his property is, yro tanto, taken for public use. In early times it was held that property could be deemed to be taken, within the meaning of a constitutional provision that private property should not be taken for public purposes without just com- pensation, only when the owner was wholly deprived of its posses- tion, use and occupation. But a more just and liberal doctrine has been long since firmly established. An actual physical taking of " Lewis on Eminent Domain, § 56 Groves v. Rowell, 10 N. J. Eq. 211. 92 TELEGRAPH AND TELEPHOXE COMPANIES, [§ 97 the property is not necessai'}- to entitle its owner to compensation. A man's property may be taken within the meaning of this constitu- tional provision, although his title and possession remains undis- turbed. To deprive him of the ordinary beneficial use and enjoy- ment of his property is, in law equivalent to the taking of it, and as much a taking as though the property itself were actually taken,^*^ yet in order for him to be able to enforce this right, his property must be directly encroached upon.-^ § 98. Same continued — illustrations. The following cases may be cited as being such as fall under this constitutional provision whereby additional servitude is placed on the easement for which the landowner should be compensated: The appropriation of a country highway to the use of a steam railroad is undoubtedly the imposition of a new servitude, and amounts to the taking of the property of an abutting owner, to whom additional compensation must be made.-- Where the fee of the street of a city is in the abutting owner, and not in the city ,2^ the construction of a railroad, for the purpose of transferring freight cars from the termi- nals of one railroad to another -^ and not regarded merely as an ex- tension of the ordinaiy uses to which the streets have been dedi- cated,^^ is regarded as an imposition of a new servitude, for which '^ Lewis on Eminent Domain, §.56; " Cooley on Const. Limit. (6 Ed.), Tiedeman on Limit of Police Power, 683. 397; Cooley on Const. Limit. (6 Ed.), ^ Carli v. Stillwater St. Pt., etc., Tel. 670; Hooker v. New Home & N. Co.. Co., 28 Minn. 373. 14 Conn. 146, 36 Am. Dec. 477; Rigmy =* Carli v. Stillwater St. R., etc., Tel. V. City of Chicago, 102, HI. 64; Boston Co., 28 Minn. 373. and Rapbury Mill Corporation v. New- " Carson v. Central R. Co., 35 Cal. man, 12 Pick. 467, 23 Am. Dec. 622; 325; Market Street R. Co. v. Central Grand Rapids B. Co. v. Jarvis, 30 Mich. R. Co., 57 Cal. 583; Elliott v. Fair Ha- 308; Ashley v. Port Huron, 35 Id. 296, ven, etc., R. Co., 32 Conn. 579; Savan- 24 Am. Rep. 552; West Orange v. Field, nah, etc., R. Co. v. Mayor, etc., of Sa- 37 N. J. Eq. 600, 45 Am. Rep. 670; Sei- vannah, 45 Ga. 602; Brown v. Duples- fert V City of Brooklyn, 101 N. Y. 136, sis, 14 La. Ann. 842 ; Briggs v. Lewis- 54 Am. Rep. 664. ton, etc., Co., 79 Me. 363, 10 Atl. 47; "Kenneth Petition 24, N. H. 139; Peddicor-i v. Baltimore, etc., R. Co., 34 People V. Supervisors of Ouida County, ^id. 463; Hess v. Baltimore, etc., R. 19 Wend 10'> Co., 52 Md. 242, 30 Am. Rep. 371: <§ 100] COXSTRLX'TIOX AXD MAIXTEXAXCE. 93 compensatiou must be made to the owner.-*' Land taken for a street cannot be appropriated as a site for a public pound or jail without making compensation to the abutting owner; -'^ nor, for a market- house; -^ nor, for a house in which to confine tramps.-^ § 99. When dedicated for street purposes — not an imposition. Whenever land is taken or dedicateil for a city street, it is un- doubtedly appropriated for all the ordinary and usual purposes of such a street; it has been held therefore that sewers may be con- structed in a street and gas and water pipes may be laid in it for the purpose of supplying the inhabitants with water and gas.^*^ But the laying of such pipes in an ordinary country road is the imposition of an additional servitude, and compensation must, therefore, be made to the abutting ownier:"^ this, therefore, leads us to discus? briefly the difference between a city street and a public highway — as is commonly understood — with respect to what constitutes an addi- tional servitude on each. § 100, The different uses to which streets and highways may be put. The uses to which streets in a city may be put are greater and more numerous than those of an ordinary road or highway in the country. \Yith reference to the latter all that the public acquires is the ease- ment of passage and its incidents; and hence, the owner of the soil parts with this use only, retaining the soil : by virtue of this owner- Jliiuliman v. Patterson, etc., R. Co., 17 U51 ; roid v. Chicago, etc., R. Co., 14 N. J. Eq. 75,86 Am. Dec. 252; Mahody Wis. 009, SO Am. Dec. 791. V. Bu.shwick R. Co., 91 N. Y. 1-48, 43 -• State v. Mayor, etc., of Mobile, 5 Am. Rep. 661. Part. 27'), 30 Am. Dec. 564. =" Southern Pac. R. Co. v. Rud, 41 ^ State v. Laverack, 34 X. J. L. 201. Cal. 256: Jurley v. Union Branch R. -"' Winchester v. Capron, 63 N. H. 605. Co., 26 Conn. 249, 68 Am. Dec. 392; 4 Atl. 795. Indianapolis, etc., R. Co. v. Hartley. ^" Croake v. Flatbush, etc., Co. 29 67 111. 43!i, 10 Am. Rep. 624; Eliza- Hun. 24-5; State v. Laverack, 34 X. J. beth, etc., R. Co. v. Cowles, 10 Bush 382, L. 201. 19 Am. Rep. 67; Williams v. N. Y. Cen- " Bloonifield G. L. Co. v. Calkins, 62 tral R. To.. 10 X. Y. 07. 09 Am. Dec. X. Y. 380; Sternberg's Appeal, 111 Pa. St. 35, 2 Atl. 105, 50 Am. Rep. 246. 94 TELEGRAPH AND TELEPHONE COMPANIES. [§ 100 ship he is entitled, except for the purposes of repair, to the earth, timber, and grass growing thereon, and to all minerals, quarries, and springs below the surface. But with respect to the streets in popu- lous places, the public convenience requires more than the mere right of way over and upon them. They may need to be graded, and there- fore the municipal authorities may not only change the surface, but cut down trees and dig up the earth ; they may use them in improv- ing the street ; and they may make culverts, drains and sewers upon or under the surface. Pipes may also be laid under the surface when re- quired by the various agencies adopted in civilized life, such as water, gas, electricity, steam and other things capable of that mode of dis- tribution.^^ § 101. Cases holding not entitled to compensation. In consideration of the fact that many of the state courts have dif- fered widely on this subject — the question being res intergra in some — we have deemed it proper to set forth as briefly as possible some of the most important opinions of the different courts in order that the reader may himself see the ground whereon the great legal thinkers have used their reason. While we are aware that it is not usual for a writer to quote at any length court opinions, yet we feel by adopting this method, all who may peruse this work may be thrown in closer touch with the deep and profound judicial reasoners of our country and those who have arrived at different conclusions after incessant and untiring research. In accordance to such method we shall first take up the cases wherein it has been held that the con- struction of telegraph and telephone lines upon a street or public highway does not constitute an additional burden to the easement and thereby entitle the abutting landowner to additional compensa- tion. ^ 2 Dillon, Munc. Corp., §§ 65G, 688: Pac. 870, 6G L. E. A. 171; Cumb. Tel. Chespeake, etc., Tel. Co. v. :\Iackenzie, Co. v. Aviitt, 85 S. W. (Kj-.), 204; 74 Md. 36, 28 Am. St. Rep. 219, 21 Atl. Gates v. Northwestern Tel. Ex. Co., 60 690. For the reason that the uses to Minn. 530, 51 Am. St. Rep. 343, 63 N. which streets and highways may be W. Ill, 28 L. R. A. 310; Luther v. put, the following cases hold that a tel- Bridgeman, 50 S. E. (W. Va.) 40. But ephone line on a highway is not an ad- as holding to the contrary effect, see ditional servitude: ilcCamm v. John- Anderson v. Delhi, etc., Tel. Co., 66 son County Tel. Co., 69 Kan. 210, 70 App. Div. 89, 86 N. Y. Supp. 771. "§. 102] CONSTKUCTION AND MAINTENANCE. 95 § 102. Same continued — opinions. Judge Mitchell of the Minnesota court, while considering this sub- ject and the nature and extent of the public easement in a highway, has this to say : "If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization ad- vances. In the most primitive state of society, the conception of a highway was merely a footpath ; in a slightly more advanced state, it included the idea of a way for pack animals ; and, next, a way for ve- hicles drawn by animals — constituting, respectively, the "iter," the "actus," and the "via" of the Romans. And thus the methods of us- ing public highways expanded with the gTowth of civilization, until to-day our urban highways are devoted to a variety of uses not known in former times, and never dreamed of by the o^vllers of the soil when the public easement was acquired. Hence, it has become settled that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the OMTier of the land when the easement was acquired and are more onerous to him than those then in use It is now universally conceded that urban highways may be used for constructing sewers and laying pipes for the transmission of gas, wa- ter, and the like for public use. . . . As a matter of fact, most of these uses were unknown when the public easement was acquired in many of the streets in the older cities In our judgment, public highways, whether urban or rural, are designed as avenues of communication; and, if the original conception of a highway was limited to travel and transportation of property in movable vehicles, it was because these were the only modes of communication then knoAAm ; that as civilization advances, and new and improved methods of communication and transportation are developed, these are all in aid of and within the general purpose for which highways are de- signed. Whether it be travel, the transportation of persons and property, or the transmission of intelligence and whether accom- 96 TELEGRAPH AXD TELEPHONE COMPANIES, [>§, 102 plislied bj old methods or by new ones they are all included within the public "highway easement/' and impose no additional servitude on the land, provided they are not inconsistent with the reasonably safe and practical use of the highway in other and usual and neces- sary modes, and provided they do not unreasonably impair the spec- ial easement of abutting o\\aiers in the streets for purposes of access, light, and air." ^^ § 103. Same continued — new use of the easement. The courts of Missouri uniformly hold that the construction of telegraph and telephone wires along and upon the streets and public highways, is not a new and additional servitude thereon, but is a new use of the easement to which these highways may be put.^* One of the decisions ^^ in that state was based on the following reasons: "These streets are required by the public to promote trade and facil- itate communications in the daily transaction of business between the citizens of one part of the city Avith those of another, as well as to accommodate the public at large in these respects. If a citizen living or doing business on one end of Sixth street wishes to com- municate with a citizen living and doing business on the other end, or at any intermediate point, he is entitled to use the street, either on foot, on horseback, or in a carriage, or other vehicle, in bearing the message. The defendants in this case propose to use the streets by making the telephone poles and wires the messenger to bear such communications instantaneously and with more dispatch than any of the above methods, or any other known method of bearing oral communications, i^ot only would such communications be borne with more dispatch, but to the extent of the niunber of communications daily transmitted by it, the street would be relieved of that number of footmen, horsemen or carriages. If a thousand messages were daily transmitted by means of telephone poles, wires and other appli- ances used in telephoning, the street through these means would serve =^Cates V. Northwestern Tel., etc., Co. Tel. Co., 8S Mo. 258, 57 Am. Rep. 398.: 60 Minn. 539, 57 Am. St. Kep. 544, 63 St. Loui.s v. Bell Tel. Co., 96 Mo. 623, N. W. Ill, 28 L. R. A. 310. 9 Am. St. Rep. 370. »»Gay V. Mut. U. Tel. Co.. 12 Mo. ^sj^ija gidg. Assn. v. Bell Tel. Co., App. 485; Julia Bldg. Assn. v. Bell above cited. <^ 103] CONSTEUCTIOX AND MAINTENANCE. 97 the same purpose, which would otlierwibe require the use either by a thousand footmen, horsemen or carriages to effectuate the same pur- pose. In this view of it the erection of telephone poles and wires fur the transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message trans- mitted, relieve the street of a servitude or use by a footman, horse- man or carriage. If it be true, as laid down by the authorities herein cited, that ^vhen the public acquires the right to a street, either by dedication, grant or communication, the municipality has power l^^ appropriate it not only to such uses as are common and in vogue at the time of its acquisition, but also to such new uses as advanced civilization may suggest, as conducive to the public good, the conclu- sion is inevitable that the use of Sixth street in the manner and f<>r the purpose proposed is allowable, for it cannot with any show of reason be denied, that the means these appliances would afford for the instantaneous transmission of communications for the transaction of business, without resorting to the slower and common methods of bearing them, would be conducive to the public good, and make the street by these means serve one of the chief purposes for which it was dedicated. But it is argued that the erection of two telephone poles, each eighteen inches at the bottom with a gradual taper to the top, would obstruct the street, and deny to the public the complete and unrestricted use of the street. This arg-ument, I think is more spe- cious than sound. It is true that to the extent of the space of eigh- teen inches each of the poles proposed to be erected would be an ob- struction, but the same could be said of lamp-posts erected on the streets of a city, the necessities of which might require its streets to l)e lighted with oil, gas or electric lights; and yet no one would lie heard to complain that the lamp-posts constituted such an obstructi 103 abutting loto^vner entitling him to compensation, are correct it would seem logically to follow that damages resulting from such use need not be compensated for. If, bj reason of the dedication the public have the right to apply the private property of the plaintiff to the use proposed, without his being entitled to compensation, how can it be that it becomes entitled to compensation for damages, following as an incident from an act which the dedicator by his dedication has authorized to be done ? If the dedication of the street is suffi- ciently operative to allow private property in the soil of the street to be actually invaded, and physically taken for a street use without compensation, why is it not sufficiently operative, if in such taking damages ensue, to relieve the taker from the payment of such dam- ages ? If, by dedicating property for a street, the dedicator gives up his right to compensation for the uses included in the dedication, how can it be said that he does not also give up his right to compensa- tion for damages to adjacent property not taken, resulting from the application of the street to use which by his dedication he authorized it to be put ?" § 104. Same continued — upholding same. It has been held by other courts that the above rule was law, and that the legislature might authorize the construction of lines of these companies upon the highways without compensating the abutting landowner."® The court in one of these cases, said: ''When the land was taken for a highway, that which was taken was not merely the privilege of traveling over it in the then known vehicles, or using it in the then known methods for either the conveyance of property or transmission of intelligence. . . . The discovery of the tel- egraph developed a new and valuable mode of communicating intel- ^ Pierce v. Drew, 136 Mass. 75, 49 W. 145, 24 L. R. A. 721n; Compare Am. Eep. 7. See also Hewett v. West, Williams v. Erie Tel. Co., 37 Minn. U. Tel. Co., 4 Mackay (D. C.) 424; 347; Gay v. ]Mut. U. Tel. Co., 12 Mo. Magee v. Overshiner, 150 Ind. 127, 49 491; State v. St. Louis, etc., R. Co., N. E. 951, 65 Am. St. Rep. 358, 40 L. 86 Mo. 288; Jforshfield v. Rocky Mt. R. A. 370; Irwin v. Great Southern Bell Tel. Co.. 12 Mont. 102; Kirby v. Tel. Co., 37 La. Ann. (33; Boston v. Citizens' 'Jel. Co.. 97 N. W. 3; Patton Richardson, 13 Allen (Mass.) 160; v. ( 'haUaiino.^;i, lOS Tonn. 197. People V. Eaton, 100 Mich. 208, 59 X. ^ 105] CONSTKUCTIOX AND MAIXTEXAXCE. 99 ligencc. Its use is certainly similar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post-box or the mail-coach. . . . We are therefore of the opinion that the use of a portion of a highway for the public use of companies organized under tlic laws of the state for the transmission of intelligence by electricity, and subject to the supervision of the local municipal authorities, which has Ix-cn permitted by the legisla- ture, is a public use similar to that for wliifli the highway was orig- inally taken, or to which it was originally devoted and that the 0A\Tier of the fee is entitled to no further compensation. . . . That it was the intent of the statute to grant to those corporations, formed under the general incorporation laws for the purpose of transmit- ting intelligence by electricity, the right to consti*uct lines of telegraph upon and along highways and public roads, upon the locations as- signed them by the officers of the municipalities wherein such ways are situated, cannot be doubted. . . . There remains the inquiry whether there is any objection to the statute because it does not pro- vide a sufficient remedy for the owners of the property near to or adjoining the way, M'ho may be incidentally injured by the structures which the telegraph companies may have been permitted to erect along the line of the highway and within its limits. . . . The only compensation to which such owner is entitled is that which the legislature deems just, when it ]~»ormits the erection of these struc- tures. The legislature may provide for compensation to the adjoin- ing owmers, but without such provision there can be no legal claim to it, as the use of the highway is a lawful one." § 105. The ground upon which these cases are sustained. In reviewing these cases in which it is held that the abutting land- owner should not have additional compensation for the construction of a line of telephone along and upon the easement, it will clearly be seen that the ground upon which such opinions are based is, that they are only a new method of enjoying an old existing use, and one actually in the minds of the parties at the time the easement was ac- quired. •'" Some of the authorities, reaching the same conclusion, *^ Echols V. EvansviUe St. R. Co., 7S etc., K. Co. v. Wliitinjr, etc.. R. Co.. Ind. 201. 41 Am. Rep. 5G1; Chicago, 139 Tnd. 207, 28 X. E. G04, 26 L. R. A. 100 TELEGRAPH AXD TELEPHONE COMPANIES. [^ 105 treat the uses of streets, arising from dedicatiou or condemnation, as expansive, and not confined to uses already permitted, but, as ci\- ilization advances admitting new uses.^^ ''When land is taken," as was ably said, "or dedicated for a town street, it is unquestionably appropriated for all ordinary purposes for a town street, not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these pur- poses is the use for carriages which run on a ground track; and the preparation of important streets in large cities for their use is not only a frequent necessity which must be supposed to have been con- templated but it is almost as much a matter of course as the grading and paving." ^^ ''When these lands were taken or granted for public highways, they were not taken or granted for such use only as might then be expected to be made of them, by the common method of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvements of the country, or the discoveries of future times, might demand." ^'* "The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly sim- ilar to, if not identical with, that public use of transmitting in- formation for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail- coach. It is a newer-discovered method of exercising the old public easement, and all a]3propriate methods must have been deemed to have been paid for when the road was laid out." ^^ § 106. Same continued — not things of motion. A reason given why they are considered an additional servitude to the highways, is, that given by some courts which held that the 337, 47 Am. St. Rep. 204; Lockhart Am. St. Rep. 543; Detroit City R. Co. V. Craig Street R. Co., 139 Pa. St. v. Mills, 85 Mich. 634, 48 N. W. 1007. 419, 21 All. 26; Detroit City R. Co. =» Elliott on Roads and Streets, p. 529. V. Mills, 85 Mich. 634, 48 X. W. 1007. approving Cooley's Const. Limit., 550. ^Angeil and Ames on Corp., §312; *" People v. Eaton, 100 Mich. 208, 24 Julia BUg. Assn. v. Bell Tel. Co., 88 L. R. A. 721n, 59 N. W. 145. Mo. 258, 57 Am. Rep. 398; Cates v. ■"Pierce v. Drew, 130 Mass. 75, 49 Northwestern Tel., etc., Co., 60 Minn. Am. Rep. 7. .139, 03 IN. W. Ill, 28 L. R. A. 310, 51 <^ 106] CONSTRUCTION AND MAINTENANCE. 101 poles arc not in motion as are ordinary instruments of travel, Lut this idea was refuted by the following case: "It is said that the primary law of the street is motion. It is true, motion the law of the street, in the sense that the person or thing to be transmitted or transported must move ; but it is not true in the sense that the me- dium or agency by or through which it is conveyed or transmitted must move. Pipes laid for the transmission of water, gas, and steam are inunovable. So are the tracks of street railway, also the poles and wires of the trolley system. And it can make no difference in principle whether the immovable structure is on, under, or above the surface of the ground, for the rights of the owner of the fee are the same in either case. Subject only to the public easement for high- way purposes, he remains the owner of the land upward and do^vn- ward indefinitely. If the transmission of intelligence by telegraph or telephone is not included in the public easement in a highway, it would be equally an invasion of his rights of property, even if the wires were placed under the ground. If an immovable structure in a highway constitutes an additional servitude, it is not merely be- cause it is immovable, but because it unreasonably interferes with the general use of the street by the public, or because it unreasonably impairs the special easement of abutting owners."^- "Poles and wires for electric lighting have been admitted as a proper' use, on the ground that the streets are lighted and their general uses thereby made safer and more expeditious. Incidentally, the same use has been employed for supplying light to ])ublic, business, and private houses. Sewers have been admitted as not constituting an additional servitude because they afforded a means of drainage for the streets, although one use was in carrying the waste from the building of cit- izens. Gas mains and poles were admitted in like manner as elec- tric lighting systems and for like uses. They were always deemed to constitute a beneficial use of the streets as in some degree aiding in the means or opportunities for conducting the affairs of the inhab- itants, and in facilitating the communication indispensable to such affairs." "3 "Cutcs V. Northwestern, etc., Tel. " :^^a,£:oe v. Ovorsliiner, 150 Ind. 127. Co., 60 Minn. 539, 51 Am. St. Rep. 546, 05 Am. St. Eep. 360, 40 X. E. 450. 40 2S L. R. A. 310, 63 N. W. 111. L. R. A. 370. 102 TELEGEAPII AND TELEPHONE COMPANIES. [^ 10- § 107. Contrary view — additional servitude — so held. While the reasoning, to the effect that telegraph and telephone lines constructed upon streets and country highways create no addi- tional servitude thereon, is very strong, profound and apparently uncontrovertible, yet the weight of opinion — and that more recently promulgated — holds that they do create a different use of the ease- ment than that contemplated by the parties at the time the public ac- quired this right and thereby entitling the abutting landowner to be additionally compensated.^'' In discussing this side of the point at issue, we shall first deal with the subject when the title to the fee of the easement is in the abutting lotowner or land owner ; second, when the fee is in the public ; and third, when the fee is in a third party. And while discussing each of these subordinate subjects, it ** United States.— Fac. Postal Tel. Cable Co. v. Irwin, 49 Fed. 113; Kes- ter V. West. U. Tel. Co., 108 Fed. 926. Illinois. — Goddard v. Chicago, etc., R. Co., 202 111. 362, 66 N. E. 1066, affirm- ing 104 111. App. 536; American Tel., etc., Co. V. Jones, 78 111. App. 372; Union Electric Tel., etc., Co. v. Apple- quist, 104 111. App. 517; Postal Tel. Cable Co. v. Eaton, 170 111. 573, 39 L. R. A. 722, 62 Am. St. Rep. 390, 49 N". E. 311. Nebraska. — Brownson v. Albion Tel. Co., 93 N. W. 201, 60 L. R. A. 426. Neio Jersey. — Winter v. New York, etc., Tel. Co., 51 N. J. L. 83, 16 Atl. 188 ; Nicoll v. New York, etc., Tel. Co., 62 N. J. L. 733, 72 Am. St. Rep. 666, 42 Atl. 532; Holsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380. Neio York. — Metropolitan Tel., etc., Co. V. Colwell Lead Co., 50 N. Y. Super. Ct. 488; Tiffany v. U. S. Illuminating Co., 51 N. Y. Super. Ct. 280, 67 How. Pr. (N. Y.) 73; Andrews v. Delhi, etc., Tel. Co., 36 Misc. (N. Y.) 23; Gray v. New York State Tel. Co., 41 Misc. (N. Y.) 108. North Carolina. — Hodges v. West. U. Tel. Co., 133 N. C. 225, 45 S. E. 572. North Dakota. — Donovan v. Allert, 11 N. Dak. 289, 58 L. R. A. 775, 91 N. W. 441. OMo.— Dailey v. State, 51 Ohio St. 348, 37 N. E. 710, 24 L. R. A. 724, 46 Am. St. Rep. 578; Galium v. Colimibus Edison Electric Light Co., 66 Ohio St., 166, 64 N. E. 141, 58 L. R. A. 782; Schaff V. Cleveland, etc., R. Co., 66 Ohio St. 215, 64 N. E. 145; Denver v. U. S. Tel. Co., 10 Ohio Dec. 273. Pennsylvania. — Lancaster, etc.. Turn- pike Road Com. v. Columbus Tel. Co., 18 Lane. L. Rev. 161. Texas. — Erie Tel., etc., Co. v. Kenne- dy, 80 Tex. 71. Virginia.— West. U. Tel. Co. v. Wil- liams, 86 Va. 696, 19 Am. St. Rep. 908, 6 L. R. A. 775n. Wasliinr/ton. — Spokane v. Colley, 16 Wash. 610. Wisconsin. — Kruger v. Wisconsin Tel. Co., 106 Wis. 96, 81 N. W. 1041. § lOS] CONSTRUCTION AND MAINTENANCE. 103 shall be our most earnest endeavor to harmonize to a certain degree, this very important, comprehensive, intricate and unsettled subject § 108. Same continued — rights included in an easement. Before taking up either of these subjects, it may be well to learn what are the uses to which an easement may be put in order that they may fall within the meaning of the term of public travel; or, in other Avords, what uses were contemplated by the parties at the time the grant was made, to which the easement might be put, and for which consideration w^as given ? ''The public easement ... is primarily a right of passage over the sui*face of the highway and of so using and occupying the land within it as to facilitate such pas- sage. In this primary right are included the grading, paving, clean- ing, and lighting of the highway, the construction and maintenance of street railways^" with the apparatus proper for their use, and the maintenance of appliances conducive to the protection and con- venience of travelers while using the way. Secondarily, the ease- ment covers uses which, though their relation to the right of passage is remote or even fanciful, are so generally advantageous to the owners of the fee, the owners of abutting property, that, rather by common consent, and custom, than by logical deduction from the primary design, they are now recognized as legitimate. Such are the construction and maintenance of sewers, water pipes and gas pipes for the convenience of persons occupying neighboring lands." ^® It has been held, however, that telephone companies do not fall with- in the meaning of an easement in its secondary sense.^^ "The pri- mary intention and idea of the use of the street was for travel — moving from place to place in any way that does not interfere with the use of the street for travel in any other way. The manner or *^ Baker v. Sclma Street, etc., R. Co., as well as passengers: Chicago, etc.. R. 135 Ala. 552, 33 So. 685, 93 Am. St. Co. v. Milwaukee, etc., R. Co., 95 Wis. Rep. 42; San Antonio, etc., R. Co. v. 561, 60 Am. St. Rep. 136, 70 N. W. Limberger. 88 Tex. 79, 30 S. W. 533, 678, 37 L. R. A. 856. 53 Am. St. Rep. 730; Doan v. Lake <• State v. Loverack, 34 N. J. L. 201. St., etc., R. Co., 165 111. 570, 36 L. R. *^ Nicoll v. New York, etc., Tel. Co.. A. 97, 56 Am. St. Rep. 265, 46 N. E. 62 N. J. L. 733, 72 Am. St. Rep. 666, 520. It is otherwise if the railway is 42 Atl. 583. for the transportation of merchandise 104 TELEGRAPH AND TELEPHONE COMPANIES. \_^ lOS mode of travel is not restricted to those means known or in use at the time of the dedication, but may be those modes of travel that are the result of modern inventions." *^ A telephone company ^'is a totally distinct and different kind of use from any heretofore known. It is not a mere difference in the kind of vehicle, or in their number or capacity, or in the manner, method, or means of location." '*^ ''Wliatever the means used, the object to be attained is passage over the territory embraced within the limits of the street. Whether as a pedestrian, or on a bicycle, or in a vehicle drawn by horses or other animals, or in a vehicle propelled by electricity, or in a car drawn by horses or moved by electricity, the object to be gained is moving from place to place." ^^ § 109. Same continued — fee in abutting ov^ner. The fee in an easement for public travel may be either in the abutting lotowner or landowner, which is most often the case;^^ or, h may be in the public, acquired at the time the easement was obtained ; or, it may be in a third part}^, or one from whom the abutting owner acquired, directly or indirectly, possession of his property, exclusive of the title to the easement which was granted before the abutting owTier acquired possession of his property. If the fact be conceded, that the public only acquires the easement for the purpose of travel and the incidents pertaining thereto — and such as was described above — any uses other than these, would be nothing more nor less than taking the property of the abutting owner without due compen- ^* Donovan v. Allert, 11 X. Dak. 280, collected. The presuuiption respecting 91 N. W. 441, 95 Am. St. Rep. 726, 58 ownership of the land over which a L. R. A. 775. liighway runs is, that the adjacent pro- *'•' Eels V. American Tel., etc., Co., 14.3 prietors ei;ch own to the middle of such X. Y. 13:3. 38 N. E. 202, 25 L. R. A. highway; or if the same person owns G40. on both sides, that the whole road be- =>» Donovan v. Allert, UN". Dak. 289, longs to him, subject to the public ease- 91 N. W. 441, 95 Am. St. Rep. 725, ment of the right of passage in either .^8 L. R. A. 775. case: West. U. Tel. Co. v. Williams. '"^ Peck V. Smith, 1 Conn. 103, 6 Am. 86 Va. 696, 19 Am. St. Rep. 908, 8 L. Dec. 216; Dovaston v. Payne, 2 Smith's R. A. 429, 11 S. E. 100. Lead. Cas. 90, where the authorities are <§) 110] CONSTRUCTION AND MAIXTKXA .XCK. 105 satioD, whij-li would be more than the state would have the power to do. The federal constitution guarantees that no private property shall be taken for public use without due compensation ; and, while some of the states have embodied this same provision in their consti- tutional laws, most of tliciii have enlarged on these and provided that no private ])i-operty sliall be taken, injured or damaged for public use without compensation. It is very clear that the private property of an individual and such as has not theretofore been granted for an easement cannot be taken against the consent of the owner or by a condemnation proceeding for public use without first compensating him for such property. This fact is too old to be discussed. It wa? held in early times that the owner had to be wholly deprived of the possession, use and occupation of the land, but a more just and liberal doctrine has long since been established. A man's property may be taken within the meaning of the constitutional provision, although his title and possession remains undisturbed.^- It follows, then, that when the abutting owner's reversionary interest in the property on which an easement has been granted has been taken for any other use than that for which it was granted, his guaranteed rights have been disregarded ; for while his reversionary interest may appear in- significant and far-fetched, yet this should be as securely protected by the highest laws of our land as the little spot around which his dearest and most pleasant memories dwell, and upon which majesti- cally and grandly stands the walls of his castle. § 110. Same continued — abutter's interest. "The abutter has the exclusive right to the soil, subject only to the easement of right of passage in the public and in the incidental right of property fitting the way for the use. Subject only to the public easement, he has all the usual rights and remedies of the owner of the freehold. He may sink a drain under the road ... he may mine under it." ^^ He may maintain trespass against one wh'i imlawfully cuts and carries away the grass, trees, or herbage and even against one who stands upon the sidewalk in front of his premises and uses abusive language against him, refusing to depart. He may also "Kennetfs Petition, 24 X. H. 139. "Elliott on Eoads and Stroots. p. 51!t. 106 TELEGRAPH AND TELEPHONE CO:^^PANIES. [§ 110 maintain ejectment against a railroad company which has placed its track upon his side of the street without paying or tendering damages therefor, or against an individual who has wrongfully and unlawfully encroached thereon." ^^ He "is entitled ... to the entire use of the land, except the right which the public has to use the land and materials thereon for the purposes of building and maintaining a highway suitable for the safe passage of the travelers." ^^ He "is entitled to free access to his house, and light and air for his house, without obstruction. If by any public purposes inconsistent with the gTant to the public of the use of the street, the street is obstructed in front of his lot abutting on such street, such use entitles him to com- pensation." ^'^ The question is, Does the construction and stringing of telephone wires along and upon a public street interfere with the free passage thereon or obstruct ingress and egress of air, light and passage to the abutting owners of property ? As said before, the amount of damages or the degree or the character in which the in- terference or obstruction is made should have very little to do in the consideration of the question. The main question is, Is there any interference with or obstruction to the uses of the easement; or, is it used for an additional purpose other than that for which it was granted ? § 111. Same continued — exclusive and public use. For the reason that the public has acquired an easement over pri- vate property for the purposes of travel, is no reason why a quasi- public corporation, created for the convenience and welfare of the government, but more specially for private gain, should appropriate part of this easement for the use of such companies without compen- sating the owner of the fee when the consent has not already been obtained. "It is true that the use of a telegraph company is a pub- lic use. The company is a public corporation, as to which the public has rights which the law will enforce but these public rights can only be obtained by paying for them. The use, while in one sense "Elliott on Roads and Streets, p. s" Donovan v. Allert, UN. Dak. 289, 535. 91 K W. 441, 95 Am. St. Rep. 720, 58 =°Cole V. Drew and Wife, 44 Vt. 49, L. R. A. 775. S Am. Rep. 3G3. § 112] CONSTRUCTION AND MAINTENANCE. 107 public, is not for the public generally. It is fur the private profit of the. corporation. . . . There is no reason in law or common justice why it should not pay for what it needs in the prosecution of its business." ^"^ The streets and highways were dedicated to the public for the exclusive and unobstructed passage of its travelers and any use or hindrance to which it might othenvise be subjected, would be in violation of the grant. To use it for telephonic pur- poses would have this effect. *'The erection of poles in the streets by telegraph or telephone companies is a permanent and exclusive occu- pation of the streets by such companies, to the continued exclusion of the remainder of the public, and to that extent is a continued ob- struction of the street." '^^ § 112. Same continued — opinion on subject. As has been very ably said : ''That the erection of a telegraph line upon a highway is an additional servitude is clear from the author- ities. ... If the right acquired by the commonwealth in the condemnation of a highway is only the right to pass along over the highway for the public, then, if the untaken parts of the land are his private property, to dig up the soil is to dig up his soil; to cut down the trees is to cut down his trees; to destroy the fences is to destroy his fences; to erect any structure, to affix any pole or post, in and upon his land, is to take possession of his land ; and all these interfere with his free and unrestricted use of property. If the com- monwealth took this without just compensation it would be a viola- tion of the constitution. The commonwealth cannot constitutionally grant it to another. It is true that the use of the telegraph company is a public use ; that the company is a public corporation, as to which the public has rights which the law will enforce. But the public rights can only be obtained by paying for them. The use while in one sense public is not for the public generally ; it is for the private profit of the corporation. It is its business enterprise, engaged in for gain. The services can only be obtained upon their being paid for. There is no reason, either in law or common justice, why it should not "West. U. Tel. Co. v. Williams, 80 <« .Tayms v. Omaha St. K. Co., 53 Neb. Va. 696, 19 Am. St. Rep. 908, 11 S. E. r,.si. 74 X. \V. (i7. 39 L. R. A. 751. 109, 6 L. R. A. 775n. lOS TELEGRAPH AND TKI.EPHONE COIMPANIES. [<§> 112 par for ^vbat it needs in the prosecution of its business. Upon this burden being placed upon it, it can complain of no hardship ; it is the common lot of all. If the said company has use for the private property of a citizen of this commonwealth, and it is of advantage to it to have the same, it is illogical to argue that the property is of small value to the plaintiff, and in the aggregate a great matter to the plaintiff in error. This argument is not worth considering; it cuts at the very root of the rights of property. It would apply with equal force to all the transactions of life. It is sufficient to say, tlie aegis of the constitution is over this as over all other private prop- erty rights, and there is no power which can divest it without just compensation." ^^ § 113. Same continued — mandatory injunction allowed. In the following case in which a telephone company was enjoined from erecting its poles upon the streets without first obtaining the consent of the abutting owner or compensating him for such right the court said, that: "The defendants, a telephone company, without any leave or license from or consent by the complainant, but, on the other hand, against his protest and remonstrance, and in disregard of his warning and express prohibition, and without condemnation, or any other steps to 'that end, set up their poles upon his lands It is enough to say that it does not appear that the road board had any power to authorize any one to set up poles in the land of the highway, and thus subject the land to an additional servitude besides that for which it was condemned. What has been said is sufficient, of itself, to establish the right of complainant to relief; for in order to justify the defendants in setting up the poles, it is necessary for them to show that they have acquired the right to do so, either by consent or by condemnation from the owner of the soil. The designation by the city or town authorities of the streets where the poles may be set up is not enough." ®° ^''West. U. Tel. Co. v. Williams, 86 Tel. Co. v. Mackenzie, 74 Md. 3G, 2S Va. 696, 11 S. E. 109, 19 Am. St. Rep. Am. St. Hep. 219. 908, 6 L. R. A. 775n ; Chcspeake, etc., "" Broome v. New York, etc., Tel. Co.. 42 N. J. Eq. 141, 7 Atl. 851. <§ 115] COXSTKL'CTIOX AND MAINTK.N A.N u h. 109 § 114. When the fee is in the public. There may be instances when the fee to the land over which the easement was laid out, is in the public and acquired at the same time the easement was granted; then, the question which presents itself for consideration is, Whether or not this affects the rights of the abutter for additional compensation ; or, in other words, is the abut- ter entitled to additional compensation from a telephone company for the erection of its lines along the streets, whether the fee to the ease- ment is in the public or in himself? While a majority of the courts hold that it makes very little, if any, difference as to who owms the fee,^^ yet there are some which make a distinction. This distinction is shown in the following case, in which the court, said: "It ap- peared that the i:)oles and wares were erected by complainant under a grant from the board of supervisors so to do, but without the con- sent and against the protest of the defendants. The right of way granted to the supervisors was for a public road, that is to say, a way to be used by the public for ordinary travel. Where the fee of the highway is vested in the public, there is no valid legal objection to the grant by the public of a right to erect such poles and wires, with- out regard to the adjacent property-holders ; but where, as here, the fee of the highway remains in the adjacent owner, and its use for public purposes of public travel has been granted. I think it clear that every use of the highway not in the line of such travel is an additional burden, for which the proprietor of the fee is entitled to additional compensation and which cannot be constitutionally taken from him without his consent except by proceedings, regularly insti- tuted and ]irosoentod according to law." ^- § 115. The distinction — in abutting owner. While a great miniber of the courts, which are composed of the ablest expounders of the laws of jurisprudence, have declared that the °'Sto\vers v. Postal Tel. Cable Co., etc., Tel. Co., 42 N. J. Eq.. 141, 7 Atl. GS Miss. 559, 9 So. 356, 24 Am. St. Rep. 851. Contra, Hewett v. West, U. Tel. 290, 12 L. R. A. 864n; Board of Trade Co., 4 Mackey 424; Pierce v. Drew, 13G Tel. Co. V. Barnett. 107 111. 507, 47 Am. Jlass. 75, 49 Am. Rep. 7; Julia Bld.2. Rep. 453; Beesenbury v. Mut. U. Tel. Assn. v. Bell Tel. Co., 88 Mo. 258, 57 Co., 11 Abb. N. C. 440; ^letropolitan, Am. Rep. 39S. etc., Tel. Co. v. Cohvell Lead Co., 50 <^- Pacific Postal Tol. Co. v. Irwin. 49 X. Y. Sunt. rt. 4SS: Broome v. X. Y., Fed. ll:'. 110 TELEGKAPH AND TELEPHOJSE COMPANIES. [§ 115 abutter's right to additional compensation is not affected by the fact that the fee to the land on which the easement has been laid ont is in the pnblic; yet we are inclined to believe and are forced to as- sert that it is affected to snch an extent that he will not be entitled to additional compensation for such use unless it materially inter- feres with the easement of access to his property or passage over the streets. Suppose we take a case where the fee to the land, on which is laid out an easement, remains in the grantor or the abutting lot- o-\ATier. Here the public only acquires the riglit to travel over the easement, and all other rights, titles and interest to the land are in the grantor ; then if the public should lose its right in the easement, which may be done, by a relinquishment of its rights, what would be- come of these rights ? Would they not revert to the abutting owner, and that, too, whether he acquired his interest before or after the grant of the easement ? He most assuredly would. Let us suppose again, that a telephone company is constructed on this easement, with- out the abutting owner's consent or without appropriating additional compensation to him; and the same is there at the time the public loses its easement, can it be held for a moment that the company could continue to use the easement after the title has reverted to the original owner, without making compensation to him or obtaining his consent ? If it should have this right, there might be some rea- son in holding that it might occupy this easement for its right of way before the public casement has been lost, without giving addi- tional compensation to the owner of the fee ; but this, as we hold — and the same opinion is indulged in by most of the late courts, as we have shown — is not the case. The same plausible reason might be entertained, that a telephone company could as well continue to occupy an easement to which the public had lost its interest — and by reason of which the public interest had reverted back to the abutting owner — as this company would have to occupy other pri- vate property of the abutting owner and that over Avhich no easement had ever been granted. § 116. Same continued — in the public. The same results would not occur should the fee be in the public.*^^ Under these circmnstances \vc can hardly conceive of an instance «* Cleveland Burial Case Co. v. Erie v. Wisconsin Tel. Co., lOG Wis. 90, 81 R. Co., 24 Ohio Cir. Ct. 107; Kruger X. W. lOSl, 50 L. E. A. 298. § 116] CONSTRUCTION AND MAINTENANCE. Ill when the public would lose its fee in the land on which the ease- ment is laid out by any legal proceeding. It surely would not by non-user. Then, if this is the case, the telephone company could continue to use the easement as a right of way, even after a discontin- uance on the part of the public to use the easement. While it is not very clear to our mind, yet we are inclined to believe that the public might exact of these companies a compensation for the use of its easement, but the same would have to be done by a statute to that effect. \Vlien the legislature gives to telephone companies the authority to construct their poles and lines along and upon the public highways and streets, the state then at that time gives the consent for these companies to occupy these highways after they have com- plied with certain requirements and conditions — among which one may be for compensation. When, in fact, the construction of these lines upon a street or highway is an additional servitude thereon, the public, if it can, is the only one who can complain. It therefore follows that if the owner's easement of access to his property or his passage over the streets is not interfered with, he cannot be heard to complain. In other words, he cannot maintain an action for an injury to the soil or bring an action of ejectment; but he neverthe- less has a remedy for any special injury to his rights by the author- ized acts of others.^^ THus, merely stringing of wires before one's property is not an injury entitling him to preliminary in j unction,^ ^ or he cannot complain if the wires are in a conduit laid under the side\valk.^*^ But should his easement to travel be obstructed or in- terfered with, he might demand compensation of the company, not- withstanding the fact that the fee is in the public. Thus, the ease- ment of access embraces the use of an upper-story door for receiving merchandise.^" If the multiplicity of wires obstnicts the free pas- sage of air or light, or if they materially obstruct the fire depart- ment in putting out fire, whereby the property-owner is damaged, he may exact of such company compensation for the uses of the streets for its posts and wires. "Chesapeake, etc., Tel. Co. v. Mack- »•= Coburn v. New Tel. Co., 156 Iiul. enzie, 74 Md. 3G, 28 Am. St. Eep. 219. 90, 59 X. E. 324, 50 L. R. A. 671. 21 Atl. 691. «^Hays v. Columbiana County Tel. "Roake v. American Tel., etc., Co., Co., 12 Ohio Cir. Dec. 167. 21 Ohio Cir. 41 X. J. Eq.. 35, 2 Atl. 618. Ct. 480. 112 TELEGRAPH AND TELEPHONE COMPANIES, [^ 11" § 117. When title or fee is in third party. We now come to the third and last division of this subject, that is, should the abutting owner, be compensated by a telephone company which constructs its line of wires upon the street adjacent to his property, when the title is in some third party ? ^^ There may be instances where neither the abutting owner nor the public has ac- quired the fee to the land on which the easement is laid out, but that it still remains in the original owner of the property or his heirs. Un- (ier such circumstances, who, if any one, is entitled to compensation ? This question, as far as it has come to our knowledge, has never been directly adjudicated.'^'^ In such instances, there may be two enti- tled to compensation ; the original owner, and the abutter. The former for the additional burden or injury to the soil, and the latter for the interference of his access to his property. The original o^mer or his heirs would have the same right to exact of these companies additional compensation for the use of the public easement for the construction of their lines, as the abutter would have in case the fee Avas in the latter. His gTounds for same, however, would be the fact that the use was an additional burden, and not on the gTound that it was an interference with the access to his prop- erty. The abutter would have the same ground upon which to base his right for exacting compensation for the use of the public ease- ment by a telephone company, as he would have in case the fee was in the public. In order to obtain compensation from these companies, under such circumstances, it must be shown that access to his property has been interfered with and not be- cause there has been an injury inflicted upon the soil. Hence, if an appropriation of the street by one of these com- <«lt will be settled that the owner ble as ihe property in the lots thera- of lots "have a peculiar interest in the selves." 8 Dana 294 ; Haynes v. Thorn- adjacent street which neither the local as, 7 Ind. 38; Rowen v. Portland, 8 B. nor general public can pretend to claim ^lonr. 232 : Le Clercq v. Gallipolis, 7 —a private right in the nature of an Ohio 217; Cincinnati v. ^Vhite, 6 Peters incorporeal hereditament legally at- 431, cited in Elizabeth, etc., R. Co. v. tached to their contiguous grounds— an Combs, 10 Bush 382, 19 Am. Rep. 67. incidental title to certain facilities and «• Chesapeake, etc.. Tel. Co. v. Mack- franchises assured to them by contract enzie, 74 Md. 80, 28 Am. St. Rep. 219, and by law," and which are as inviola- 21 Atl. 5.")9. <^ 119] COXSTRUCTION AND MAINTENANCE. 113 panics, even under legislative and municipal sanction, unreasonably abridges the right to use the streets as a means of ingress and egress, or otherwise, and he is thereby deprived of his right without compen- sation, an action will lie against such companies, guilty of usurping such unreasonable and exclusive use, for the recovery of such imme- diate and direct damages as he may have suffered.'" § 118. Effect of legislative grant — not a nuisance. Although the posts and wires composing a telephone line are an additional burden on the street, for which compensation must be made to the owner of the abutting property, yet concurrent legislative and municipal authority, granted to a telephone company to erect its poles and suspend its wires in and over the streets of a city, will protect it from being treated as a trespasser and its works from being declared a nuisance, if they are so constructed as not to obstruct or interfere with the use of the streets by the public or the o^vner's right of in- gi'ces or egrecs to and from his abutting property.'^ ^ § 119. Amount of compensation to abutter. It being conceded that the construction of a telephone line upon a street constitutes a new use thereof, and thereby and thereon im- posing an additional burden ; and it following that the abutting lot- owner may be entitled to an additional compensation for such use; and for damages for any material injury to the easement or access and passage over the streets, the question vs^hich necessarily follows is. How much should he recover from these companies for the use of the easement, and how much should he be allowed as damages for injuries to his right in same ? "The true measure of damages is not what a particular individual would be willing to ■"Elizabeth, etc., E. Co. v. Combs, 10 A. 77on, 19 Am. St. Eep. 008; Postal Bush 382. 19 Am. Rep. 67; Schurmeir Tol. Cable Co. v. Norfolk, etc., R. Co., V. St. Paul, etc., R. Co., 10 Minn. 82, 88 Va. 920, 14 S. E. 820; Eels v. Amer- 88 Am. l>c. 50; Cooley Const. Limit., ican Tel., etc., Co., 65 Hun (N. Y.) 556. 516, affirmed 143 N. Y. 133; Southern •Mvostor V. West. U. Tel. Co., 108 Bell Tel. Co. v. Francis, 109 Ala. 224, Fed. 926; \Yest. V. Tel. Co. v. Wil- 19 So. 1, 55 Am. St. Eep. 930, 31 L. liams, 86 Va. 696, 11 S. E. 109, 6 L. R E. A. 193 T. & T.— 8 114: TELEGRAPH AND TELEPHONE COMPANIES. [§ 110 charge for having the poles put up or remain, nor the amount some other person might consider the rental value w&s depreciated for the purposes of his business ; but where the land of plaintiff is not taken nor his soil actually invaded, the measure of damages, as ad- judged in many cases is, either: (1) The extent to which the rental or usable value of the particular property has been diminished by the trespass or injury complained off^ or, (2) the difference in the value of the property before the construction of the poles and its value afterwards, if the depreciation in value has been caused by the erection and maintenance of the poles.'^^ Where there is nothing to show that any special damage has been suffered, the principle seems to be established by many respectable authorities, that the abutter is entitled to recover such compensation as the use of the ground was worth during the time and for the purpose it was occupiedJ^ § 120. Damages to abutting owners — amount. The fact that the abutting lotowner is compensated for the new use of the street for telephone lines will not prevent him from re- covering damages for any material injury to the easement of access and passage over the street. As, for instance, if the company should erect its poles and string its wires in the premises of the abutter so as to interfere with the free access to his property or obstruct the air and light to same, he would be entitled to damages for such in- jury, notwithstanding the fact that he has already been compensated for the additional servitude of the street. And he may be allowed punitory damages when there is an element of wanton or malicious motive, or such reckless disregard of his rights by the company, in the commission of the injury — and all repetitions thereof — as he would be entitled to.'^^ If such are not the facts in the case, he would « Baltimore, etc., R. Co. v. Boyd, 67 -- Ashby v. White, 2 Ld. Rayne 955 ; Md. 32, 10 Atl. 815, 1 Am. St. Rep. Millor v. Spaterman, 1 Saund., note 2, 362; Wood v. State, 66 Md. 61, 5 Atl. p. 346a; Taylor v. Hcrniker, 12 Ad. & 476. K. 488; Dixon v. Clow, 24 Wend. 188; " Shepherd v. Baltimore, etc., R. Baltimore, etc., R. Co. v. Boyd, 67 Md. Co., 130 U. S. 426, 9 S. Ct. Rep. 598. 32, 10 Atl. 815, 1 Am. St. Rep. 362 : '* Baltimore, etc., R. Co. v. Boyd, 67 Woods v. State, 66 Md. 61, 5 Atl. 476. Md. 32, 1 Am. St. Rep. 362, 10 Atl. 815. § 121] COXSTRUCTIOX AND MAINTENANCE. 115 only be entitled to nominal damages ; and, the measure of which, where punitory or exemplary damages are not claimed, is the differ- ence in the value of the property before the construction of the lines and its value afterwards, if the depreciation in value has been caused by the erection of the poles.''' It is not necessary that the abutting owner should give affirmative proof of his having sustained any par- ticular amount of damages ;^^ for any unauthorized entry upon an- other's land is a trespass, and whether the owner suffers substantial injury or not, he at least sustains a legal injury, which entitles him to some damages, though they may be very small under some cir- cumstances.'^^ § 121. Remedies of adjoining lot-owner. When a telephone company constructs its lines albng and upon a street without first having obtained the consent of the legislative au- thority, the occupation thereof becomes unlawful and amounts to a public nuisance, and the abutter may enjoin the company or bring an action of damages against it; but in determining the nature of the case to be brought, the circumstances in the particular cases must first be considered. The remedy may be by an action of ejectment, an injunction, or by an action for damages. If the fee to the land on which the easement is laid out is in the abutting owner, and the company constructs a line of wires thereon without his consent or without compensating him therefor, he may have the same removed, in case they have not progressed too far in the construction of same, by an action of ejectment."^ The state only acquires a right of pas- '° Shepherd V. Baltimore, etc., R. Co., Am. Dec. 265; Atwood v. Fricat. 17 130 U. S. 426, 9 S. Ct. Rep. 598; Chesa- Cal. 37, 76 Am. Dec. 567. peake, etc., R. Co. v. Mackenzie, 74 '«24 Wend. 188; Ashley v. White, 2 Md. 36, 28 Am. St. Rep. 227, 21 Atl. Ld. Rayme 955: Miller v. Spaterman. 690; Erie Tel. Co. v. Kennedy, 80 Tex. 1 Saund., note 2, p. 346a; Taylor v. 71, see Postal Tel. Cable Co. v. Bruen, Henriker, 12 Ad. & E. 488: Dixon v. 39 X. Y. Supp. 220. where the erection Clow, 24 Wend. 188; Baltimore, etc.. of poles one hundred and fifty feet R. Co. v. Boyd, 1 Am. St. Rep. 365. apart -was held to give a right to nomi- '" Postal Cable Tel. Co. v. Eaton, 170 nal damages. 111. 513. 40 X. E. 365, 62 Am. St. Rep. ■^McConnel v. Kibbs. 33 111. 175, 85 390, 39 L. R. A. 722; Board of Trade Tel. Co. V. Barnett, 107 111. 507, 47 116 TELEGRAPH AND TELEPHONE COMPANIES, [§ 121 sage to the easement; and all tlic other rights and interest to the soil, except such easement, remain in the abutting owner. Any use to which the easement might be placed other than such as would fall under the right of passage, w^ould be an additional servitude to the land for w-hich additional compensation would have to be made, and it is pretty generally held that a telephone line upon the easement is an additional burden and one not contemplated at the time the grant was given ; so this additional burden, as any other trespass, could be removed by an action of ejectment, ''I see no ground," as was ably observed by Lord Mansfield, ''why the owner of the soil may not bring ejectment as well as trespass, . . , 'Tis true, he must recover the land subject to the way; but surely he ought to have i special remedy to recover the land itself, notwithstanding its being subject to an easement upon it." ^^ As the public only acquires an easement of travel over the land, the abutting owner thereof has the same remedies to remove all intruders, trespassers and obstructions therefrom as he would have should they be on his private property. When any of these injuries are on any of his private property with- out his consent, he might have the same removed by ejectment ; so the same remedy could be exercised when they had encroached upon his other property upon which an easement had been laid out, and this, too, notwithstanding the fact that the same was granted before he ac- quired the title to the abutting property, ^^ It has been held that an action of injunction will lie,^^ but in either instance, the abutting owner might be estopped to prosecute such actions where he had ap- Am. Rep. 453; West. U. Tel. Co. v. Co. v. Rodel, 87 Ind. 128, 4G Am. Rep. Williams, 86 Va. 696, 19 Am. St. Rep. 164. See, also, Robert v. Sadler, 104 008, 11 S. E. 109, 6 t. R. A. 77n. X. Y. 229, 58 Am. Rep. 498, and notes Purchaser succeeds to right of vendor? thereunder. Postal Tel. Cable Co. v. Eaton, supra. "Postal Tel. Cable Co. v. Eaton, 170 •* Goodtitle v. Alker, 1 Burr. 133, 111. 573, 62 Am. St. Rep. 390, 49 N. E. Cooper V. Smith, 9 S. & R. 26, 11 Am. 365, 39 L. R. A. 722. Dec. G58; Alden v. Murdock, 13 Mass. "^Injunction has been held to be the 256; Bissell v. N. Y. C. R. Co., 23 N. proper remedy in such a case. Gray Y. 61; Carpenter v. Oswego, etc., R. v. N. Y. St. Tel. Co., 41 Misc. (N. Y.) Co., 21 X. Y. 655; Jersey City v. Fitz- 108. See Donovan v. Allert, 11 N. Dak. Patrick, 30 N. J. Eq. 97; Perry v. New 289, 91 X. W. 441, 95 Am. St. Rep. Orleans,etc.,R. Co., 55Ala. 413, 28 Am. 720, 58 L. R. A. 775; Denver v. U. S. Rep. 740, all cited in Terre Haute, etc., Tel. Co., 10 Ohio Dec. 273. § 123] coi\sti;l( rio.x axd .\i atxtenaxce. - 117 parently acquiesced in the construction of the lines.^^ The company M-ou'ld be allowed an opportunity to perfect its rifiht.s liv instituting condemnation proceedings. § 122. Same continued — ignorance of rights. The same state of facts will exist notwithstanding- the fact that the company erects its poles and stretches wires along the streets with the belief that it had the legal right so to do, but without obtaining the consent of the abutting owner or seeking to acquire his rights by negotiation or condemnation proceedings.**^ Ignorantia juris nemi- nem excusat, is an old maxim and is founded on the presumption that every one who is competent to act for himself is boiuid to know the laM'.^^ It is presumed that every company has investigated the law applicable to its right in constructing a line of wires upon the easement, and if it has not and afterwards learns that it has no right to make such construetidn. tlic conqiany will be held liable just the same. § 123. Same continued — action for damages. Another remedy which an abutting owner may maintain against a company for constructing, Avithout his consent, a line of wires upon the easement, is by an action of damages. This method is generally exercised when the abutter's easement of access is interfered with. In these actions it is no defense that the company has obtained legis- lative authority, for it is generally in such cases that these actions are brought. Damages would be the proper action where the company has been in operation for some time ; as the abutting owner would be estopped to enjoin where the company had gone to considerable ex- pense in erecting the line, and the abutter has apparently acquiesce'] in the erection of same.^^ There may be exceptions to the rule where ^ Daflingcr \. Pittsburfr, etc., Ti>l. Co., « Storys Eq. Juris., § llfi. 31 Pitts. Leg. J. r. S. (Pa.) 37, 14 '"Abendioth v. Manhatton R. Co., York Les. Rec. (Pa.) 4(>: Abcnrlroth 122 X. Y. 1, 19 Am. St. Rep. 461. 11 V. Manhatton R. Co.. 122 N. Y. 1, 10 L. H. A. (i.'Un ; Brownson v. Albion Tel. Am. St. Rep. 401, 1 L. R. A. (]34n. Co.. !)3 .V. W. 201. 60 L. R. A. 429: "Abendroth V.Manhattan R. Co., 122 :sraN\voll v. Central Dist. Tel. Co.. 5) N. Y. 1. 19 Am. St. Rep. MW . 11 L. R. W. Va. 121, 41 S. K. 12.'): Omaha r. A. 634n. Flood, 57 Neb. 124. 77 X. \V. 379. lis , TELEGRAPH AND TELEPHONE COMPANIES. [<§> 123 the maintaining of the line would become too obnoxious to the com- forts of life or the enjoyment of his rights. For instance, cases may happen where the wires become so numerous as that the bulk of them obstruct the abutting owner's free access to air and light. In such cases he could recover damages for such injuiy and also enjoin the company from using the easement any longer for such use. Repeat- ing again the law — the construction of a telephone line upon an ease- ment without legislative consent becomes a public nuisance and may be abated like any other nuisance ; yet if the company has expended much capital in its construction and is nearing completion, the abut- ter would be estopped to enjoin further work on same, on the ground of apparent acquiescense, but this would not be any bar to his recov- ing compensation for the additional use to which the easement was put, and also damages for any injury to his soil — such as the digging of holes for posts, trimming trees,^^ cutting up hedges and throwing down fences, and also for any obstruction to the easement of access to his property. Should the use to which the company puts the ease- ment be such as would materially, permanently and continuously in- jure the premises and his life and home comforts, the proper remedy would be by an action of injunction.^* § 124. Further considered — unauthorized use of street — may be enjoined. Where there is an unauthorized use of a street either by the com- pany not complying with the ordinance, or by utter lack of authority to use same, it may be enjoined from carrying on further business.*'^ The legislature or the municipality may require the company to con- struct its poles and wires in a certain prescribed manner, and this it " Dailcy V. State, 51 Ohio St. 348, 37 «'^ Mut. U. Tel. Co. v. Chicago, 16 Fed. N. E. 710, 46 Am. St. Rep. 578, 24 L. 309; People v. Metropolitan Tel., etc., R. A. 724. Co., 31 Hun (N. Y.) 596; Utica v. '^Hay V. Columbiana County Tel. Utica Tel. Co., 24 N. Y. App. Div. 361; Co., 12 Ohio Cir. Dec. 167, 21 Ohio Cir. Norshfield v. Wisconsin Tel. Co., 102 Ct. 480; Broome v. N. Y., etc., Tel. Co., Wis. 604, 78 N. W. 735. See, also, 42 N. J. Eq. 141, 7 Atl. 851; Russ v. Reg. v. United Kingdom Electric Tel. Penn. Tel. Co., 15 Pa. Co. Ct., 226, 3 Co., 2 B. & S. 648, note 110 E. C. L. Pa. Dist. 654. 048, note 31 L. J. M. C. 166. § 125] CONSTEUCTION AND MAINTEXANCE. IIU must do or be subject to an injunction. As for instance, it is often re- quired of these companies by ordinances, that the poles must be of such a size and a certain distance apart, or that the wires must be of a certain height.^" In some states there have been statutes passed which require all telephone companies doing business in cities above a certain population to place their wires under the surface; on fail- ure to perform any of these requirements an injunction suit may be maintained either by the city"^ or by an abutting lot owner who is affected by the unauthorized use,''- but not at the suit of a rival com- pany.^^ And the rule prevails whether the occupation of a street was never authorized or has ceased to be lawful because of the valid withdrawal of an original authority.^'* § 125. Liabilities for cutting trees overhanging sidewalks. A telephone company is liable for trespassing upon the premises of an abutting owner for the purpose of cutting or trimming trees overhanging the sidewalk. It very often becomes necessary in the construction of telephone lines in cities to cut and trim valuable and ornamental trees overhanging the sidewalk, in order to suspend the wires from post to post ; in doing so, the owner thereof usually raises serious objections. The companies, then, are face to face with this question of right and power. They are generally given the power, -along with their license, to cut and trim such overhanging trees as may be an obstruction to the erection of their wires, but when this grant is given them, it is not understood that the owners are to be deprived of their property without the company first making or tend- ering them due compensation for their property; or otherwise his »«]f the company be authorized to 41 S. E. 125. Soo. also, Donovan v. use poles of such size and height as is Allcrt, UN. Dak. 289, 91 N. W. 41. reasonably necessary, and uses poles of 95 Am. St. Rep. 720, 58 L. R. A. 775. greater size or height, the authority »* Chicago Tel. Co. v. Northwestern granted to it is no protection. People Tel. Co., 199 111. 324, 65 N. E. 329, af- V. :Metropolitan Tel., etc., Co., 31 Hun firming 100 111. App. 57. (N. Y.) 590. '>*]\rut. U. Tel. Co. v. Chicago, 16 Fed. "See cases in note 90 for reference. 309; American Rapid Tel. Co. v. Hess, »» Irwin V. Great Southern Tel. Co.. 125 N. \\ 041. 21 Am. St. Rep. 764, 37 La. Ann. 03; Maxwell v. Central 13 L. R. A. 454n. Dist.. etc.. T.l. Co.. .il \V. Va. 121. 120 TELEGRAPH AA'D TELEPHONE COMPANIES. [§ 12'> property would "be used for public purposes \vithout compensation, which would be in violation of the constitution."'' These companies must pay to the owners of the trees such damages as they would be entitled to. While the gravamen of an action, brought for the pur- ]iose of recovering damages for the cutting of overhanging trees on the sidewallv, is the trespass upon the premises of the abutting o^vner, this could, however, be avoided by providing means — as by step lad- ders or other means — to reach the trees or limbs from the street,^" yet then they would nevertheless be liable if the trees were injured to any extent. For instance, if it were necessary to cut the trees in order to lay the telephone line, this would not warrant cutting them so as to leave in the foilage an open space from twenty-five to forty feet in circumference for the mere purpose of passing through it an almost imperceptible wire.^" This, however, would not be the case if the trees had been declared a nuisance and the owners thereof had been authorized to move same. A municipality may declare them a nuisance Avhen they obstruct travel along the streets or when the limbs prevent the sun from drying the sidewalks and thereby creating constant dampness and causing decay ; but a telephone company could not abate the nuisance on its own accord, § 126. Same continued — punitory damages. The company may commit the trespass in such a way as would en- title the lotowner to punitory or exemplary damages, as in the case where the trespass was wanton and malicious, the injured party would be entitled to recover both nominal and vindictive damages. This was so held where a telephone company had authority from the city to construct a line of wires upon the streets and in making such construction attempted to cut and trim limbs on ornamental trees overhanging the sidewalk. The owners of these trees objected to their being trimmed in any manner, but in order to accomplish this work the employee stole ^ march on the lotowner by going to the premises late at night and then entering the premises and doing the *= Board of Trade Tel. Co. v. Barnett, "' Tessat v. Great Southern Tel., etc.. 107 111. 507, 47 Am. Rep. 4.53. Co., 39 La. Ann. nOCJ, 4 Am. St. Bep. *•= Memphis Bell Tel. Co. v. Ilnnt, 10 248, 3 So. 2G1. Lea. 456, 57 Am. Rep. 237. § 128] COXSTKUCTIOX AND MAINTENANX'E. 121 work.^^ In another case the employees of the company waited until the owner of the trees, who had objected to the cutting of his trees, had gone off on a visit before the trimming was done.*'''^ The court granted damages to these injured parties for malicious and willful trespass of the company. It makes no difference if the company's agent in charge of the construction was absent at the time the trespass was committed, the company will still he liable.^'^'^ § 127. Willful intent — question for jury. Punitive damages are imposed on a corporation as a means of pun- ishment for its wrongful acts, and in order for a corporation to be guilty of a criminal wrong, it must have had an intent to commit such wrong. Applying the rule to the present discussion, if the employees of a telegTaph or telephone company in good faith honestly thought from the circumstances that they had the right to cut certain trees on the premises of another, they cannot, within the meaning of the law. to be held to be guilty of a crime, although they had no right or lawful authority to cut such trees ; however, if they acted heedlessly, reck- lessly and carelessly, without honestly believing that they had the right to do so they or rather the company for which they are working, will be liable iA punitory damag-es, yet it is a question of fact to be decided by a jury as to whether or not they acted in such a way as to make the company liable for such damages.-"'^ § 128. Trees on the sidewalk. There seems to be a difference in the effect in the trimming or cutting of trees which are growing in front of the premises of the abutter on the sidewalk, or between the sidewallc and the street, and those growing on the premises of the abutter but hanging over the sidewalk. The sidewalk and streets are for the benefit of public travel, and all obstructions thereon may be declared a nuisance and removed by abatement. In most cities and to\^Tls, there may be seen trees growing upon or on the outer edge of the sidewalk — the same having been planted either by the city or the abutter or vendor, and '« Memphis Bell Tel. Co. v. Hunt. 10 ""Clay v. Postal Tel. Co., U So. 15S. Lea. 456, 57 Am. Rep. 237. "" Dailet v. State. 57 Ohio St. 34S. "^Tessat v. Great Southern,, etc., Tel. 40 Am. St. Rep. 578, 24 L. R. A. 724. Co., 39 La. Ann. OnO, 3 So. 261, 4 Am. 49 X. E. 79. St. Rep. 248. 122 TELEGRAPH AXD TELEPHONE COMPAKIES. [<^ 128 for the purpose of shade, ornament and health. The question may be asked : What interest has the abutter in these trees ? His interest in the trees, whether they were planted by him on the sidewalk, or acquired by devolution of title to the adjacent property, is a qualified and limited ownership, subordinate to the public right to safe and convenient passage, and to the rights, powers and duties of the gov- erning municipal body in the protection, promotion and establishing of every public use in and upon the streets in a city.^^- A question which might necessarily f ollow' is this : Has the city such control over the streets as would enable it to grant to a telephone company the power to cut or trim such trees without compensating the abut- ter ? If the fee to the streets is in the city, it could grant this power, but should the fee be in the abutter, the city would have no authority, unless it were necessary and beneficial to the latter to grant such a power. The abutter only grants to the public the right of easement and reserves to himself all other interest in the soil. So, it follows, that he is entitled to all that grows upon the easement such as trees, and grasses, to the center of the way and also to all minerals and other substances beneath the soil; yet in making the grant to the pulic it was understood that the easement would necessarily have to be put in and maintained in a passable condition. So, also, any obstruction which would interfere with travel or the convenience thereto might be abated ; and w'here it is necessai*y to remove or trim these trees for public travel or for such secondary uses to w^hich these streets might be put, the same may be done without compensating the abutting owner. It is presumed that he was amply compensated for these at the time the grant to the street was acquired. While the telephone company would have to compensate these lot- owners for cutting and trimming these trees, yet if in connection with these companies there is another contrivance, attached to the poles of the company— as a telegraph fire-alarm wire — and the same is specially for the benefit of the city, the owner Avould not be entitled to compensation for the injury to his said trees, caused by the con- struction of this fire-alarm wire,^°" for this is a secondary use to which the streets may be put and one contemplated at the time the grant was made. «»=' Baker V. Gows Normal, 81 111. 108. ">» Southern Bell Tel., etc., Co. v. Francis, 10 So. 1. CHAPTER VIII. OVER PRIVATE PROPERTY. § 129. By consent. 130. By condemnation proceedings. 131. General rule — conditions precedent. 132. Same continued — petition — contents. 133. Same continued — name of petitioners. 134. Same continued — name of land-owners — their residence and interest in lands — several tracts or interests. 135. Same continued — description of route. 136. Same continued — description of poles. 137. Same continued — notice — appointment of commissioners. 138. Same continued — sworn to by officers. 139. Same continued — failure to acquire land by agreement with land-owner. 140. The interest acquired. 141. Measure of damages. § 129. By consent. Where a telephone company occupies the private property of an individual for the construction of a line of wires, there is no question but that the landowner should he compensated for the use of his land.^ There are two ways by which the company may legally ac- ' Dailey v. State, 51 Ohio St. 348, 37 St. Rep. 358. This question is decided N. E. 810, 24 L. R. A. 724, 49 Am. St. in American Telephone, etc., Co. v. Rep. 578; West. U. Tel. Co. v. Wil- Pearce, 71 ild. 535, IS Atl. 910, where liams, 86 Va. 696, 11 S. E. 106, 19 Am. it is determined that a telegraph or tel- St. Rep. 908, 8 L. R. A. 429n; Stowers ephone company is, with respect to the V. Postal Tel., etc., Co., 08 Miss. 559, rijjht to construct its lines over private 9 So. 350, 12 L. R. A. 864n, 24 Am. property, just as much subject to the St. Rep. 290; Board of Trade Tel. Co. constitutional prohibition against tak- V. Bamett, 107 111. 507, 47 Am. St. ing private property for public use Rep. 453; McCormick v. Dist. of Col- without just compensation as is a rail- umbia, 104 111. 507, 54 Am. St. Rep. way or any other corporation clothed 290; Peace v. Drew, 136 Mass. 75, 49 with the power of taking private prop- Am. Rep. 14; Postal Tel. Cable Co. v. erty for public use; and the averment Eaton, 170 111. 513, 49 K E. 365. 62 that such company is proceeding, or Am. St. Rep. 390. 39 L. R. A. 722; threatens to proceed, to construct its Magee v. Overshiner, 150 Ind. 127, 49 line of poles or wires on and over tho N. E. 951, 40 I.. R. A. 370. 05 Am. complainant's land without his leave or (123) 124 TELEGEAPII AND TELEPHONE COMPANIES. [^ 129 quire the right to occupy the lands of the individual: one is by an agreement entered into with the owner of the land, or one who has the right to manage and control it ; and, the other is by a condemna- tion proceeding instituted by the company. With a few exceptions, a landowner has the absolute power of making such disposition of his land as he may see fit. He may sell, rent, lease, mortgage, or make a grant or gift of it to any one, by any kind of a contract or agreement which he may, in good faith voluntarily make. Therefore, it necessarily follows, that he may make any kind of an agreement with a telephone company which the latter may accept for the con- struction of a line of wires upon and across his private property. He may sell, or give it a right of way; and in either instance, the parties would be controlled by the contract or agreement made be- tween them : and, in case the right is acquired by the means of pur- chase, the consideration for which, may be in money value ; or, it may be for the right to use the telephone for a period of time ; or, for other conveniences which the landowner may receive by reason of the line being on his premises. There are some inconveniences and liabilities attached to a company, where it enters upon the premises of an individual's property, by a mere parol license, in that the lic- ense, is revocable at will f and a transfer of the land, is an implied revocation of it.^ Poles and wires erected, under an agreement with a landowner, are subject to the lien of a prior mortgage, which in- cluded after acquired property.'* § 130. By condemnation proceedings. If an agreement with the landowner cannot be obtained, resort must be had to the local statutes, authorizing the right to condemna- licenso, and without paying or tender- Southern Telegraph, etc., Co.. 39 La. ing him compensation for the use of his Ann. 996, 3 So. 261, 4 Am. St. Eep. land for this pui-pose, is sufficient to 248: Memphis Bell Tel. Co. v. Hunt, entitle him to an injunction. Under 16 Lea 456, 57 Am. Rep. 237. a license from a municipal corporation ' Winter v. New York Tel. Co., 51 N. for the erection of a telephone line, or -T- L. 83, 16 Atl. 188. a fire-alarm telegraph, there is no au- "Andrews v. Delhi, etc., Tel. Co., 73 thority to enter private property and ^- ^- S"PP- H-"- cut off the limbs of trees, although ' ^rourmonth County Electric Co. v. they project over the line of the side- Central K. Co., 54 Alt. 140. walk on Ihe street: Tissot v. Great § 131] ovj:r riMVATi: i'Ijopektv. 125 tion/'^ In almost all of the states, statutes exist providing for the acquisition of private property for public use on due compensation being given or tendered ; and, these statutes embrace, either expressly or by implication, the purposes of telegraph or telephone companies. The power to exercise the right of eminent domain is sovereign with- in itself and exists without a constitutional provision to that effect ; and the same may be delegated to any corporation exercising a pub- lic f unction. *"' It has been held that the transmission of intelligence i)y electricity is a business of public character, to be exercised under the public control, in the same manner as the transportation of goods or passengers by railroad.'' Every citizen holds his land subject to this right ;but it must be clearly understood that the easement should be acquired for public use; and should the company, attempting to exercise the right, construct the line for strictly a private use, it may be enjoined by the landowner; or, otherwise, it will be liable for an unlawful trespass. The owner must also be compensated, for the easement, in accordance with the damages sustained. § 131. General rule — conditions precedent. The general rule applicable in this connection, with respect to the conditions precedent to the right to condemn, the nature of the right and the procedure to be adopted are those governing condemnations generally, subject only to the modification which the inherent char- acter of the structure under consideration demands ? ^ And, while this subject could be more appropriately treated under the title of emi- '- Louisville N. 0. & T. R. Co. v. Pos- Co. v. Alexandria, etc., U. R. Co.. 7-5 tal Tel. Co., 10 So. 74. Va. 780. ■Swan V. Williams, 2 Mich. 427; ''Xew Orleans M. & T. R. Co. v. Warren v. First Div. St. Paul, etc., R. Southern, etc., Tel. Co., 53 Ala. 211; Co., 18 Minn. 384; Weir v. St. Paul, Pierce v. Drew, 136 Mass. 75, 49 Am. etc., R. Co., 18 Minn. 155; Lisse v. St. Rep. 7; Turnpike Co. v. News Co., 43 Louis, etc., R. Co., 2 Mo. App. 155; Ash N. J. L. 381. V. Cummings, 50 X. H. 591; Tinsman * Postal Tel. Cable Co. v. Oregon V. Belvidere Dec. R. Co., 26 N. J. L. Short Line R. Co., 104 Fed. 623; Lack- 148, 69 Am. Dec. 565; Mattie Bloom- ie v. Mut. U. Tel. Co., 103 111. 401; Pos- field, etc.. Gas Light Co. v. Richardson. tal Tel. Cable Co. v. Morgan's Louisi- 63 Barb. 437; Bloodgood v. Mohawk, ana R., etc., Co., 49 La. Ann. 58. 21 etc., R. Co., 18 Wend. (N. Y.) 9, 31 So. 183; Louisville, etc., R. Co. v. Pos- Am. Dec. 313; Alexandria, etc., F. R. tal Tel. Cable Co., 68 .Miss. 806, 10 126 TEIEGKAPH AND TELEPHONE COMPANIES. [§ 131 nent domain, where it should be more thoroughly discussed, we shall nevertheless comment on the matter to some extent here, where it will be considered specifically with respect to the rights possessed by telegraph and telephone companies. Where these statutes have dele- gated to telephone companies, the authority to exercise the power of eminent domain, they require of such companies certain precedent conditions before the right can be legally exercised ; and it will be our purpose to relate these conditions. § 132. Same continued — petition — contents. One of the conditions precedent to be performed by a telephone company, before it can legally exercise the power of eminent domain is, that a petition be filed with the court of the county in or through which the line is to be constructed in which the location of the land is specified ; setting forth the names of the petitioners, their residence and authority for exercising the power; the names of the owners of the lands over which the easement is sought, their residence and the interest which they have to the lands; a description of the location, termini and route of the land line, and the description of the land and that part which the line is to traverse ; it should give the size of the poles to be used, their height, length of cross-arms and distance apart; it should ask that a notice be given and commissioners be ap- pointed to assess the amount of damages to be awarded for such con- demnation ; and that the same be sworn to by the petitioners, acting in the capacity of its corporate authority. There might be mentioned other conditions to be alleged in the petition, before the power could be exercised ; as for instance, that the company has been unsuccessful in an attempt to acquire the easement by an agreement with the land- owner ; that the company has been legally incorporated ; and, that it is the most convenient and accessible land to be had by the company for the right of way. It must be in writing, and state that the tak- ing is necessary for public use;. but it is not essential in every in- So. 74; Broome v. New York, etc., Tel. J. L. 490, 57 Atl. 448; NicoU v. oSTew Co., 49 N. .J. L. 624, 9 Atl. 754; Duke York, etc., Tel. Co., 62 N. J. L. 733. V. Central New Jersey Tel. Co., 53 N. 42 Atl. 583, 72 Am. St. Rep. 666; Pos- J. L. 341, 11 L. R. A. 664, 21 Atl. 460; tal Tel. Cable Co. v. Norfolk, etc., E. Coles V. Midland Tel., etc., Co., 67, N. Co., 87 Vt. 349, 12 S. E. 613. <^ 134] OVKR PRIVATE PROPKUTY. 127 Stance to make all of such allegations, as the statute may not require such ; and in fact the statutes of each state should be consulted before filing such petitions since there are difForent conditions required in the different states. While the petition is one of the conditions pre- cedent to a company becoming empowered with the authority of con- demnincr the lands for easements each of the conditions stated there- in is as essential to be showTi, before the right can be exercised as the petition itself. § 133. Same continued — name of petitioners. It is very essential that the company be incorporated in order that it may have parties appointed who may have the authority to make a petition for such condemnation proceedings. It, therefore, follows that an unincorporated company, or one organized by individuals, for strictly private purposes, could not exercise the power of eminent domain. We presume it is hardly necessary to discuss this require- ment here, for this is a condition to be performed by all bodies aggre- gate before they can do any corporate acts ; yet it is a condition pre- cedent, nevertheless, and one to be performed before there can be parties to such a petition. The names and residence of such petition- ers should be given in such a manner as to show that they are acting for and under the authority of the telephone company seeking the right of way. In other words, it must be clearly shown that it is the telephone company which is seeking through these authorized re- presentatives the right to exercise the power of eminent domain. § 134. Same continued — name of land-owners — their residence and interest in lands — several tracts or interests. Another condition to be respected by the company before the power of eminent domain can be exercised is, that the names of the land owners, their residence and the interest which they claim to the land shall be given in the petition. The court should have some know ledge of these facts in order that it may know the party to whom no tice should be given of the condemnation proceedings; and to whom damages should be awarded. In man}' instances the land through which the right of way is sought is held in trust for another: or is managed and under the control of a 2:uardian, executor or administra- 128 TELEGEAPir AIS^D TELEPIIOXE COMPANIES. [^ 134 tor. When such is the case, the name of the trustee, guardian, exe- cutor or administrator should be given in the petition, in his fiduciary capacity. It often occurs in the construction of a line of wire that tlie land over which the right of way is sought belongs to different owners who have common interest therein; or it is in several pieces and belonging to the same owner; the question which presents itself is, can this land, in such instances, be condemned in one proceeding ? It has been held that the same can be done,^ and we are inclined to thinlc that this is a good holding ; because, much trouble and expense • which would otherwise be incurred, can be avoided by bringing sev- eral suits in one. While the duties of the commissioners, in ascer- taining the amount of damages to which each owner would be entitled or the amount of damages incurred on each parcel of land, would be the same; yet the result of the finding, or the amount of damages assessed might be quite different, so it would be an easy matter for them to arrive at a proper and correct result in one proceeding. There- fore, where possible, this should be done. § 135. Same continued — description of route. Another essential part of the petition is, that the route of the line should be sufficiently described. As in all other proceedings, to con- demn private property for public use, a clear and distinct description of the land over which the right of way is to be laid out should be de- scribed so clearly and accurately as to give any one a sufficient know- ledge as to its location. The beginning, ending and intermediate points of the line must be given. The statutes generally provide the ]iianner in which the description of the route should be given; and when they do, they must be closely complied with and contain such a description of the land as that its metes and bounds may be ascer- tained from the public records. ^'^ • Duke V. Central New Jersey Tel. on the inap in small circles of black Co., 35 Am. & Eng Corp. Cas. 1. ink, numbered in red ink from 1 to '*Anies V. Union County, 27 Am. & 27, which was the total number of Eng. Corp. Cas. 60. In a certain case poles to be erected. The distances be- a map containing the description of tween said poles were indicated by fig- the route was filed with the petition. ures in black ink between the circles. The location of each pole was indicated The distance of the poles from the fence § 137] OVER PEIVATE PROPERTY. 129 § 136. Same continued — description of poles. The petition should also give the size of the poles to be used, their height, length of cross-arms, and distance apart. A map or drawing showing the general course of the line and the distance apart the poles are located, should be given to aid in the description of the route and when such is filed with the petition it becomes, a part of same ; provided sufficient meaning is given to show that it is a part of the petition. ^^ The object in giving a clear description of the route and the size and height of the poles and their distance apart and the length of the cross-arms is, to provide a means by which the amount of damages to be awarded may be assessed. The greater the space the line occupies the greater should be the damages awarded. In many instances, where these companies construct line of wires across priv- ate property, the owner thereof is actually deprived of only such lands as that occupied by the poles; and when this is the case, the damages would seem to be small ; and yet, the fact must not be lost sight of, that the company still retains an easement to the land, over which the wires are strung ; but, it is held principally for the purpose of entering thereon to maintain and make repairs on the lines. If the cross-arms arc near the surface and heavily strung with wires, the landowner would be deprived of more of his land, and of course he would be entitled to a greater compensation. § 137. Same continued — notice — appointment of commissioners. The petition should pray for notice to be given to the owner of the land, over which the easement is sought; or, to the party who has this in charge, and to those who have any interest therein, in order that they may appear in court to contest the petition, or to see that proper steps have been pursued for condemning the land ; or to con- test the results of the commissioners. The same notice is required to be given in a case of this kind as that required in all other on the soutlierlj' side of the highway highway. It was held that the descrip- was indicated hy figures in black ink tion conformed to all the requirements: beside each circle. The distance of the Duko v. Xcw Jersey Tel. Co., 35 Am. poles from the fence on the northerly & Eng. Corp. Cas. 1. side of the highway was indicated by "Duke v. New Jersey Tel. Co.. .S.") figures in or about the center of the Am. & Eng. Corp. Cas. 1. T. Si T.— 9 1'30 TELEGEAPH AXD TELEPHONE COMPANIES. [§ 137 chancery or equity court proceedings. The petition also should pray that a commission be appointed by the court, whose du- ties shall be to investigate the route and determine the amount of damages to be awarded ; but, in order to be better posted with respect to the duties of these commissioners, it would be well for the reader to consult the statutes of his state, as their duties are regulated thereby. § 138. Same continued — sworn to by officers. Most of the statutes provide that the petition should be sworn to by some one having authority to act for the corporation. In the or- ganization of all corporations, certain corporate duties are to be per- formed by oflScers empowered to do such acts. It is generally provid- ed in the articles of incorporation that certain officers, such as the board of directors or the president or attorney, shall have the power to bring suit for the company; and when this is the case, and it is necessary for the petition to be sworn to, only such officers or parties can swear to the petition. The form of the signature would be in tlie name of the corporation, by said officers or attorney. § 139. Same continued — failure to acquire land by agreement with land-owner. Many of the statutes make it incumbent upon the company to first make an attempt to acquire the right of way by an agreement with the landowner, before they resort to a condemnation proceeding. The object of such a provision is to avoid litigation, and to expedite the construction of the line. The landowner and the company might, and generally do, arrive at a better understanding by these mutual agree- ments than they would under a condemnation proceeding; so, to re- quire the company to first make an attempt to acquire the right of way by these agreements would often avoid endless and constant ex- pense and needless litigation. Wliere statutes require these steps, it is necessary that the petition should allege the fact that an unsuc- cessful attempt had been made to acquire the right of way by an agreement witli the landowner, or the party having the control over the land and the person who would be a necessary party in a con- demnation proceeding. <§> 140] OVER PRIVATE PROPERTY. 131 § 140. The interest acquired. When these companies construct their line of wires upon the prop- erty of private persons, they do not acquire a fee to the land, but only an easement to the right of way: the landowner retains the right to use the land for any purpose he may see fit; provided, the same does not conflict with or defeat the rights of these companies.^- It is the general rule that where these easements are over other rights of way — as railroad rights of way — the company acquires no interest to the land between the poles and that over which its wires are stretched, more than to go thereon for the purpose of maintaining and repair- ing the line;^^ the owners of the first original easement may use this space for any purpose, they may see fit. We see no reason why the same rule may not be applied to companies whose lines are across pri- vate property. It is true that the o^^mer of the land should not use this strip of land, in a manner that would obstruct its use, or prevent the employees of the company from entering thereon, for the purpose of the repairing and maintaining the line. He may cultivate the soil, or use it for any other purpose which would not interfere with the use of the wires ; but should he cultivate or use the land for other pur- poses, it is done with the understanding that the company's employees may go thereon for the purpose of maintaining the lines, without being giiilty of trespass. Of course these employees could not enter upon and trample over any space of land they may see fit; but the width of this space should be reasonable. ^^ The lando^vncr is not un- "The statute does not designate the Colorado Postal Tel. Co., 30 Colo. 133, width of the strip of land that may where it was further held that a strip be condemned for telegraph purposes, of land half a rod in width was not too but only authorizes such companies to much, and that the landowner wa'' not acquire such an amount of land as may bound to fence his land from this strip. be necessary and where only one line " St. Louis, etc., R. Co. v. Postal Tel. of poles is specified in the petition, Co., 173 ill. 508, 51 N. E. 382; Chicago, and whore the evidence does not show etc., R. Co. v. Cliicago, 149 111. 457, 37 that half a rod in width is an unrea- K E. 78, and Id., 166 U. S. 226, 17 sonable amount of land, the judgment Sup. Ct. 581 ; Mobile, etc.. R. Co. v. condemning that much of the land will Postal Tel. Cable Co., 26 So. 370. 76 be sustained, and will be construed Miss. 731, 45 L. R. A. 223. to authorize the erection of but one set '* Duke v. New Jersey Tel. Co., 35 of poles. Lockie v. Mutual Union Tel. Am. & Eng. Corp. Cas. 1. Co., 103 111. 401 ; Union Pac. R. Co. v. 132 TELEGEAPH AND TELEPHONE COMPANIES, \_^ 140 der any obligation to keep up or protect this strip ; so, where he abandons it, or leaves it unused, or uncultivated, the company can look to him for no protection over it. If it deteriorates in value, or becomes worthless by his failure to keep it up, he is the loser, and the company cannot look to him for any assistance. It has been held that the landowner was not bound to fence his land from this strip, but that it may be left unused or unconnected therefrom. ^^ § 141. Measure of damages. It is generally very difficult to determine the exact amount of dam- ages which should be awarded to the land owner for the right of way for a telegraph or a telephone company. He is actually deprived of only the land which the poles occupy, and may cultivate that lying between these ; for this reason, the damages should be small. It has been held, that the landowner is entitled to compensation where the wires are merely strung across his soil; although there is no actual occupation of the land.^^ It may be questioned whether or not the courts would recognize such an injury.^" It appears to us that the injury to the soil is so slight that it would be a case for the application of the rule, de minimis lex non curat. Of course, if the wires were strung so low or near to the land as to interfere wdth the use of this space, the question would be quite different. In such instances, the landowner would be entitled to the value of the use of this space, of which he is deprived ; but as a general rule, the parties are not con- fronted with questions of this nature': as the wires are almost always strung sufficiently high above the surface of the soil as to give ample room to the owmer thereof to use the intervening space. In other words, the owner of the space between the poles and that over which the wires are strung is not deprived of its use ; then, the question is. What amount of damages would he be entitled to? The rule laid down by the courts for the measurement of damages to railroads for the construction of these lines upon their rights of way is, that the measure of damages suffered by the railroad is not the value of the '= Union Pac. Pv. Co. v. Colo. Postal '"28 Am. Law Reg. 69; Pollock on Tel. Cable Co., 30 Colo. 133; Lockie Torts, 281. V. Mut. Union Tel. Co.. 103 Til. 401. '^ Rocke v. American Tel., etc., Co., 41 X. J. Eq. 35, 2 Atl. CIS. <^ 141] OVER PRIVATE PROPERTY. 133 land embraced witliiii tlie right of way between the poles and under the wires; but the damages is the extent to which the value of the use of such space by the railroad company is diminished by the use of the same by the telcgrnph company for its purposes. ^^ This rule may be a means of ascertaining the measure of damages for the right of way of a telegraph or telephone company across private property. As for instance, the owner of the land is not to be compensated for the value of the space of land between the poles and that occupied by the said poles ; but the damages to which he should be entitled is the extent to which the value of the use of tho Innd. occupied by the poles — and the spaces between them — is diminished by the use of the same by these companies. In fact, the space between the poles is diminished ap- proximately nothing, and for which the damages should be small ; yet, on account of the maxim, nijvs cat solum,, ejus est usque ad caelum, he should be entitled to something. There is no question but that he is entitled to compensation for the use of the ground upon which the poles are erected ; this is to be regulated by the size, number of poles, and the value of the ground taken. " St. Louis, etc., R. Co. v. Postal Tel. Co., 173 111. 508, 51 N. E. 382; Chica- go, etc., R. Co. V. Chicago, 149 111. 457. 37 N. E. 78, and Id., 166 U. S. 226, 17 Siipt. Ct. 581. Again the court says: "The spaces over which the wires are strung from pole to pole are not taken by the tele- graph company. Such damage as the construction and ojjeration of the tele- graph line causes to the spaces between the poles the appellants are entitled to recover. The telegraph company does not acquire by the judgment of con- denuiation the fee to any portion of the right of way. Any construction wliich holds that it does acquire the fee is not sanctioned by the language of the act in relation to telegraph companies. The act does not confer the right to use the land condemned for any other pur- pose than for telegraph purposes. The company cannot take possession of it or use it for any other purpose than to erect telegraph poles, and to suspend wires upon them, and to maintain and repair the same. The company will liave the right to enter upon that por- tion of the right of way which is be- tween the telegraph poles and under its wires for the purpose of repairing its lines. But the telegraph company acquires no right to exclude the rail- road company from the use of the land. The ownership of the railroad company remains as it was before, ^^hi]e the tel- egi-aph company merely acquires an casement upon what it condemns for the purpose of entering thereon in or- der to erect and repair the line. St. Louis & C. R. Co. V. Postal Tel. Co. (1S9S), 173 111. 508. 51 X. E. 382. CHAPTER IX. ON RAILROAD RIGHT OF WAY. 142. Right acquired by act of Congress. 143. Additional servitude. 144. Subsequent purchaser may recover. 145. When for benefit to railroad. 146. Same continued — no additional burden. 147. Same continued — must be in good faith. 148. Same continued — not taxable. 149. Railroad companies to be compensated. 150. Right to — must first be acquired. 151. Interest acquired by telegraph companies. 152. By condemnation. 153. Exception to rule. 154. Same continued— cannot be defeated by claiming it should be on other lands. 155. Foreign telegraph companies— right to condemn. 156. Same continued — consolidation — agency. 157. Same continued — general and special law^s. 158. Must be in good faith. 159. What portion of right of way may be taken. 160. Nature of petition. 161. Same continued — necessity for taking. 162. May condemn land in several counties in one proceeding. 163. Same continued — constitutional. 164. Who may be appointed as commissioners and how. 165. Duty of commissioners. 166. Special court for. 167. The award of commissioners. 168. May have new award. 169. Same as in other condemnation proceedings. 170. Duty the company owes to the railroad company. 171. The measure of damages— extent of injury. 172. Same continued— the expense gone to— no reason. 173. Same continued — measurement — true rule. 174. Exclusive right — on railroads. 175. Contract with railroad company to that effect. 176. State legislation— no exclusive grant. 177. Act of Congress— prohiuits exclusive right. 178. Same continued— contra view— lines on same poles. 179. Municipal grants — exclusive — cannot grant. 180. Vested rights— cannot be impaired. 181. Same continued — right reserved. 182. Same continued — police power. 183. Right to extend lines. (134) § 143] ON KAILKOAU lUGlIT OF WAY. 135 § 142. Right acquired by act of Congress. By act ^ of Congress, "Any telegraph company now organized, or which may hereafter be organized under the hiws of any state of the Union, shall have the right to construct, maintain and operate lines of telegraph . . . over and along any of the military or post- roads of the United States, which have been or may hereafter be de- clared such by act of Congress, . . . provided said lines shall not be so constructed as to interfere with the travel," on such roads ; and provided also, "that, l)efore any telegraph company shall exercise any of the powers or privileges conferred by this act, such company shall file its written acceptance with the postmaster-general of the re- strictions and obligations required by this act." Congress in 1872 de- clared all the roads in the country, which are now or may hereafter be in operation, post-roads. Statutes have been enacted in most of the states, which grant to telegraph and telephone companies similar rights ; but these statutes are subordinate to said acts : ^ however, they may be resorted to for condemnation proceedings since the same is not provided for in the former acts.^ Therefore, it is seen that a part of an easement, which has already been gi'anted for a public enterprise, may afterwards be condemned for another easement Avhich is to be used for another public purpose. This act of Congress does not give these companies the right to construct a line of wires upon the right of way of a railroad company without first obtaining the consent of the railroad, or making a contract with the original landowner,* or condemning the right of way. § 143. Additional servitude. When these companies have acquired the right to construct a line of wires along and upon the right of way of a railroad company, the natural inquiry is. Whether or not it is an additional servitude to the property ; if so, who are entitled to compensation, and how much ? The general rule is, that the construction of a telegraph or telephone ' July 24, 186G. * West. U. Tel. Co. v. Ann Arbor R. ' Postal Tel. Cable Co. v. IMorgan's Co.. 00 Fed. 379 ; Postal Tel. Cable Co. Louisiana, etc., R. Co., 49 La. Ann. 58, v. Southern R. Co., 89 Fed. 190; Postal 21 So. 183. Tel. Cable Co. v. Norfolk, etc., R. Co., ^ See above note for reference. 88 Va. 920, 14 S. E. 803. 136 TELEGEAPH AXD TELEPHONE COMPANIES. [<§, 143 line, along and upon the right of way of a railroad — unless the same is constructed by the latter in good faith, and for its own benefit — is an additional burden to the easement, for which the owTier of the fee, and also, the first and original owner of the easement, shall be com- pensated.^ In many cases, the fee in the right of way remains in the original landowner, while there is merely an easement granted to the railroad which will revert to the former on the relinquishment of the easement. Therefore, Avhen this is the case, the owner of the land over which the line is to be built should always be compensated for the additional burden ; and yet it is not meant by this that the railroad is prevented from also recovering from these companies compensation for the use of the roadbed. The right of ways granted to railroad companies are similar to the license granted by an abutting street owner to the use of the land on which the street is constructed ; and as has been seen, the owner should receive additional compensation for all additional burdens placed on the street. In some instances, the railroad company acquires the fee to the easement: and, when such is the case, the land acquired in such grant becomes its private property just the same as land acquired by any individual; and it has the same interest in and can dispose of it just the same as any in- dividual. It would be unconstitutional to permit a telegraph or tele- phone company to condemn the right of way of a railroad company, when the fee was in the latter ; or to use its premises for a line of wires without first compensating the railroad company, since it would be taking private property without due compensation.® § 144. Subsequent purchaser may recover. It is not necessary that the fee in the land over which the right of way is laid out should be in the original landowner at the time the additional compensation is demanded, but a subsequent purchaser may maintain an action for damages ; ^ however, neither the original 'West. U. Tel. Co. v. American U. Southern, etc., Tel. Co., 53 Ala. 211; Tel, Co., Biss. (U, S.) 72; American Pensacola Tel. Co. v. West. U. Tel., 96 Tel., etc., Co. v. Pearce, 71 Md. 535, 28 U. S. 1. Am. St. Rep. 227, 7 L. R. A. 200n: "Southern Ry. Co. v. Southern, etc., Phillips V. Postal Tel. Cable Co., 130 Tel. Co., 46 Ga. 43, 12 Am. Rep. 585. N. Car. 513, 41 S. E. 1022, 89 Am. St. ' Philips v. Postal Tel. Cable Co., 130 Rep. 868; New Orleans, etc., R. Co. v. <§> 146] O^' EAILROAD RIGHT Ui- WAY. 137 nor subsequent owners have any right to an accounting for the rents and profits received from the telegraph company, under its contract with the railroad.® § 145. When for benefit to railroad. There is an apparent exception to the general rule that the original landowner, when the fee is in him, shall be additionally compensated for the construction of a telegi'aph line along the right of way of a railroad. Thus, he would not be entitled to further compensation if the line is constructed by the railroad, in good faith, for its own use, and when it is reasonably necessary for its own use.® A telegraph line if not indispensable to a railroad company tends so much to facil- itate its business that it has a right to build such a line and to use its right of way therefor ; and it may remove all obstructions thereon for the purpose of constructing the same. 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 indispensable to the business, that it may cut down every tree and bush on the right of way, if necessary for the most efficient use of a line built by it over and upon such right of way, just as it may dig away a hill or fill up a ravine for the sake of a water tank or a station house. ^° § 146. Same continued — no additional burden. When telegraph line is constructed by a railroad company upon its roadbed for its owti use, there is no additional servitude placed thereon for which the landowner may recover additional damages, since it is merely a legitimate development of the easement originally acquired. ^^ If the line, however, is not constructed for such a pur- X. Car. 513, 89 Am. St. Eep. 868, 41 "West. U. Tel. Co. v. Rich, 19 Kan. S. E. 1022. 517, 27 Am. Rep. 159; Southern R. Co. » Chicago, etc., R. Co v. Snyder, 95 N. v. Southern, etc., Tel. Co., 46 Ga. 43. W. 183. 12 Am. Rep. 585; St. Jas. & D. C. R. "West. U. Tel. Co. v. Rich, 19 Kan. Co. v. Drydcn, 11 Kan. 186. 517, 27 Am. Rep. 159; American Tel. '^Taggart v. New-port St. R. Co.. 16 Co. V. Pcarce, 71 Md. 535, 18 Atl. 910. R. I. 663; Hodges v. West. U. Tel. Co.. 28 Am, St. Rep. 227, 7 L. R. A. 200n : 133 N. Car. 225, 45 S. E. 572. Adams v. Louisville, etc.. R. Co., 13 So. 932. 138 TELEGRAPH A^'D TELEPHONE COMPANIES. [§ 146 pose, it will be a new servitude, putting an additional burden on the land for M'liieh the original owner, of the land would be entitled to compensation.^- Such use is presumed to have been contemplated in the original condemnation ; and the damages resulting therefrom are part of the damages included in the assessment therefor. In other words, the railroad company may use its right of way, not merely for its track, but for any other building or erection which reasonably tends to faciliate its business of transporting freight and passengers ; and, by such use, it in no manner transcends the purposes and extent of the easement, or exposes itself to any claim for additional damages to the original landowner. ^^ § 147. Same continued — must be in good faith. In order to avoid compensating the landowner again for the use of telegraph lines upon the right of way of the railroad, the same must have been constructed by the railroad, in good faith, for its own use. If it is constructed by any company other than the railroad, but the latter is to use it for the business of operating trains and is to pay the telegraph company rental for such use ; or, if it is to give the tele- graph company the compensation which the former would be entitled to receive for the use of the right of way by the latter ; or, of it enters into any kind of an agreement with the telegraph company whereby the railroad company is merely to use the wires of the former in the manipulation of the trains and other business necessary for the carry- ing out of the public and corporate duties, and not to be an owner in any manner of the lines, ^^ the owner of the fee would be entitled to additional compensation for the use of his land.^^ Should, however, '■■^ West. U. Tel. Co. v. Rich, 19 Kans. the exclusive use of the railroad, and 517, 27 Am. Rep. 159; American Tel., to connect it with all the offices along etc., Co. V. Pearce, 71 Md. 535, 18 Atl. the route. It was held that this con- 910, 28 Am. St. Rep. 227, 7 L. R. A. tract did not amount to a sale of the 200n. wire to the railroad company, and a "West. U. Tel. Co. v. Rich, 19 Kan. lessee of the road would have no right 517, 27 Am. Rep. 159. to the wire other than to use it in its '* See, West. U. Tel. Co. v. West., etc., telegraphic service. R. Co., Dl U. S. 283. The telegraph -^ American Tel., etc., Co. v. Pearce, company contracted with a railroad 71 Md. 535, 18 Atl. 910, 28 Am. St. corporation to put up a special wire for Rep. 227, 7 L. R. A. 200n. <§! 149] ON KAILKOAD KIGIIT OF WAY. 139 the line be built jointly by the railroad and telegraph companies ; or, should it be constructed by these two companies as partners — and, in either instance, it is understood that the railroad company is to use the wires for its corporate purposes — the landowner would not be en- titled to additional compensation from either of these companies.^® If the railroad company could build by itself without liability, it would not assume any liability by building with another. Whatever it could do and would have done for its own use and benefit, and was so done, would be so far as the landowner is concerned, damnum absque injuria, no matter who bore the expense; or, perhaps more correctly speaking, it would be damages already paid for.^'^ The tele- graph line may have been originally constructed by the railroad com- pany for its o\\Ti use but upon a transfer, of such a line by the rail- road company to a telegraph company, the o^vner of the fee may claim compensation.^^ § 148. Same continued — not taxable. Telegraph and telephone companies are generally taxed similarly to railroad companies ; that is, they are assessed with so much taxes for every mile of their line. Statutes which provide that these com- panies shall be thus taxed, unless clearly expressed to that effect, will not apply to companies built by railroads for the purpose of manag- ing its trains and not for profit. ^^ In such cases, these lines are used by the railroad companies as an indispensable part of their machinery for the safe and expeditious moving of their trains. § 149. Railroad companies to be compensated. It is not our purpose to leave on the mind of the reader the impres- sion that railroad companies are not to be compensated for the ease- ment gi'anted to telegraph companies over the former's rights of way for the construction of lines of such companies, when the fee is in the original lando^\^ler, for such is not the fact. These lines are regarded as subjecting the easement of a railroad to an additional servitude, •"West. U. Tel. Co. v. Rich. 19 Kan. '« Hodges v. West. U. Tel. Co.. 133 X. 517. 27 Am. Rep. 159. Car. 225, 45 S. E. 572. '•West. U. Tel. Co. v. Rich, 19 Kan. '» Adams v. Louisville, etc.. R. Co., 13 517, 27 Am. St. Rep. 159. So. 932. 1-iO TELEGRAPH AXD TELEPnONE COMPANIES. [<§, 149 and the company is entitled to compensation therefor.^^ The ease- ment granted to railroad companies is for the purpose of constructing railway facilities thereon; but they have sufficient title in the ease- ment to demand compensation for any additional rights of way to be constructed thereon, as that of an easement granted to a telegraph company; to permit one of these companies to construct a line on such easement, without first compensating the railroad company, would be unconstitutional, as it would be taking property without due compensation.^^ The same rule applies in these cases, as that of acquiring a right of w^ay across private property, or upon the public highway — that is, the telegraph company should first try to acquire an easement, along and uj^on the right of way of the railroad, by an agreement with the latter ; ~" but if this cannot be accomplished by contract, the telegraph company may proceed to a condemnation pro- ceeding.^^ § 150. Right to — must first be acquired. The right which a telegraph company may have to construct a line of wires on the right of way of a railroad company must first be given by either some federal or state statute, or by both. For instance, where a statute provides that telegraph companies may construct their lines "along and parallel to any of the railroads of the states," it does not authorize the condemnation of a right of way by a tele- gTaph company along and upon a right of way of a railroad com- =» Atlantic, etc., Tel. Co. v. Chicago, Tel. Cable Co., 68 Miss. 806, 10 So. 74. etc., R. Co., 6 Biss. (U. S.) 158; West. See, also, Baltimore, etc., Tel. Co. v. U. Tel. Co. V. Atlantic, etc., Tel. Co., Morgan's Louisiana, etc., R. Co., 37 La. 7 Biss. (U. S.) 367; West. U. Tel. Co. Ann. 883; Southeasteni R. Co. v. Euro- V. American U. Tel. Co., 9 Biss. (U. pean, etc., Electric Printing Tel. Co., S.) 72; Kester v. West. U. Tel. Co., Exch. 363. 108 Fed. 926 ; Southwestern R. Co. v. •'■ Southwestern R. Co. v. Southern, Southern, etc., Tel. Co., 46 Ga. 43, 12 etc., Tel. Co., 46 Ga. 43, 12 Am. Rep. Am. Rep. 585; American Tel., etc., Co. 585. V. Pearce, 71 Md. 535, 18 Atl. 910, 28 « Postal Tel. Cable Co. v. Oregon Am. St. Rep. 227, 7 L. R. A. 200n; Short Line R. Co., 23 Utah 474, 65 Northwestern Tel. Exch. Co. v. Chicago, Pac. 735, 90 Am. St. Rep. 705. etc., R. Co., 76 Minn. 334, 79 N. W. =3 Louisville, etc., R. Co. v. Postal Tel. 315; Louisville, etc., R. Co. v. Postal Cable Co., 68 Miss. 806, 10 So. 74. § 151] ON RAILROAD RIGHT OF WAY. 141 ]iany.-^ In Mississippi, whenever a telegraph company secures thi"^ right it becomes the duty of the railroad to receive and transport sucli material, construction cars, etc., as is necessary in constructing the line, and to distribute the material along the road as the telegraph company may direct "upon such teiTns and conditions as may be rea- sonable and just." ^^ Wlien the right is acquired under a federal grant, the company must file its written acceptance with the post- master-general "of the restrictions and obligations required" by the statute.2« § 151. Interest acquired by telegraph companies. Telegraph companies which are constructed along and upon the right of way of a railroad company acquire no title or interest in the easement.-'^ The fee still remains in the original landowner or the railroad company, whichever it may be ; and the telegraph companies have only the right to erect their poles upon the easement, and the right of ingress and egress thereon for the purpose of keeping up the lines. It is incumbent upon the telegraph company to construct its ]ioles and wires so as not to interfere with the moving trains, and -* Postal Tel. Cable Co. v. Norfolk, souri. The company owning the bridge, etc., R. Co., 88 Va. 920, 14 S. E. 803; claiming that the condemnation pro- Xew York City, etc., R. Co. v. Central ceeding was Avithout authority of law. U. Tel. Co., 21 Hun (N. Y.) 261. brought an action to enjoin the same. ^'Laws Miss. (1890), ch. 63, p. 72. and to prevent any interference with ==' Chicago, etc., Co. v. Pacific Mut. the bridge. Held, that, before the tel- Tel. Co., 16 Am. & Eng. Corp. Cas. 271. egraph company can construct its line? In this case it was held: A telegraph at the point named, it must file with company in the exercise of eminent do- the postmaster-general a written ac- main, instituted a proceeding to con- ceptance of the restrictions and obliga- demn and appropriate so much of a tions imposed by congress in an "Act bridge as was necessary to support a to aid in the construction of telegraph line of magnetic telegraph proposed to lines, and to secure to the government be built, and for the construction, main- the use of the same for postal, mili- tenance and operation of the same. The tary, and other purposes." bridge was built in pursuance of state =' Postal Tel. Cable Co. v. Louisiana and national legislation, and spans the Western R. Co., 49 La. Ann. 1270, 22 Missouri river at Atchison, Kansas, So. 219; Mobile, etc., R. Co. v. Postal where the river is navigable, and where Tel. Co., 24 So. 408. it divides the states of Kansas and Mis- 142 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 151 not to permit its lines to become dangerous to transportation along tte road. The first duty which a railroad company owes to the public is to keep its roadbed in proper condition for the safety of the pas- sengers and goods during transportation; and, in order to do this, the railroad company may make such disposition of its roadbed as may be necessary for the maintenance of same : should it become nec- essary to remove the poles for this purpose, it may do so without be- coming liable to the telegraph company, unless the same is done negli- gently, carelessly or unnecessarily. In many instances, the railroad may and does widen its roadbed for the purpose of laying a side track or a double track ; when it does it may remove the poles of these com- panies or give them reasonable time or proper notice to do the same themselves at their own expense. We mention these facts to show that a railroad company does not lose any interest or control over the easement but may make any disposition or use of it necessary for the carrying on of its business.^® § 152. By condemnation. When a telegraph company has failed to acquire by an agreement with the railroad company an easement over the latter's right of way, the next and last step left to such company is under a condemnation proceeding. It has long been settled that property already devoted to public use may afterwards be condemned for another and different public use under authority from the state ; ^^ and as lands, whereon =^ Postal Tel. Cable Co. v. Louisiana Rep. 802, 48 Pac. 465; St. Louis, etc.. Western R. Co., 49 La. Ann. 1270, 22 R. Co. v. Hannibal U. Depot Co., 125 So. 219; Mobile, etc., R. Co. v. Postal Mo. 82, 25 S. W. 483; Kansas City v. Tel. Co., 24 So. 408. Marsh Oil Co., 140 Mo. 458, 41 S. W. ^Kansas, etc., R. C. v. Northwest- 943; Kansas City, etc.. Bell R. Co. v. em, etc.,,R. Co., 161 Mo. 288, 61 S. Kansas City, etc., R. Co., 118 Mo. 599, W. 684, 84 Am. St. Rep. 717, 51 L. R. 24 S. W. 478; Twelfth Market Street A. 36; Butte, etc., R. Co. v. Montana, Co. v. Philadelphia, etc., R. Co., 142 etc., R. Co., 16 Mont. 504, 50 Am. St. Pa. St. 589, 21 Atl. 902; The Sunder- Rep. 508, 41 Pac. 232, SI L. R. A. 298; land Bridge, 122 Mass. 459; Enfield Chicago, etc., R. Co. v. Stockweather, Toll Bridge Co. v. Hartford, etc., R. 97 Iowa 159, 59 Am. St. Rep. 404, 66 Co.. 17 Conn. 40, 42 Am. Dec. 716. N. W. 87; Little Nestucco Road Co. In Central Bridge Corp. v. City of V. Tillamook Co., 31 Or. 1, 65 Am. St. Lowell, 4 Gray 474, Bigelow, J., used § 152] ON EAILRO^ID EIGHT OF WAY. 143 telegi-aph lines are to be constructed are granted to companies for public enterprises, it necessarily follows, therefore, that these com- panies may condemn a part of the right of way which has already been granted to a railroad company.^^ While this is the general rule, yet it is a matter to be closely considered ; and in no case should this right be exercised without an express"^ legislative authority or one tlie following language concerning the subject Jn question : "Nor is the prin- ciple thus recognized any violation of justice or sound policy, nor does it in any degree tend to impair the obliga- tion or infringe upon the sancity of contracts. It rests on the basis that public convenience and necessity are of paramount importance and obligation, to which, when duly ascertained and declared by the sovereign authority, all minor considerations and private rights and interests must be held, in a meas- ure and to a certain extent, subordi- nate. By the grant of a franchise to individuals for one public .purpose, the legislatures do not forever debar them- selves from giving to others new and paramount rights and privileges when required by public exigencies, although it may be necessary, in the exercise of such rights and privileges, to take and appropriate a franchise previously granted. If such were the rule, great public improvements, rendered necessa- ry by the increasing wants of society in the development of civilization and the progress of the arts might be pre- vented by legislative grants which were wise and expedient in their time, but which the public necessities have out- grown and rendered obsolete. The only true rule of policy, as well as of law, is, that a grant for ont public purpose must yield to another more urgent and important, and this can be effected without any infringement on the con- stitutional rights of the subject. If in such cases suitable and adequate pro- vision is made by the legislature for the compensation of those whose prop- erty or franchise is injured or taken away, there is no violation of public faith or private rights. The obligation of the contract created by the original charter is therebj' recognized." »» Postal Tel. Cable Co. v. Oregon Short Line E. Co., 23 Utah 474, 65 Pac. 735, 90 Am. St. Rep. 705; Baltimore, etc., R. Co. v. Board of Commerce, 156 Ind. 260, 58 N. E. 837, 59 N. E. 856; Gold V. Pittsburg, etc., R. Co., 153 Ind. 232, 53 N. E. 285 ; Steele v. Epsom, 142 Ind. 397, 41 X. E. 822; Southern Pac. R. Co. V. Southern Cal. R. Co., 11 Cal. 222, 43 Pac. 602; Southwestern Tel., etc., Co. V. Gulf, etc., R. C, 52 S. W. 106; St. Louis, etc., R. Co. v. Postal Tel. Co., 173 111. 521, 51 N. E. 382. " Little Nestucco R. Co. v. Tillamonk County, 31 Oregon 1, 48 Pac. 465, 65 Am. St. Rep. 802. On this subject Chief Justice Shaw said: "It must appear that the govern- ment intends to exercise this high sov- vereign right by clear and expressed terms or by necessary implication, leav- ing no doubt or imcertainty respecting such intent. It must also appear by the act that they recognize the right of private property, and mean to respect it; and under our constitution, the act conferring the power must be acompan- 144 TELEGRAPH AND TELEPHONE COMPANIES. [§ 152 necessarily implied.^^ In most of the states, if not in all, there are special statutes applicable to such condemnations ; and where this is not the case, the right is exercised under the eminent domain stat- utes. In order for the reader to familiarize himself with this subject, and to have a better knowledge of the procedure within his immediate jurisdiction, it is necessary to consult the statutes of his own state and the cases arising thereunder.^^ ied by just and constitutional provis- ions for full compensation to be made to the owner. If the government au- thorizes. the taking of property for any use other than a public one, or fails to make provision for a compensation, the act is simply void; no right of taking as against the owner is conferred; and he has the same rights and remedies against ;i party acting under such au- thority as if it had not existed. In general, therefore, Avhen any act seems to confer an authority on another to take property, and the grant is not clear and explicit, and no compensation is provided by it for the owner of party whose rights are injuriously affected, the law will conclude that it was not the intent of the legislature to exer- cise the right of eminent domain, but simply to confer a right to do the act, or exercise the power given, on first obtaining the consent of those thus af- fected." Boston, etc., R. R. v. Salem, etc., R. R., 2 Gray, 1, 36. See, also. Fort Wayne v. Lake Shore, etc., R. Co., 132 Ind. 558, 32 N. E. 215, 13 L. R. A. 367n, 32 Am. St. Rep. 277 ; Vander- lip V. Grand Rapids, 16 Am. St. Rep. 613; Davis v. Meyer, 14 N. Y. (4 Ker- man) 506, 67 Am. Dec. 186. « Louisville, etc., R. Co. v. Whotley County, 95 Ky. 215, 24 S. W. 604, 44 Am. St. Rep. 220; Cleveland, etc., R. Co. v. Speer, 56 Pa. St. 325, 94 Am. Dec. 84. "'^ United States. — Oregon Shoi-t Line R. Co. V. Postal Tel. Cable Co., 49 C. C. A. 663, 111 Fed. 842, affirming 104 Fed. 623 ; Postal Tel. Cable Co. v. Ore- gon Short Line R. Co., 114 Fed. 787. Alabama. — Mobile, etc., R. Co. v. Postal Tel. Cable Co., 120 Ala. 21, 24 So. 408. See, also. New Orleans, etc., R. Co. V. Southern, etc., Tel. Co., 53 Ala. 211. Arkansas. — St. Louis, etc., R. Co. v. Southwestern Tel., etc., Co., 121 Fed. 278. Colorado. — Union Pac. R. Co. v. Colorado Postal Tel. Cable Co., 30 Colo. 133, 69 Pac. 564. Georgia. — Savannah, etc., R. Co. v. Postal Tel. Cable Co., 112 Ga. 941, 38 S. E. 353, 115 Ga. 554, 12 S. E. 1; West. U. Tel. Co. v. American U. Tel. Co., 65 Ga. 160, 38 Am. Rep. 781. Illinois. — St. Louis, etc., R. Co. v. Postal Tel. Co., 173 111. 508, 51 N. E. 382. Indiana.— Vostal Tel. Cable Co., v Chicago, etc., R. Co., 30 Ind. App 652. Louisiana. — Postal Tel. Cable Co. v Morgan's Louisiana, etc., R. Co., 49 La. Ann. 58, 21 So. 183; Postal Tel Cable Co. v. Louisiana Western R. Co. 49 La. Ann. 1270, 22 So. 219; South western Tel. Co. v. Kansas City, etc. R. Co., 109 La. 892. New Mexico. — Union Trust Co. v Atchison, etc., R. Co., 8 N. Mex. 327 43 Pac. 701. Mississippi. — Mobile, etc., R. Co. v § 153] ON RAILROAD RIGHT OF WAY. 145 § 153. Exception to rule. There are some exceptions to the general rule that land can be con- demned for a public use which is already being used for a public use ; for instance, property cannot be taken from one corporation by an- other to be used for the same purpose and in the same manner for which it was used by the corporation which first appropriated it to such use and purpose.^^ In other words, every corporation holds property subject to the rights of the state to take it for another pub- lic use, whenever, in the discretion of the legislature the exercise re- quires the use for such other purpose : This is true even as to the franchise itself of any corporation; "^ but, in order for one corpora- tion to take the lands or franchises of another which is in actual use by the latter, the same must have been authorized by the legislature.^® A telegraph company would not deprive the railroad of the use of its right of way or any part thereof : So that part which is not essential to the employment of its franchise and property, or which is not in Postal Tel. Cable Co., 76 Miss. 731, 2G So. 370, 45 L. R. A. 223. North Carolina. — Postal Tel. Cable Co. V. Southern R. Co., 90 Fed. 31. Ohio.— Vostal Tel. Cable Co. v. Cleveland, etc., R. Co., 94 Fed. 234. South Carolina. — South Carolina, etc., R. Co. V. American Tel., etc., Co., 65 S. Car. 459, 43 S. E. 970. Tennessee. — Mobile, etc., R. Co. v. Postal Tel. Cable Co., 101 Tenn., 62, 46 S. W. 571, 41 L. R. A. 403. Texas.— ¥t. Worth, etc., R. Co. v. Southwestern Tel., etc., Co., 96 Texas, 160, 71 S. \V. 270, 60 L. R. A. 145; Houston, etc., R. Co. v. Postal Tel. Ca- ble Co., 18 Tex. Civ. App. 502; Gulf, etc., R. Co. V. Southwestern Tel. etc., Co., 18 Tex. Civ. App. 500. Utah.— Fostal Tel. Cable Co. v. Ore- gon Short Line R. Co., 23 Utah 476, 65 Pac. 735, 90 Am. St. Rep. 705. Virginia. — Postal Tol. Cable Co. v. Farmville, etc., R. Co.. 0(i Va. 601. 32 S. E. 468. ^ Kansas, etc., R. Co. v. Northwest- ern, etc., Co., 161 Mo. 288, 61 S. W. 684, 84 Am. St. Rep. 717, 51 L. R. A. 936; Lewis on Eminent Domain, § 276. '^ Kansas, etc., R. Co. v. Northwest- ern, etc., Co., 161 Mo. 288, 61 S. W. 684, 84 Am. St. Rep. 717, 51 L. R. A. 930; Twelfth Market St. Co. v. Phila- delphia, etc., R. Co., 142 Pa. St. 589, 21 Atl. 009; The Sundeland Bridge, 122 Mass. 459; In re Opinion of the Justices, 66 N. H. 629, 33 Atl. 1076; New York Central, etc., R. Co. v. Met- ropolitan Gas Light Co., 03 N. Y. 326 ; In re Bellona Co., 3 Bland 442; Enfield Toll Brig. Co. V. Hartford, etc., R. Co., 17 Conn. 40, 42 Am. Dec. 716; Boston, etc., Co. V. Salem, etc., R. Co., 2 Gray 1. ^Brette, etc., R. Co. v. Montana, etc., R. Co., 16 Mont. 504, 50 Am. St. Rep. 508, 31 L. R. A. 298. See, also, notes 31 and 32, for further reference. T.'& T.— 10 146 TELEGRAPH AS^D TELEPHONE COMPANIES, [^ 153 actual usc,^^ may be condemned for telegraph lines ; provided, they are so constructed as not to interfere with the free exercise of the former's franchise or with the actual operation of the road.^'^ A somewhat different rule has been held in a few cases, where it was emphasized that the possible future needs of the railroad company must be given full consideration in deter- mining whether any portion of its right of way may be taken from it for a telegraph line.^^ A railroad company ac- quires the right to use the right of way for such purposes, and only such, as may be necessary to carry on the business for which it was incorporated. It cannot carry on any other enterprise or business of whatever nature upon its right of way, except that which is necessary to accomplish the business of railroading; but when it does become necessary to use all or a greater part of its easement, and this cannot be done while the telegTaph companies remain on the right of way, ^Mobile, etc., R. Co. v. Postal Tel. Cable Co., 24 So. 408. ^ These foregoing rules were well stated by Folger, J., in Matter of City of Buffalo, 68 N. Y. 167, 175, as fol- lows: "In determining whether a power generally given is meant to have operation upon lands already devoted by legislative authority to a public purpose, it is proper to consider the na- ture of the prior public works, the public use to which it is applied, the extent to which that use would be im- paired or diminished by the taking of such part of the land as may be de- manded for the subsequent public use. If both uses may not stand together, with some tolerable interference which may be compensated for by damages paid, if the latter use, when exercised, must supersede the former, it is not to be implied from a general power given, without having In view a then existing - and a particular need there- for, that the legislature meant to sub- ject lands devoted to a public use al- ready in exercise to one which might thereafter arise. A legislative intent that there should be such an effect will not be inferred from a gift or power in general terms. To defeat the attainment of an important public purpose to which lands have already been subjected, the legislative intent must unequivocally appear. If an im- plication is to be relied upon, it must appear from the face of the enactment, or from the application of it to the particular subject-matter of it, so that by reasonable intendment some espe- cial object sought to be attained by the exercise of the power granted could not be reached in any other place or manner." Postal Tel. Co. v. Oregon, etc., R. Co., 23 Utah 474, 65 Pac. 735, 90 Am. St. Rep. 705; Southern Pac. R. Co. V. Southern Cal. R. Co., Ill Cal. 231, 43 Pac. 602. »MVest. U. Tel. Co. v. Pennsylvania R. Co., 59 C. C. A. 113, 123 Fed. 33, 120 Fed. 362. See, also, St. Louis, etc., R. Co. v. Southwestern Tel., etc., 58 C. C. A. 193, 121 Fed. 278. § 155] ON RAILROAD RIGHT OF WAY. 147 the latter must give way to the railroad company, to the extent of moving its lines off of the right of way. This fact seems to have been lost sight of in the case cited. § 154. Same continued — cannot be defeated by claiming it should be on other lands. Such a condemnation camiot be defeated by showing that a right of way for the telegraph line may be secured over a public highway near or adjacent to the railroad, or over other property.^*^ A railroad com- pany can have no greater claim to its right of way than the public can have to the public highways, or an individual to his private prop- erty. So, to allow such condemnation to be defeated by a railroad company on this ground would give to the railroad a greater right than is given to individuals; which would virtually take away from telegraph companies the power of exercising the right of eminent do- main. If this right should be defeated by either of these parties on such showing it should be by the two latter; since there is no ques- tion but that there would be less danger to the public if these lines were along the right of way of the railroads : and surely, during this day and time, it would be much more convenient and less expensive to these companies ; and, at the same time, the railroad companies would not be incommoded in the least in their business affairs. Fur- thermore, the expenses of the railroad company might be greatly re- duced on account of the competition of the many lines which would likely be on the right of way. § 155. Foreign telegraph companies — right to condemn. A corporation can have no legal existence outside of the state creat- ing it; therefore, it can transact business within the scope of its powers in other sovereignties only upon such terms and conditions as such sovereig-nties may provide: ^^ and while, under the general rules *" Union Pac. K. Co. v. Colorado Pos- A. 145. See, also, St. Louis, etc., R. tol Tel. Cable Co., 30 Colo. 133; Sa- Co. v. Southwestern Tel., etc.. Co. (58 vannah, etc., R. Co. v. Postal Tel. Ca- C. C. A. 198,) 121 Fed. 278. ble Co., 115 Ga. 554, 42 S. E. 1 ; Ft. "Granger's, etc., Insurance Co. v. Worth, etc., R. Co. v. Southwestern Kanipov. 73 Ala. 325. Tel., etc., Co., 71 S. \y. 270. 60 L. R. 148 TELEGKAPK AND TELEPPIONE COMPANIES. [§155 of comity a corporation organized in one state may be permitted to transact business in other states/- yet the power of eminent domain, gi'anted to a corporation of one state, is not such a privilege as will be extended by comity alone to the corporation in its transactions in an- other state.* ^ Therefore, this being the rule applicable to corpora- tions in general it follows that a foreign telegraph company has no power under the charter; nor is it permitted by, the rule of comity alone to exercise the right of eminent domain beyond the state of its creation. ^^ A state may confer upon a foreign telegraph company the right of eminent domain *^ by an express grant; *^ and sometimes the right passes under a statutory grant of power to corporations gen- erally: *" thus, where a statute provides that a foreign telegraph com- pany may exercise the right of eminent domain as a quasi-successor of another company to which it was originally granted.*^ So also, such a grant may sometimes be implied. Thus, it was held that the right which had been granted to a domestic corporation would not "Empire Mills v. Alston Grocery Co., 33 Am. & Eng. Corp. Cas. 15; Can- adian Pao. E. Co. V. West. U. Tel. Co., 17 Supreme Court of Canada 151; Bank of xUigusta v. Earle, 13 Pet. (U. S.) 519; Atchison, etc., R. Co. v. Fletcher, 35 Kan. 236, 10 Pac. 596; Dodge V. Council Bluffs, 57 Iowa 560, 10 N. W. 900 : Richwald v. Commercial Hotel Co., 106 111. 439; Miller v. Ewer. 27 Me. 509; Christian Union v. Yount, 101 U. S. 352: Newberg Petroleum Co. V. Weare, 27 Ohio St. 343; William v. Creswell, 51 :Miss. 817; Baltimore, etc.. Pv. Co. V. Glenn, 28 Md. 287; Blair v. Perpetual Ins. Co., 10 Mo. 559; Ohio Life Ins., etc., Co. v. Merchants Ins., etc., Co.. 11 Humph. (Tenn.) 1; Thompson v. Waters, 25 Mich. 214; Merrick v. Van Sautvoord, 34 N. Y. 208. The same may be implied unless there is an affirmative refusal. Col- well V. Colorado Springs Co., 100 U. S. 55, 3 Colo. 82; Christian Union v. Yount, 101 U. S. 352; Richwald v. Commercial Hotel Co., 106 111. 439. See note to Cone, etc., Co. v. Poole (S. C), 24 L. R. A. 289. *« Middle Brig. Co. v. Marks, 26 Me. 326; State v. Boston, etc., R. Co., 25 Vt. 433. Compare Baltimore, etc., R. Co. V. P. W. & Ky. R. Co., 17 W. Va. 812. " Postal Tel. Cable v. Cleveland, etc., R. Co., 94 Fed. 234; St. Louis, etc., R. Co. V. Soiithwestern Tel., etc., Co., (58 C. C. A. 198) 121 Fed. 278. ^^ Lewis on Eminent Domain (1888). § 242; State v. Sherman, 22 Ohio St. 434; Morris Canal, etc., Co. v. Town- send, 24 Barb. (N. Y.) 658; New York, etc., R. Co. v. Young, 33 Pa. St. 175; Dodge v. Council Bluffs, 57 Iowa 560, 10 N. W. 886; Abbott v. N. Y., etc., R. Co., 145 Mass. 450, 15 N. E. 91; Gray v. St. Louis, etc., R. Co., 81 Mo. 126." *«Gray v. St. Louis, etc., R. Co., 81 Mo. 126. "Re Marks, 6 N. Y. Sup. 105. « Abbott V. X. Y.. etc., R. Co., 145 Mass. 450, 15 N. E. 91. •^ 156] ON EAILROAD EIGHT OF WAY. 149 pass to a foreign company which hy deed succeeds to its rights and powers without the legislative consent: yet, if for twenty years, the state had dealt with the company on the assumption that it had suc- ceeded to all the rights of its predecessor, had advanced it a large sum of money and had allowed it to mortgage the road and sell bonds in the market, a presumption of the assent of the legislature would pre- vail.-*^ § 156. Same continued — consolidation — agency. It seems not an unusual thing for large telegraph and telephone companies to utilize small companies in order to carry out their busi- ness. ^^ A telegraph company resulting from the consolidation of companies created by different states becomes a domestic company in each of them ; and the powers which each of its constituents were authorized to exercise in the particular locality descends to it. So, if its local predecessor has the right of eminent domain the consolidated company will not be barred from exercising it, because it consists in part of a foreign company. ^^ Some of the courts have gone further, and hold that it is not necessary that there should be a consolidation, but that it is subordinate to the foreign company, and is only to assist it in carrying out its object.^- In other words, it may be nothing more to the foreign company than a mere agent ; ^^ yet, however, this rule has not been followed by all the courts. Thus, it was held, that such company will not be permitted to evade this provision, and do indirectly what it may not do directly by acquiring a right of way, through the agency of a domestic company. ''* *» Abbott V. N. Y., etc., R. Co., 145 Co., 30 Colo. 133; Postal Tel. Cable Mass. 450, 15 N. E. 91. Co. v. Oregon Short Line R. Co., 23 "" Postal Tel. Cable Co. v. Oregon Utah 474, 65 Pac. 735, 90 Am. St. Rep. Short Line R. Co., 23 Utah 474, 65 705; Day v. Postal Tel. Co., 66 Md. Pac. 735, 90 Am. St. Rep. 705. 354. =' Toledo, etc., R. Co. v. Dunlap, 47 ""Postal Tel. Cable Co. v. Oregon Mich. 456, 11 N. W. 271; Abbott v. Short Line R. Co., 23 Utah 474, 65 N. Y., etc., R. Co., 145 Mass. 450, 15 Pac. 735, 90 Am. St. Rep. 705. N. E. 91; Trcster v. Missouri Pac. R. "^ State v. Scott, 22 Neb. 628, 36 N. Co., 36 N. W. 502. W. 121 ; Trester v. Missouri Pac. R. "Postal Tel. Cable Co. v. Oregon Co., 23 Neb. 242, 36 N. \Y. 502; Koe- Short Line R. Co., 104 Fed. 623, affirm- ing v. Chicago, etc., R. Co., 27 Neb. ing (CCA.) Ill Fed. 842; Union 099, 43 X. W. 423. Pac. R. Co. V. Colorado Postal Cable , 150 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 157 § 157. Same continued — general and special laws. While the above rule is the general law applicable to foreign cor- porations, exercising the right of eminent domain, without their state of incorporation, yet the same is applied to foreign telegraph and tele- phone companies, seeking to carry on a business in other states : and that, too, whether they are making an effort to condemn the land of some private citizen, or the easement of a public highway, or the right of way of a railroad company. There may be general statutes wherein they acquire the right to exercise this power over private property and public highways, and special statutes with reference to the condemnation of the right of way of railroad companies ; or they may acquire the right under both: but where the right is acquired under either of the two statutes,^^ they should resort to that statute which has particular reference to that class of property sought to be condemned. § 158. Must be in good faith. In order for a telegraph company to be endowed with the author- ity to condemn the right of way of a railroad company, the same must be done for itself as an incorporated concern, or as an agent for an- other incorporated company. Thus, it was held that a private person could not condemn land for a right of way for a private business for himself or for another ; but that the proceedings could be maintained only by one who is in charge of a public use, and who intends to per- form a public service : ^^ although he may exercise the right as agent for some telegraph or telephone company ; but in order to do this, his agency must be stated. ^'^ A person is not in charge of a public duty if he seeks to condemn the right of way merely to sell the same to a com- pany f^ but if the articles of incorporation of the company seeking to exercise the right discloses the fact that it w^as organized to sell or oth- erwise dispose of the lines of the telegraph company which it might ^' Koeing v. Chicago, etc., R. Co., 27 70 Pac. 1083, 92 Am. St. Rep. 188, 59 Neb. 699, 43 N. W. 423. L. R. A. 581. '"Beneridge v. Lewis, 137 Cal. 619, =* Beveridge v. Lewis, 137 Cal. 619. 70 Pac. 1083, 92 Am. St. Rep. 188, 70 Pac. 1083, 92 Am. St. Rep. 188, 59 59 L. R. A. 581. L. R. A. 581. *^Beveridge v. Lewis, 137 Cal. 619. ^ 159] ON KAILEOAD RIGHT OF WAY. 151 construct or acquire, and that this fact was in connection with other evidence in the case — as that it was a foreign corporation, and not its honest intention to operate the lines in question, except in the inter- est of and in connection with that corporation — does not establish in law an intent to take the property for a private use.^" What a public use is, is a question of law to be decided by the court,"° but when and by what companies the power of eminent domain may be exercised, is to be decided by the legislature.®^ § 159. What portion of right of way may be taken. Where the right to condemn the right of way of a railroad company has been conferred upon a telegraph company ; the power to select so much of the right of way, as may be necessary for the lines is con- ferred by implication, subject to the limitation that its selection must not essentially interfere with the operation of the railroad.^- When the power to condemn the right of way ha> l^een acquired by the tele- graph company, there is generally very little dispute between the two companies as to where the line shall be constructed ; provided, it is not to be so near to the track as to interfere with the running of the trains, and the carrying on of its general corporate business.^^ The ^» Union Pac. R. Co. v. Colorado, K. Co. v. Postal Tel. Cable Co., 115 etc., Tel. Co., 30 Colo. 133, 69 Pae. Ga. 554, 12 S. E. 1. See, also, St. 564, 97 Am. St. Rep. 106; Postal Tel. Louis, etc., R. Co. v. Southwestern Cable Co. v. Oregon Short Line R. Tel., etc., Co., (58 C. C. A. 198) 121 Co., 23 Utah 474, 65 Pac. 735, 90 Am. Fed. 278. St. Rep. 705. «' Postal Tel. Cable Co. v. Oregon •«> Judicial notice will be taken that Short Lino R. Co., 23 Utah 474, 65 a public telegraph line is a public im- Pac. 735, 90 Am. St. Rep. 705; Rail- provemont, for which property may be way v. Pitty, 57 Ark. 359, 21 S. W. taken for a public use. Mobile, etc., R. 884, 20 L. R. A. 434n; Englewood Con- Co. V. Postal Tel. Cable Co., 24 So. necting R. Co. v. Chicago, etc., R. Co., 408. 117 111. Gil, G N. E. 684; O'Hare v. "Chicago, etc., R. Co. v. Morehouse, Railroad Co., 139 111. 151, 28 N. E. 112 Wis. 1, 87 N. W. 849, 56 L. R. A. 923; Stork v. Railroad Co., 43 Iowa 240, 88 Am. St. Rep. 918, and exten- 501 ; Peorey v. Railroad Co., 30 Me. sive note thereunder. 498; Fall River Iron Works Co. v. "IMobile, etc., R. Co. v. Postal Tel. Oil Colony, etc., R. Co., 5 Allen, 222; Cable Co., 24 So. 408; Savannah, etc., Railroad Co. v. Si)eer, 56 Pa. St. 325, R. Co. V. Postal Tel. Cable Co., 112 04 Am. Dec. 84; In the matter of New Ga. 941, 38 S. E. 353; Savannah, etc., York R. Co., 46 N. Y. 546, 7 Am. Rep. 152 TEL,£GKAPH AND TELEPHONE COMPANIES. [§ 159 most difficult question is, \Vhat shall be the amount of damages to be a-warded? And after this has been determined, the portion of the right of .way to be taken for the telegraph lines is easily solved. § 160. Nature of petition. The nature of a petition presented asking the condemnation of a portion of the right of way of a railroad company, should be very similar, in most respects, to a petition filed, praying the condemna- tion of private property, or part of a public highway for telegraph and telephone companies. It will be unnecessary therefore to enum- erate again the essential parts of a petition ; yet some of those parts, which have been spoken of heretofore, may be somewhat differently alleged in a petition for the condemnation of a right of way of a rail- road company. For instance, it is not necessary to give as full a de- scription of the route of the contemplated company, or the property to be condemned, as that given in a petition, praying for the con- demnation of private property; because the route has already been most thoroughly described, when the property was condemned for the railroad company's right of w^ay, and of which there are accessible records.^^ If the fact is alleged that the porperty is that of a rail- road company, running between certain termini, within certain coun- ties; setting forth the amount of ground needed for each pole; the distance of the poles from each other; and the distance they will be from the railway track, the way desired will be sufficiently de- scribed.^^ It need not designate the exact positions to be occupied by the poles, nor the side of the track to be used, nor that existing lines of telegraph will be displaced, nor the quantity or specific description of land to be taken. ^'^ 385; Kansas, etc., R. Co. v. North- Lake Shore, etc., R. Co. v. Pittsburg, western, etc., Co., 161 Mo. 288, 84 Am. etc., R. Co., 71 111. 40. St. Rep. 719, 61 S. W. 684, 5 L. R. A. ^^pogt^l Tel. Cable Co. v. Oregon 936. Shore Line R. Co., 23 Utah 474, 65 «* Postal Tel. Cable Co. v. Oregon Pac. 735, 90 St. Rep. 705. Short Line R. Co., 23 Utah 474, 65 ""Mobile, etc., R. R. Co. v. Postal Pac. 735, 90 Am. St. Rep. 705. A Tel. Cable Co., 24 So. 408. railroad track is a fixed monument. <§ 161] ON RAILROAD RIGHT OF WAY. 153 § 161. Same continued — necessity for taking. There seems to be some doubt prevailing among the courts as to whether the petition should allege the fact of the necessity of taking the land for the right of way ; hut the weight of authority — which we think to be correct — is that it is not necessary to specifically allege this fact, as the same will be implied. ^"^ There are states whose con- stitutions expressly require this question to be submitted to, and de- termined by a jury; ^^ and where this is the case, there can be no doubt that it must be done. There are cases, too, which, in a general way, have spoken of the question as if it were a constitutional one ; and that because there is no authority in the legislature to take land of a private person or corporation, except for public use, he neces- sarily must have the right to a judicial determination as to the neces- sity of the taking in any particular instance.®^ Whether this be true or not, it is not necessary in the absence of a constitutional or statu- tory provision to that effect, to submit the question to the determina- tion of a jury. It may doubtless be referred for decision to a court, or to commissioners appointed for that purpose by the court, and acting under its supervision and subject to its control; but if it is not presented for such determination before the appointment of com- missioners, it will be presumed to have been waived."^*^ When the necessity, therefore, exists for the taking — whether it be alleged specifically in the petition, or whether it is implied therein — it is not a question whether there is other land to be had equally available ; but the question is. Whether the land sought is needed for the con- struction of the public work V^ In other words, it is not necessary to allege in the petition, that the land sought to be condemned is the only available land to be had ; but the reason,that this particular land •"Mobile, etc., K. Co. v. Postal Tel. °»Lecoiil v. Patic Jury, 20 La. Ann. Cable Co., 24 So. 408; Postal Tel. 308; New Orleans, etc., R. Co. v. Cable Co. v. Oregon Short Line R. Co., Gray, 32 La. Ann. 471. 23 Utah 474, 65 Pac. 735, 90 Am. St. ™ HejTieman v. Blake, 19 Cal. 579. Rop. 705; Lynch v. Forbis, 161 Mass. "Postal Tel. Cable Co. v. Oregon 302, 37 X. E. 437, 42 Am. St. Rep. Short Line R. Co., 23 Utah 474, 65 402, and note. Pac. 735, 90 Am. St. Rep. 705; Mo- *» People V. Village of Brighton. 20 bile, etc., R. Co. v. Postal Tel. Cable Mich. 57; Power's Appeal, 29 Mich. Co., 24 So. 408. 509. 154 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 161 is sought to be condemned, is sufficient averment that it is the most available to be had ; and this fact, of itself, is, in our mind, a sufficient averment of the fact of the necessity of the taking of this laud. There maj be other lands available, but if the railroad company refuses a bona fide offer to negotiate for the use of land in its right of way for a telegraph line — and it must be alleged, as has been shown, that an unsuccessful attempt to acquire this land by agreement has been made — a necessity exists for the taking of this particular land.'^- § 162. May condemn land in several counties in one proceeding. Where the railroad traverses several counties in a state, and a telegraph company is seeking to condemn its right of way for a line of wires, the same may be done in one proceeding. While the general rule is that lands belonging to different individuals residing in the same county may be condemned in one proceeding,'^ ^ yet the rule should receive a much greater indorsement where the land belongs to only one person, as in the case of a right of way of a railroad com- pany : since it would be much easier to serve notice on the latter, than it would be in case there were several owners. To our certain knowl- edge, w'e cannot say whether the question has been settled by the courts with respect to one proceeding settling the rights of several dif- ferent original landowners living in different counties, for their re- spective damages against the telegraph company for additional bur- dens to the land on which the railroad company's right of way is laid out ; but we are of the opinion there would have to be different pro- ceedings brought against the landowners in each county : however, all the landowners in one county could be made parties defendant in one proceeding. Where the proceeding is merely for the condemnation of the right of w^ay of a railroad company, traversing several counties within the same state, there is no question that the same can be done by one proceeding. The damage which the railroad company is en- titled to is for the Avhole property, and the cause of action arises in all the several counties as a unit. The county line crossing the rail- " Postal Tel. Cable Co. v. Oregon Co., 35 Am. & Eng Corp. Cas. 1; Short Line R. Co., 23 Utah 474, 65 Ifoughton Com. Council v. Huron Cop- Pac. 735, 90 Am. St. Rep. 705. per Mining Co.. 9 Am. & Eng. Corp '= State V. Central New Jersey Tel. Cas. 315. <§> 164] ON EAILKOAD RIGHT OF WAY. 155 road company's right of way does not destroy the singleness of its useJ'* § 163. Same continued — constitutional. The statutes of some states provide that telegraph or telephone companies desiring to exercise the right of eminent domain over a railroad company's right of way may institute the proceedings "in any county through which the railroad may run;" or, "all proceed- ings under this chapter must be brought in the district court for the county in which the property or some part thereof is situated." '''' These provisions do not, however, conflict with that section of the constitution which provides in effect that all civil and criminal busi- ness arising in any county must be tried in such county. The mean- ing of this constitutional clause, as was held,^° is, that actions affect- ing realty shall be tried in the county where the business or the causes arise ; or if the cause of action arises in more counties than one, then in either of said counties. The object in permitting one proceeding to settle damages arising from the condemnation of the right of w^y of a railroad company traversing several counties is to avoid trouble and expense in instituting proceedings in each of the several counties, when the property which belongs to one proprietor and is contigTious and used together for a common purpose, can be considered in one proceeding. § 164, Who may be appointed as commissioners and how. The statutes which give the power to telegraph companies the right to condemn the right of way of a railroad company for its line, gen- erally provide the manner in which the commissioners are appointed, and their qualifications. In substance, these statutes provide that on filing the petition by the parties seeking to appropriate the right of way for their use, a writ must be issued by the clerk of the court in which the petition is filed, commanding the sheriff to summon a cer- tain number of good and lawful men to appear at the office of said clerk or at or near the property to be condemned. Erom this number ■* Postal Tel. Cable Co. v. Oregon ■•Laws of Utah. Short Line R. Co., 23 Utah. 474. 6-') •« Desert Irr. Co. v. IMcTntyre. 10 Pa. 73,5. 90 Am. St. Rep. 705. Utah 368, 52 Pac. 628. 156 TELEGKAPII AND TELEPHONE COMPANIES. [§ 164 each party has the right to select a certain equal number; those se- lected by both parties should choose another party from among those summoned, and these constitute and compose the commission. The number to be summoned by the sheriff is not the same in all statutes : some provide that nine be summoned and that two be selected by each of the parties to the proceeding, who in turn, choose another; other statutes provide for not so many; still others provide for more. In other words, these statutes differ with respect to the num- ber, but the provision is always arranged so that there shall be an odd number composing the commission. Some statutes provide that the commissioners shall be appointed by the court ; but it seems to us the better policy to give the appointive power to the parties to the suit, as above shown. The commissioners should be good and lawful men ; and where the record, which the clerk is required to keep, shows that the men summoned by the clerk w^ere good and lawful men, this is sufficient evidence of that fact, although the sheriff's return does not show that they possessed those qualifications, as required by the precept under which they were summoned.'^ '^ They must be citizens of the county in which the petition is filed ; and, in case the proceed- ing is in one suit to condemn the right of way of a railroad company traversing several counties, the commissioners should be citizens of the county in which the petition is filed, and that through which the road runs. They should also be disinterested parties ; and sometimes the charter of the company provides that the commissioners should have this qualification : where this is the case, and it does not appear anywhere in the proceedings that the commissioners were disinter- ested, the same will be void and of no effect ; '^^ but if the statute, or the company's charter, should both fail to have such a provision, the qualification would still be necessary. They should be qualified elec- tors of the county in which they are then residing, and this qualifica- tion embraces the fact that they should be intelligent men, and in ?ome instances statutes require that they be property-holders. § 165. Duty of commissioners. The duties of the commissioners, who are appointed to inspect the premises for the purpose of determining the amount of damages "Louisville, etc., R. Co. v. Postal '» Madden v. Louisville, etc., R. Co., Tel. Cable Co., 68 Miss. 806, 10 So. 06 Miss. 258, So. 181. 74. *§> 166] ON RAILROAD RIGHT OF WAY. 157 which are to be awarded for the property condemned, are generally regulated by the statutes on this subject. The following may be mentioned as some of their duties after the oath has been admin- istered to them to well inquire and true assessment make of the due compensation for cash value and actual damage which the railroad company shall be entitled to receive for the appropriating of the property: They may, hear testimony of witnesses offered by either party as to the cash value of the land sought to be appropriated ; and the injury resulting to such railroad company, as the necessary and immediate consequence of the appropriation sought to be made: but in taking such testimony, none should be admitted with reference to uncertain or remote benefits or disadvantages that may or may not occur in the future ; neither should any evidence be received in re- spect to the title or ownership of the property; nor upon any ques- tion other than that of the cash value of lands sought to be appro- priated by the telegTaph company. They cannot determine the ques- tion of public use, nor the question of necessity for the taking ; except as to the amount of land or the width of the right of way."^ All of this testimony should be taken down in writing. They may sit from day to day until their investigations and other duties are completed, and after making their award, which may be done by a majority of the commissioners, they shall make and sign a report of their pro- ceedings in the premises and deliver the same to the sheriff, who shall make an immediate return thereof with the writ and his actions thereon to the clerk of the county court. There may be other duties which the commissioners are to perform, but it will hardly be nec- essary to enumerate them here. However, it may be well to make mention of another duty which is of the highest importance and im- posed upon all who are intrusted and empowered with the authority to assess damages for the appropriation of private or public property for public work : that is, they must faithfully and honesthj perform all duties imposed upon them as commissioners. § 166. Special court for. In some states, the statutes thereof provide for the proceeding to be had before a special court for that pui*pose, consisting of a justice of ""Union Pac. R. Co. v. Colorado Postal Tel. Cable Co., 30 Colo. 133. 60 Pac. 564, 97 Am. St. Pep. 106. 158 TELEGEAPH AXD TELEPHONE COMPANIES. [<§> 166 the peace and a jury. The manner in which the proceedings are be- gun is somewhat similar to that under a commissioner's court. As for instance, the telegTaph company must file its petition with the clerk of the county court in which the proceedings are begun, after which the clerk issues a summons to a justice who is to try the cause; summonses are also issued for a jury, whose names are usually drawn from the regTilar jury box, to appear at a certain time and place for the purpose of serving as jurors ; and the railroad company is also summoned to appear at that time to defend the cause. The court is organized and conducted as other courts, and only such evidence can be admitted as that which is admissible in a commissioner's court. The judgment and verdict of the court has the same effect and is en- forced as in these courts. In fact, there is very little difference be- tween the procedure of a commissioner's court and that of the special court provided for in the condemnation of a right of way of a railroad company for the lines of a telegraph company; and for this reason this particular court wull not be further considered. § 167. The award of commissioners. The award of commissioners in condemnation proceedings operates as a judgment between the parties and is governed by the same rules that are ordinarily applied to judgments of courts. Such an award, or a verdict and judgment on appeal therefrom, has the same force as an ordinary judgment rendered by a court of competent jurisdic- tion.^" It is conclusive upon the parties and privies, unless an ap- peal be taken. This is plainly the intent of the statute, for the insti- tution of this tribunal would be useless unless their estimate should be regarded as final.^^ Any other view of the question would lead to ** Charleston, etc., R. Co. v. Hughes, 2.59; McCulley v. Cunningham, 11 So. 105 Ga. 1, 30 S. E. 972, 70 Am. St. G94; New Orleans, etc., R. Co. v. Ra- Rep. 17; Postal Tel. Cable Co. v. basse, 10 So. 708; Atchison, etc., R. Louisville, etc., R. Co., 9 So. 119; Al- Co. v. Boerner, 34 Neb. 240, 51 N. W. drich V. Cheshie R. Co., 21 N. H. 359, 842, 33 Am. St. Rep. 637; Atchison, 63 Am. Dec. 212; Louisville, etc., R. etc., R. Co. v. Forney, 35 Neb. 607, 37 Co. V. People's St. R., etc., Imp. Co., Am. St. Rep. 450, 53 N. W. 585. 13 So. 308; Memphis, etc., R. Co. v. "Postal Tel. Cable Co. v. Ala., etc., Birmingham, etc., R. Co., 11 So. 642; R. Co., S So. 375. Newton v. Ala., etc., R. Co., 13 So. § 168] ON RAILROAD RIGHT OF WAY. 159 great practical difficulties, for if we could go behind their assessment, it would be impossible to draw any line beyond which we should not proceed. There would be scarcely any injury a landowner or a rail- road company could sustain which might not be said, with more or less plausibility, to be one Avhich the commissioners could not take into consideration.^^ § 168. May have new award. These statutes provide that on good cause shown, either by the tele- graph or railroad company, by motion to the circuit court of the dis- trict in which the proceedings were had, a new inquirj^ and assess- ment may be had. It is necessary that these motions should state the grounds upon which said inquiry is asked, and supported by an affi- davit of the party applying therefor, in which it should be stated that the award of the commissioners was contrary to the law and evi- dence. A new inquiry does not follow as a matter of course, either from the fact that illegal testimony was heard or that a party was wrong-fully denied the right to open and conclude the argument.®^ A copy of all the proceedings had in the case, including a copy of all the evidence, should be filed with the motion. And after the opposite party has had proper notice of said motion, the court should consider the same. If the court should be of the opinion that the commis- sioners acted upon testimony which was irrelevant, immaterial or in- competent, that the award was contrary to the law and the evidence, and that injustice has been done, a new hearing and assessment should be ordered by said court. The court being of the opinion that a new award should be had on said motion, should order a new writ to issue and another trial and assessment to be had. There are generally some limitations and conditions provided for in the statutes which must be complied with. For instance, it is provided that not more than one inquiry and assessment shall be allowed at the instance of the same party in reference to the same matter ; and, that in case an appeal be taken from the decision of the court to the supreme court, the same must be done within a limited time — generally about thirty days — but an appeal shall not hinder or delay the telegraph company from ^•Aldrich v. Cheshire R. Co.. 21 N. *» Postal Cable Co. v. Ala., etc.. R. H. 359, 53 Am. Dec. 212. Co., 8 So. 376. 160 TELEGRAPH AND TELEPHONE COMPANIES. ["§ 168 constructing and operating the lines over the right of way of the rail- road company, after it has paid or tendered the amount of award for which they are considered to be entitled. § 169. Same as in other condemnation proceedings. The foregoing rule in regard to the nature of condemnation pro- ceedings of a telegraph company for the use of a right of way of a railroad company for its lines, is equally applicable in cases brought by the same companies for the condemnation of private or public property for a right of way. Of course, there is a little variance in the rule in some cases, but this may be easily detected and guarded against. § 170. Duty the company owes to the railroad company. After a telegraph company has acquired the right to construct a line of wires upon the right of way of a railroad company, and the same has been or is being done, there are certain duties which it owes to the latter and to other companies of similar nature. For instance, the wires should be so constructed as not to interfere with the moving of trains, or any other business of the railroad company. As men- tioned heretofore, telegraph companies, when constructed upon the right of way of a railroad company, stand in a subordinate position to the latter in respect to its right of way. The poles should be of suffi- cient size and planted sufficiently deep in the ground so as not to en- danger the public ; and they should be high enough where the wires cross the railroad track as not to interfere with the running of trains. ^^ The wires should not be attached to any of the railroad company's fixtures, nor should the poles be erected upon its embank- ments; nor should the wires interfere with other telegraph lines.^^ They should take the necessary steps and precautions for the protec- tion of their property from fire and for the operation of their lines.^^ The wires should be properly insulated for their o^vn protection as well as for the public. In case the railroad company should enlarge «* Mobile, etc., R. Co. v. Postal Tel. etc., R. Co., 23 Utah, 474, 65 Pac. 735, Cable Co., 24 So. 408. 90 Am. St. Rep. 735. «= Postal Tel. Cable Co. v, Oregon, »« Postal Tel. Cable Co. v. Louisville West. R. Co., 22 So. 219. § 171] ox KAILRU.VD RIGHT OK WAY. 161 its business so that it became necessary to take more or all of its right of way, and to do so -would necessitate the removal of the line, the telegraph company should make such removal, at its own expense, after proper notice to that effect had been given. § 171. The measure of damages — extent of injury. Uie next ihiiiii' to be coii.sidered is the measure of damages to be awarded a railroad com]iany Ijy the teleizraph company for the con- struction of a line of its wires over the former's right of way. The only interest which a railroad company acquires in, and the only pur- pose to which it can use its right of way, is such, only, as may be nec- essary to carry on the railroad business ; but everything which may be necessary to do this may ho done. It cannot sell, transfer, encumb 173] Oi^ KAILKOAD RIGHT OF WAY. 163 tainiiig to railroading; on the other hand, the telegraph company be- comes subordinate to and is dependent on the rights of the former company, M'ith respect to the uses of its right of way; by reason of which their linos may be removed from the right of way of the rail- road company, if it is necessary for the latter to carry out its duties. Therefore, it seems that damages by reason of the probability of the railroad company using all of its right of way in the future for an en- largement of its railroad facilities, would be too remote and should not be allowed.^^ It is true, also, that the telegraph company ac- tually occupies a very small space of the railroad company's riglit of way, the poles occupying a space of ground, on the average, of eigh- teen inches and about one hundred and seventy-five feet from each other, and about thirty feet from the outside track. And while the wires are stretched over and cover a space all along the right of way of about eight feet, yet this can only be used by the telegraph company for the purpose of entering thereon to construct and maintain the lino ; therefore, in most instances the damages would practically be nominal; however, this would not always be the case. There is no question but that the railroad company is entitled to damages ; since, if its property should be taken for a public use without making due compensation for same, this would clearly be unconstitutional.®'* How much damages, and tho manner in which the measurement is to be made, seems to be the question most often confronted and least seldom understood. The following rule — and one we think to he clearly correct — ^has been held to be the measure of damages to which a railroad company is entitled for the use of its right of way by a telegraph company : '"The measure of damage . . . suffered by a railroad company is not the value of the land embraced within the right of way between the poles and under the wires, but the measure of damages is the extent to which the value of the use of such spaces by the railroad company is diminished by the use of the same by the telegraph company for its purposes."®^ The railroad- company can- not sell, incumber, transfer or use its right of way except as may be »» Chicago, etc., R. Co. v. Chicago, "St. Louis, etc.. R. Co. v. Postal 166 U. S. 248, 17 Siipt. Ct. .581. Tel. Co., 173 111. 508, 61 X. E. 382; »* Mobile, etc., R. Co. v. Postal Tel. Mobile, etc., R. Co. v. Postal Tel. Cable Cable Co., 24 So. 408. Co., 26 So. 370. 164 TELEGRAPir AXD TELEPHONE COMPANIES. [<^ 173 necessai-A- for the proper operation of the roads : therefore, any sup- posed market value of this land cannot be considered in determining the measure of damages to be awarded the railroad company; but the value of this space must be determined by the use to which it is applied. And in determining this last question, the value of the use of this space must be such as that for which the railroad company may apply it, and not the value of the use for which the telegraph company may apply the same ; for the value of the use in the latter may be greater than that in the former. And as the railroad com- pany cannot speculate upon the value of its right of way, it could only recover such damages for the appropriation of such space as the value of tlie use of same for railroad purposes had been decreased or diminished. ^^ § 174. Exclusive right — on railroads. There seems to be some conflict of opinion among the courts as to whether a telegraph company can acquire, either by a contract with the railroad company or by legislative grant, an exclusive right to construct a line of wires along and upon the right of way of a rail- road company ; but the great preponderance of authority is that such rights cannot be acquired. ^''^ The act of Congress ^^ granting to a telegraph company the right to construct a line of wires along post- roads did not give it the sole right to construct a line over the right of way, so as to exclude other companies whose lines would not interfere with those of the first company ; ^^ and this act prevents the tele- graph com]iany from acquiring an exclusive jirant in any manner. § 175. Contract with railroad company to that effect. This act of Congress prevents a telegraph company from acquiring the exclusive right to construct a line upon the right of way of a rail- ^'I. C. R. Co..v. Chicago, 141 111. v. Atlantic, etc.. Tel. Co., 7 Bliss (U. .509, 30 N. E. 1046; Chicago, etc., R. S.) 367. Co. V. Chicago, 149 111- 4.57, 37 N. E. New Mexico. — Uuion Trust Co. v. 78, 166 U. S. 226, 17 Sup. Ct. .581; Atchison, etc., R. Co., S X. Mex. 327. Lewis, Em. Dom., § 485. 43 Pac. 701. "" U. ilobile. etc., R. Co. v. Postal Tel. etc.. R. Co.. 03 Fed. 010. Cable Co. 26 So. 370. 166 TELEGRAPH A^^D TELEPHONE COMPANIES. [<§, 176 § 176. State legislation — no exclusive grant. Xot only is a railroad company prohibited from granting exclus- ive privileges to a telegraph company to construct a line upon its right of way, but the right cannot be gTanted by state legislation. ^*^- The right acquired from the state by the telegraph companies to do business as a corporation is in the nature of a contract, carrying with it a delegated authority to condemn private and public property for a right of way; but this inherent delegated power, does not carry with it immunity from future legislations. In other words, it does not enter into and become a part of the contract made between the state and the incorporators, whereby the latter acquires the right to construct and maintain a public telegraph line, so as to protect it un- der that clause of the constitution which prohibits the passing of o law impairing the obligation of contracts. As was very ably ob- served on this point by Cooley : "Any legislative bargain in restraint of the complete continuance and repeated exercise of the right of emi- nent domain is unwarranted and void ; and that provision of the con- stitution of the United States which forbids the state violating the obligation of contracts could not be so construed as to render valid and effectual such a bargain, which originally was in excess of proper authority." ^^^ The right of eminent domain is an element of sov- ereignty, and a contract in restraint of a free exercise of this right is not obligatory on the state, and does not fall within the inhibition of the constitution of the United States. ^^"^ The right to exercise the power of eminent domain is an inherent power and one from which the state cannot be divested, and it has the right to exercise this power over every foot of land, whether held by private citizens or corporations : so, if it could possibly grant an exclusive right to a tele- graph company to construct its lines upon the right of way of a rail- road company, it would necessarily be divested of this power. '""Pensacola Tel. Co. v. West. U. Tel 506; West Eiver Bridge Co. v. Dix, 6 Co., 96 U. S. 1, affirming 2 Woods (U. How. 531. S.) 643; Muskogee Nat. Tel. Co. v. '"* Hyde Park v. Oak Woods Ceme- Hall (55 C. C. A. 536), 118 Fed. 382. tery Association, 14 Am. & Eng. Corp. "* Cooley Const. Lim. (3 Ed.), 525; Cas. 417. Pvailroad Co. v. Railroad Co., 1)7 111. <§ 178] ON RAILROAD RIGHT OF WAY. 167 § 177. Act of Congress — prohibits exclusive right. "Any telegraph company organized under the laws of any state, shall have the right to constinict, maintain and operate telegraph lines over any part of the public domain, over and along any of the militaiy or post-roads of the United States, . . . provided, etc. i^'*'^ . . . and any such company may take from the public lands through which its line passes, the necessary stone, timber and other material for its poles, stations or other needful uses in constructing its lines." ^"° In view of these statutes, a state cannot grant to a tele- gra,ph company exclusive rights in the right of way of a railroad com- pany within the state. The statute amounts to a prohibition of all state monoplies in this particular. ^'^'^ § 178. Same continued — contra view — lines on same poles. While the above is the general and accepted rule, yet there are some courts which hold that a telegTaph company can acquire an ex- clusive privilege to construct a line of wires upon the right of way of a railroad company. ^"^^ We see no reason why a contract made be- tween a railroad and a telegraph company for exclusive rights should be void, in so far as it merely excludes competitors from the line of poles erected and used by the telegraph company,^*'® For instance, a telegraph company may be enjoined from constiiicting a line of wires upon the poles of another telegraph company which has ac- quired from the railroad a contract to have exclusive privileges along the right of way so far as may be legally done ; but there is no reason why the other company may not construct and maintain another line of poles along the track of the railroad company. ^^° A railroad com- pany, maintaining telegTaph wires, granted to a telegraph company the right to place a wire on the poles of the former, and to establish stations and do business with points off the road, the railroad com- ^•"U. S. Rev. St. § 5263. Co. v. West, U. Tel. Co., 38 Ohio St. '««U. S. Rev. Stat. § 5264. 24. '■^ Pensacola Tel. Co. v. West. U. ""> West. U. Tel. Co. v. Chicago, etc.. Tel. Co., 96 U. S. 1. affirming 2 Woods R. Co., 86 111. 246, 29 Am. Rep. 28. See (U. S.) 643. Merriweather, etc., R. Co. v. West. U. '•>« Canadian Pac. R. Co. v. West. U. Tel. Co.. 38 Ohio St. 24. Tel. Co., 17 Sup. Ct. Can. 151, 33 Am. ""West. U. Tel. Co. v. Chicago, etc., & Eng. Corp. Cas. 1; Marietta, etc., R. R. Co.. S6 111. 246. 29 Am. Rep. 28. 168 TELEGKAPII AXEV TELEPHONE COMPANIES. [§ 178 pany resendng for itself the right to local business ; it was held that the right gTanted was not exclusive, and that the railroad could put up and maintain another wire for its own use or for the use of a third party ;^^^ and it was further held, in another case, that exclu- sive privilege could be granted to a telegraph company between cer- tain points. ^^- § 179. Municipal grants — exclusive — cannot grant. As the legislature cannot grant to a telegraph company an exclu- sive franchise to construct a line of wires along the right of way of a railroad, it cannot delegate this power to a municipality, which, in turn, gTants the rights to such companies. ^^^ Courts in construing such grants made by municipalities place such constructions thereon as will prevent the exclusion of new companies. ^^^ Courts will not readily interfere at the instigation of one company occupying a street to prevent its use by another company ; but if the interference is un- reasonable and unnecessary, the company may be enjoined ;^^^ and this suit may be brought by either party being interfered with. For instance, a new company may enjoin a company already occupying the streets from unreasonably raising the height of its poles so as to interfere with the construction of a new line.-^^^ § 180. Vested rights — cannot be impaired. When the ordinance of a city grants to a telephone company the right to construct its line along certain streets on complying with certain conditions, and the same is accepted by said company which has gone to gi'eat expense in the construction of its lines, the grant is in the nature of a contract, by which the company acquires a vested right in the street, and the city is prohibited from imposing '"Marietta, etc., R. Co. v. West. U. "'Chicago Tel. Co. v. Northwestern Tel. Co., 38 Ohio St. 24. Tel. Co., 199 111. 324, 65 N. E. 329. "^California, etc., Tel. Co. v. Alta "'Chicago Tel. Co. v. Northwestern Tel. Co., 22 Cal. 398. Tel. Co., 199 111. 324, 65 N. E. 329; "^Chicago Tel. Co. v. Northwestern Northwestern Tel. Exch. Co. v. Twin Tel. Co., 199 111. 324, 65 N. E. 329, City Tel. Co., 95 N. W. 460. affirming 100 111. App. 57; Michigan ""Cumberland Tel. Co. v. Louisville Tel. Co. V. St. Joseph, 121 Mich. 502, Home Tel. Co., 72 S. W. 4. 24 Ky. L. 80 Am. St. Eep. 520, 47 L. R. A. 87n. Rep. 1676. § ISO] ON RAIMIOAI) ICIGJIT OF WAY. TIf> other conditions on such companies unless the riglit to do so is re- served- in the o-rant or hy statute-, or by the h'c:islatnre or the consti- tution. ^^"^ The municipalities having the authority to manage and control their streets may, under such powers, stipulate the manner in which the poles and the wires of telegi*aph companies shall he con- structed, and may exercise reasonable contro], over the manner in Avhich they are maintained. Thus, the city ordinances may require all telephone conii);iiii(s to erect poles of certain size an33 N. \\'. 629: Board of Alderman, 153 IMass. 200, 26 Northwestern Tel. Exch. Co. v. ilinne- N. E. 447. Compare St. Louis v. apolis, 81 Minn. 140, 83 N. W. 527, 53 West. U. Tel. Co., 148 U. S. 92, 13 S. L. R. A. 175; Bayonne v. Lord, 61 N. Ct. Rep. 485. See, also. Northwestern J. L. 136, 38 Atl. 872; Hudson Tel. Tel. Exch. Co. v. Anderson. 12 N. Dak. Co. V. Jersey City, 40 N. J. L. 303. 585, 98 N. W. 70(!. 102 Am. St. Rop 60 Am. Rep. 619; American U. Tel. 580, 65 L. R. A. 771. ITO TELEGE.^H AND TELEPHONE COMPANIES. [§ 180 and the conditions are complied with, the gi-ant becomes irrevocable unless the right to revoke is reserved. This is especially true when the conditions could not be complied with without undergoing con- siderable expense ; as that the lines shall be constructed of certain des- ignated material and in a certain prescribed manner wdien it was using a very different kind and in quite a different manner. § 181. Same continued — right reserved. Of course, the right to make any changes in the ordinances under which the license was acquired may be reserved therein; and when this is the case, the company takes the grant subject to the reserved right; but it has been held that a proviso in the ordinance to the effect that "the acts and doings of the company under this ordinance shall be subject to any ordinance or ordinances that may be here- after passed by the city," does not convert the grant into a mere revocable permit. ^^^ The reserved right may also be provided for in the state constitution or the statutes, and when such is the condition of affairs, they enter into and become a part of the grant from the state and subject the grantees to all such conditions which may be incumbered upon them by a change in the grant or license from a city. . Thus, where a telephone company has been incorporated un- der the state laws wdiich have reserved the right to make such change, alteration, or amendments in the charter of the company, and the license has been acquired to construct a line of wires upon the streets of a city and the company has gone to very great expense in the construction and maintenance of its wires ; and, in fact, it has been operating under the license for a number of years, it may, nev- ertheless, be forced by a legislative change, to that effect, to place its wires underground. -^^^ This illustration may, however, fall under the police power which will be spoken of hereafter, but we use this broad assertion in order to make ourselves understood. When this right to make such changes in the grant as may be necessary to meet the wants and demands of the times is reserved, the right acquired '«New Orleans v. Great Southern "» People v. Squire, 107 N. Y. 593, 1 Tel., etc., Co., 40 La. Ann. 41, 8 Am. Am. St. Rep. 893. St. Rep. 502, 3 So. 533. <§> 182] ON RAILROAD KH>HT OF WAY. 171 by the company is not a vested right, but is accepted subject to such reserved right. ^-^ § 182. Same continued — police power. By virtue of a delegation by the state to the municipality of its inherent police power, the latter, under such authority, may make reasonable provisions for the peace, safety and convenience of its inhabitants ; and such regiilations usually concern the use of streets by telephone and telegraph companies. So, under such power, the municipality may make such changes in the original requirements as the welfare of the public may demand ^-' For instance, in the case heretofore cited ^^- — where it was required of a telephone company doing work in a large city, with its network of cables and wires at- tached to poles, houses, buildings and elevated structures, bringing danger, inconvenience and annoyance to the public, to place these un- derground — the court, said : "These statutes [having reference to the statutes giving the city the authority] were obviously intended to restrain and control, as far as practicable, the evils alluded to, by requiring all such wires to be placed underground in such cities, and be subject to the control and supervision of local officers who could . . . . obviate, in some degree, the evils which had grown to be almost, if not quite, intolerable to the public. The scheme of these statutes was, not to annul or destroy the contract rights of such com- panies, but to- regulate and control their exercise. They did not pur- port to deny them any privileges theretofore granted, but they did require that they should be exercised with due regard to the claims of others, and in such a way that they should cease to constitute a public nuisance, and should be enjoyed in such a manner as to in- convenience and endanger the general public as little as possible." '-"See note 120. ^^'^^- (P^-) 1^3; American Tel. Co. v^ ^=1 Michigan Tol. Co. v. Charlotte, 93 Millereck Tp., 195 Pa. St. 643, 46 Atl. Fed. 11: People v. Squire, 145 U. S. 1-iO. Compare State v. Sheboygan, 114 175, 12 S. Ct. Rep. 880, affirming 107 Wis. 505, 90 N. W. 441. N. Y. 593, 1 Am. St. Rep. 894; Xorris- '"People v. Squire, 107 N. Y. 593, 1 town V. Keystone Tel., etc., Co., 15 Am. St. Rep. 893. Montg. Co. Rep. (Pa.) &, 12 York Leg. 172 TELEGKAPJl AND TELEPHONE COMPANIES. [^ 1S3 § 183. Right to extend lines. Where a telephone company acquires the license to constract and maintain its line of wires upon the street of a municipality, it may, under the right acquired, extend its lines on the streets within the city. Should the right have been acquired at a time when the munic- ipality was being earned on under the laws applicable to villages, and it is afterwards incorporated and operating under the head of cities, the same right acquired under its authority while it was operating under the first will he upheld under the other ;^-=^ and an interference with such vested rights may be enjoined at the instance of the com- pany, or of the trustees in a trust deed executed by it to secure its bonds. ^^^ '^Michigan Tel. Co. v. St. Joseph. also, Old Colony Tnist Co. v. \Yicliita, 121 Mich. 502, 80 N. W. 386, 80 Am. 123 Fed. Eep. 762. St. Rep. 520, 47 L. R. A. 87n. See, '-* Old Colony Trust Co. v. Wichita, 123 Fed. 762. CHAPTER X. LIABILITY FOR INJURIES CAUSED BY IMPROPER LOCATION, CONSTRUCTION AND MAINTENANCE. S 184. Injuries to persons on highways — in general. 185. Same continued — injury on highways. 186. Same continued — abandonment — no defense. 187. Same continued — strength and stability of poles. 188. Same continued — failure to restore line after storm. 189. Same continued — crossing highways and railroads. 190. Same continued — falling poles and other fixtures. 191. Obstruction to navigation by cable. 192. Negligence — the basis of such actions. 193. Negligence— -what constitutes. 194. Same continued — failure to perform duty. 195. Same continued — an injury sustained. 196. Evidence of negligence. 197. Contributory negligence. 198. Injuries to servants — under common law. 199. Same continued — changed by statute. 200. Must furnish suitable appliances and employees. 201. Injury to these companies. 202. Interference by other electrical appliances — in general. 203. Same continued — how operated — interference. 204. Same continued — cause of disturbances. 205. "Inductive"' electricitj^ — meaning of — effect. 206. Same continued — actions — causes thereof. 207. Same continued — decision on point. 208. Same continued — decision on "conduction." 209. Same continued — priority of time — induction. 210. Same continued — priority of time — conduction. § 184. Injuries to persons on highways — in general. Wt' have, with a gd deal of [)lt'asure, discussed at some length the dehnition of telegraph and telephone companies, their legal status, with respect to the rights of exercising the powers of eminent domain; whether or not they were common carriers; the power of alienating their franchises; and the character of their property. We have also commented upon the rights of way acquired by such com- ]ianies, giving thereunder the sources fi-oiu whieh such rights were accpiircd, as from the federal and state government, and from munic- ipalities; where the same could be exercised, under what manner and (173) 174 TELEGRAPH AND TELEPHOj^E COMPANIES. ["§ 184 conditions the same could be had, the effect they would product upon the property acquired, and then, the interest acquired — whether or not it was or could be exclusive and vested. Presuming that all tele- graph and telephone companies are comprehended under such defini- tion; that they have thus far acquired all the rights and powers nec- essary to carry on their business as public institutions and that they have complied with all the requirements necessary to be classed as corporations; we shall now comment upon their liability for inju- ries caused by all improper location, construction and maintenance of their lines along the highways, to persons using them. After this we shall say something of injuries suffered by their employees. § 185. Same continued — injury on highways. Telegraph and telephone companies must exercise reasonable care not only in the original location and construction of their lines, but must maintain them in such a manner as to prevent injuries to per- sons using the streets and highways ; and on a failure so to do, where- by injury arises, they will be liable for all injuries resulting from such breach of duty.^ In the first place, these companies must exer- ^ England.— HoWidnj v. National Tel. etc., Co., 41 La. Ann. 1041, 6 So. 797. Co., 2 Q. B. 302. Maine. — Dickey v. Maine Tel. Co., United States.— Sheffield v. Central 46 Me. 483. U. Tel. Co., 36 Fed. 164; Wolfe v. Erie Maryland. — Lee v. Maryland Tel., Tel. Co., 33 Fed. 320; Henning v. West. etc., Co., 55 Atl. 680. U. Tel. Co., 43 Fed. 131; Southwestern Massachusetts. — Thomas v. West, U. Tel., etc., Co. v. Robinson, 50 Fed. 810. Tel. Co., 100 Mass. 156; Sices v. Low- Alabama.—Fosta.\ Tel. Cable Co. v. ell, etc., St. R. Co., 179 Mass. 343, 60 Jones, 133 Ala. 217, 32 So. 500. N. E. 974. CoZorado.— West. U. Tel. Co. v.Ey- Michigan.— B.ovej v. Michigan Tel. ser, 2 Cole 141. Co., 124 Mich. 607, 83 N. W. 600; District of Columbia. — District of Keyes v. Valley Tel. Co., 93 N. W. 623 ; Columbia v. Dempsey, 13 App. Cas. Friesenham v. Michigan Tel. Co., 96 N. (D. C.) 533. W. 501; Chaflfee v. Tel., etc., Constr. /Hmots.— Cumberiand Tel., etc., Co. Co., 77 Mich. 625, 18 Am. St. Rep. 424, V. Coats, 100 111. App. 519 (no negli- 6 L. R. A. 455. gence shown). Missouri. — Larkin v. West. U. Tel. Znditma.— West. U. Tel. Co. v. Levi, Co., 82 Mo. App. 155. 47 Ind. 'i52; Brush Electric Lighting New Jersey. — New York, etc., Tel. Co. V. Kelley, 126 Ind. 220, 10 L. R. Co. v. Bennett, 62 N. J. L. 742, 42 Atl. A. 250 5 N. E. 812. 750; Chalmers v. Patterson, etc., Tel. Louisiana.— Wilson v. Great Tel., Co., 66 N. J. L. 41, 48 Atl. 991. § 185] LIABILITY FOR INJUKIIiS. 175 cise reasonable care in selecting a proper location on which to con- struct their lines, and should they carelessly place them upon prop- erty for which they have no authority, or if they once had the author- ity to place them on said property but have since lost it, they be- come a nuisance with respect to such property, and if an injury is caused thereby, the company will undoubtedly be liable for such in- jury.- When the location has been properly made, then it devolves upon them to use due care in the construction of their lines, so as not to endanger the public with any faulty material or structure, or the manner in which they are constructed. Xot only is it the duty of these companies to properly locate and construct their lines, but they must also use the same degree of care to maintain them as long as they are used as was exercised in their construction. In other words, the location of these lines must be kept properly maintained. Should the location once have been properly selected and for any reason has since been neglected or destroyed, another must be made ; and should the material out of which the lines are constructed become old, worn, decayed or cumbersome, it should be removed and the best and most up-to-date structures erected and used in lieu of these. To be more yew rorA-.— Flood v. West. U. Tel. Zappi, 93 Tenn. 3Gi), 24 S. W. 633; Co., 15 N. Y. Supp. 400; Gordon v. Cumberland Tel., etc., Co. v. Cook, 103 Ashley, 34 Misc. (N. Y.) 743; Leeds Tenn. 730, 55 S. W. 152; Cumberland V. New York Tel. Co., 64 N. Y. App. Tel., etc., Co. v. Hunt, 108 Tenn. 097, Div. 484; Sheldon v. West. U. Tel. Co., 69 S. W. 729; United Electric R. Co. 51 Hun (X. Y.).591. See, also, Ward v. Shelton, 89 Tenn. 423, 14 S. W. V. Atlantic, etc., Tel. Co., 71 N. Y. 81, 863, 24 Am. St. Rep. 614. 27 Am. Rep. 10; Leeds v. New York Texas. — Postal Tel. Cable Co. v. Tel. Co., 32 Misc. (N. Y.) App. Div. Coate, 57 S. W. 912; Wehner v. Loyer- 121. felt, 27 Tex. Civ. App. 520; South- Oregon. — Chaperon v. Portland Gm. western Tel., etc., Co. v. Ingi-ands, 27 Electric Co., 41 Oregon 39, 67 Pac. Tex. Civ. App. 400. 928. Virginia. — Watts v. Southern Bell Pennsylvania. — Pennsylvania Tel. Tel., etc., Co., 100 Va. 45, 3 Vt. Sup. Co. V. Varnau, 15 Atl. Rep. 624; Cen- Ct. 577, 40 S. E. 107. tral Pennsylvania, etc., Co. v. Wilker- West Virgiiiia. — Hanimum v. Hill, son, etc., R. Co., 11 Pa. Co. a. 417. 52 W. Va. 166, 43 S. E. 223. Rhode Island. — McDonald v. Postal Wisconsin. — Roberts v. Wisconsin Tel. Co., 22 R. I. 131, 46 Atl. 407. Tel. Co., 77 Wis. 589, 20 Am. St. Rep. South Carolina.— MUes v. Postal 143, 46 N. W. 800, Tel. Cable Co., 55 S. Car. 403, 33 S. = Southern Bell Tel., etc.. Co. v. Mc- E. 493. Tver. 137 Ala. 601, 34 So. 1020. 97 Tennessee.— Postal Tel. Cable Co. v. Am. St. Rep. 62. 176 TELEGRAPH A^'D TELEPPIOXE COMPANIES. [^ 185 explicit, the streets and liiiilnvavs should be substantially as safe after they are occupied bj these companies as they were before these lines were constructed thereon.^ Telegraph and telephone business being a legitimate one, though involving peril to others, its prosecution with the care that a man of prudence would exercise in view of its char- acter would not entail liability, for injuries which may result, not- witlistanding the exercise of such due care;* but the amount of car^' must be proportionate to the amount of danger and the liability of accident." § 186. Same continued — abandonment — no defense. It is no defense for a company to say that the property which caused the injury has been abandoned or is not in use. For instance, where a person was injured by pieces of cut wire left in the street ;** or where the telephone instruments are removed from a building, but 'West. U. Tel. Co. v. State, 82 Ma- ryland, 293, .33 Atl. 703, .51 Am. St. Eep. 464, 31 L. R. A. .512n. * Southern Bell, etc., Co. v. McTyre, 137 Ala. GOl, 34 So. 1020, 97 Am. St. Hep. 62. MVard V. Atlantic, etc., Tel. Co. 71 X. Y. 81, 27 Am. Rep. 10. " The court in rendering an opinion on this subject has the following to say: "The same rule would apply when after erections are properly made the company negligently suffers them to fall down or to be out of repair or to remain so after reasonable notice. It was as much its duty safely to main- tain as it was safely to erect. Wliether the unsafe condition was or was not in its inception the result of a cause for which the company was responsible is only material in determining when the negligence began and in what it con- sisted. If it was the result of negli- gent construction this would constitute the negligence. On the other hand if, as in this case, the unsafe condition was the result of a cause for which the company was not at all responsible the negligence consists, not in the fact that the wires fell into the street, but in the fact that they were allowed to re- main there after reasonable notice to the company and the lapse of svifficient time within which to remove them. The duty of the company in such a case it seems to us, is not at all dependent upon the nature of the cause which produced the unsafe condition. So far as the duty of removing the wires from the street was concerned it was imma- terial whether their fall was the result of natural decay, of a malicious and unlawful act of some third person, of some extraordinary force of nature, or. as in this case, of the freezing of water thrown upon the cross-bars by the fire department. Nor could the company which had placed its property on a pub- lie street under a license from the city, relieve itself of this duty by assuming tn abandon it, when from natural wear or sudden casualty it had ceased to be valuable for the purpose for which it' had been placed there." Nicholds v. City of Minneapolis, 33 Minn. 430, r)3 Am. Rep. 56. <^ 187] LIAIJILITV hOK l.\ J LlilKS. 177 instead of removing its wires as suggested by the owner, they are merely cnt loose from the instrument and their ends twisted together and left dangling in the building, so that atmospheric electricity, striking somewhere along their course on the outside, will be in- ducted into the building and there discharged to the peril of persons and property therein ;' or where one of its wires becomes broken and is allowed to remain swinging across a feed wire of a street railway company for an unreasonable time, and a person comes in contact with it when charged from the said feed wire and is injured thereby ; or if its wires are allowed to remain coiled on the highway an unrea- sonable time after the company has notice of same, and it frightens teams and causes them to run away and injure any person or prop- erty, or if they should become entangled therein to their injury; or if their abandoned property in any way causes an injuiy to persons or property, the fact of the abandonment of such property cannot be set up as a defense.^ § 187. Same continued — strength and stability of poles. The strength and stability which poles fur telegraph and telephone companies should have, depends somewhat upon the locality in which they are erected, and the number of wires they are supposed to hold. For instance, if there are a great number of wires to be supported, as is generally the ease in towns and cities, the poles should be much stronger and more firmly planted in the ground than they otherwise would have to be. The conditions of the country through which they are constructed, with respect to winds and storms, should be consid- ered, since a pole which might be very substantial in a country where there are few, if any, storms, would not be suitable in a country sub- ject to such climatic changes. While these companies are duty bound to the public to have poles with sufficient strength to withstiind the changes of the climate which are reasonably expected to be suffered in that particular region, yet they are not bound to construct or man- age the lines so as to guard against storms of unusual severity, the • Southern Bell Tel., etc., Co. v. ^\c- 200 Pa. St. 540, 86 Am. St. Rep. 732. Tyer, 137 Ala. COl, 34 So. 1020: Fitz- 50 All. Kil. gerald v. Edison Electric, etc., Co., "* Xicliolds v. Minneapolis, 33 Minn. 430, 53 Ain. Rep. 50. T. & T.— 12 178 TELEGRAPH AND TELEPHONE COMPANIES. [§ 187 occurrence of which could not be reasonably expected. They must, however, be strong enough to withstand such violent storms as may be reasonably expected or such as reasonable foresight and prudence could anticipate.^ iSTot only should the poles be sufficiently strong — and speaking on this subject, the same rule is applied to the cross- arms — at the time they are erected to hold up the wires and endure and withstand anticipated and reasonable climatic changes, but they must also be durable, or made to be such ; since, as is well known, the life of these poles is short, if these companies were permitted to al- low their poles to become weakened by decay, or, in other words, if they were not duty bound to maintain their lines, they would avoid many responsibilities. § 188. Same continued — failure to restore line after storm. Following the previous statements, it is incumbent upon these com- panies to restore and repair their lines within a reasonable time after a violent storm, and on failure to do so, whereby injury results, the company will become liable. ^^ Broken and hanging wires are dan- gerous at any time,^^ and more especially during thunderstorms. Science and common experience show tliat wires suspended in the at- mosphere attract electricity during storms, and when so suspended and not insulated are dangerous to persons who may at such times be brought in contact with them.^- True, this may be considered to be a new force of power which interfered, with the production of which the telephone company had nothing to do, but the new force of power here would have been harmless but for the displaced wires ; and the fact that the wire took on a new force, with the creation of which the company was not responsible, contributed no less directly to the injury on that account. ^=^ Setting aside the dangerous prop- »Waid V. Atlantic, etc., Tel. Co., 71 Fitch v. Central New York Tel., etc., N. Y. 81, 27 Am. Rep. 10; Billinger v. Co.. 42 N. Y. App. Div., 321. New York, etc., R. Co., 23 N. Y. 42; '^Henning v. West. U. Tel. Co., 43 Mayor v. Bailey, 2 Denio. 433; Ricker Fed. 131. V. New York, etc., R. Co., 64 N. Y. " Southwestern Tel., etc., Co. v. Rob- App. Div. 357; Southwestern Tel., etc., inson, 50 Fed. 810. Co. V. Ingrands, 27 Tex. Civ. App. 400. '» Southwestern Tel., etc., Co., v. "Southwestern Tel., etc., Co. v. Rob- Robinson, 50 Fed. 810; Gleeson v. Vir- inson, 50 Fed. 810; Cumberland Tel., ginia Midland R. Co., 140 U. S. 435, etc., Co. V. Hunt, 108 Tenn. 697. See 11 S. Ct. Rep. 859. *§ 189] LIABILITY I'OK lAJUUIES. 179 sitions arising from tliimdorstorms these wires which are left unre- paired after such storms may still be very dangerous. Thus, where a wire is left suspended near the public highway where a person would likely come in contact with it on a dark night ;^'* or even where it is left so as to interfere with travel at any time, it would then be- come a nuisance for which the company would be liable for any in- jury arising therefrom. Of course, the company must have a rea- sonable time, after a displacement of Avires caused by storms, to reach and repair the dangerous parts. What is a reasonable time depends somewhat upon surrounding circumstances. We understand that these companies have instruments in their offices by which they may be enabled to make an approximate calculation of the place at which the line is broken ; at any rate if this cannot be determined, the oper- ators surely can easily determine that the wire is either broken or out of line, by reason of the fact that messages cannot be sent over it; and as soon as the fact is ascertained, it is the duty of the com- pany to restore the line immediately. If the line should not be broken or crossed, but only hanging loose from the insulators, messages could still he sent over the line without any hindrance and without the oper- ators knowing anything about their being down. Under such circum- stances, the company may not know of the danger in such wnres, but as soon as it obtains the knowledge of the defect in the line, it is the » Cooley on Torts, 674. 00 Am. Dec. 520 ; Piollot v. Sininurs. '" Brush Electric Light Co. v. Kelley, lOG Pa. St. 05. .51 Am. Rep. 490; Aid- 126 Ind. 220, 25 X. E. 812, 10 L. R. rich V. Inhabitants of Pelham, 1 Gray A. 250n. See, also. Woods v. Boston, (Mass.) 510; Johnson v. Manhattou R. 121 Mass. 337, for an illustration of Co., 52 Hun (N. Y.) 111. the rule. '-" 1 Whart. on Ev. 5§ 29, 40; Collins *> Pennsylvania Tel. Co. v. Varnau, 15 V. Dorchester, 6 Cush. (Mass.) 397; Atl. 024. Aldrich v. Inhabitants of Pelham, 1 Gray (Mass.) 510. 190 TELEGRAPH AXD TELEPHONE COMPANIES. [<§ 197 doing so is injured by a telephone company, it is not per se con- tributory negligence on the part of the injured party.^^ In all cases M'here the defense of contributoiy negligence is set up by the com- pany, it will be a question of fact to be settled by a jury.^^ § 198. Injuries to servants — under common law. The question as to whether or not employees can recover damages from telegraph and telephone companies for injuries sustained while discharging their duties thereunder, is settled by the rule applicable to master and sei-vant.®^ Where this rule has not been changed by the constitution, it is well settled that a servant assumes the obvious risks of the service into which he enters, even if the business be ever so dangerous, and if it might easily be conducted more safely by the employer. This is implied in his voluntary undertaking, and it comes within a principle which has a much broader and more general application, and which is expressed in the maxim, Volenti non fit in- juria. The reason on which it is founded is, that whatever may be the master's general duty to conduct his business safely in reference to persons who may be affected by it, he owes no legal duty in that respect to one who contracts to work in the business as it is.^"* Thus, where an experienced lineman brought suit to recover damages for an injury sustained by the giving away of an unsound pole, it was held that telephone companies have a right to decide how their work «^Havey v. Mich. Tel. Co., 124 Mich. 6G N. J. L. 41, 48 Atl. 903; Postal Tel. 607, 83 N. W. 600. Cable Co. v. Coote, 57 S. W. 912; Gen- •^Kyes V. Valley Tel. Co., 93 X. W. eial Electric Co. v. Murray, 74 S. W. 623. 50. «*West. U. Tel. Co. v. Tracey, (52 "Fitzgerald v. Connecticut Paper C. C. A. 168), 114 Fed. 282; Bergin Co., 155 Mass. 155, 29 N. E. 464, 31 V. Southern New Eng. Tel. Co., 70 Am. St. Rep. 537 ; Rolseth v. Smith, 38 Conn. 54, 38 Atl. 888; McCarty v. Minn. 14, 35 N. W. 5C5, 8 Am. St. Rep Southern New Eng. Tel. Co., 69 Conn. 037. Compare Taylor, etc., R. Co. v 635, 38 Atl. 359, 61 Am. St. Rep. 62; Taylor, 79 Tex. 104, 23 Am. St. Rep Jenney Electric Light, etc., Co. v. Mur- 316; Scanton v. Boston, etc., R. Co. phy, 115 Ind. 566, 18 N. E. 30; Clair- 147 Mass. 484, 18 N. E. 209, 9 Am. St ain V. West. U. Tel. Co., 40 La. Ann. Rep. 733. A servant takes the risk of 178, 3 So. 625; Maryland Tel., etc., known dangers, not of others; My- Co. V. Cloman, 55 Atl. 681; Flood v. ers v. Hudson Iron Co., 150 Mass. 125. West. U. Tel. Co., 15 N. Y. Supp. 400; ]5 Am. St. Rep. 176, 22 N. E. 631. Chalmers v. Patterson, etc., Tel. Co., § 199] LIABILITY FOR INJURIES. 191 should be performed, and may employ men to work in an unsafe place, or with dangerous implements, without incurring liability for injuries sustained by workmen who know, or should have known, of the hazards of the service they have chosen to enter.''^ And, where it is a rule that a lineman should look out for his ovni safety in clinilj- ing poles, and should inspect and test poles for himself and judge of their safety, suitable appliances being at hand for such testing, an ex- perienced lineman must be presumed to have known of this custom ; and if he climbs a pole when ordered, without such test, and is injured through its rotten condition, the accident must be re- garded as due to his own fault or negligence."*' When an employee was injured in consequence of his using a defective ladder, and it appeared that he had continued using the ladder after knowing of the defect, a recovery was denied,"" § 199. Same continued — changed by statute. The statutes and constitutions of some states have changed the foregoing rule, so that the employees of telegraph and telephone com- panies have the same rights and remedies for injuries suffered by the former from the acts or omissions of such companies or their em- ployees, as are allowed by law to other persons not employees; and knowledge of the defective or unsafe character or condition of any machinery, way or appliances, shall not be a defense to any action for injury caused thereby,"^ But where the constitution provides that the employees of a certain class of corporations shall have these rights and remedies, statutes thereunder cannot enlarge "^ the mean- ing of this constitutional clause so as to embrace employees of other corporations not expressly mentioned therein."'' It seems to us that the lawmakers of our country should provide some means whereby »' McCarty v. Soutliern, etc., Tel. Co., St. Kep. 244 ; Jenney Electric Light. 69 Conn. G35. 38 Atl. 359, 61 Am. St. etc., Co. v. Murphy, 115 Ind. 560, 18 X. Rep. 62; Mclsaac v. Northampton, etc.. E. 30. Co., 172 Mass. 89, 70 Am. St. Rep, 244, »• Jcnncy Electric Light, etc.. Co. v. 51 N. E. 524. -Murphy, 115 Ind. 566, IS X. E. 30. •""McGarty v. Southern, etc., Tel. Co., <» Const. (Miss.) 193. 69 Conn. 635, 38 Atl. 359, 61 Am. St. «»Laws (Miss.) 98, p. 85. C. 66. Rep. 62; Mclsaac V.Northampton, etc.. '"Ballard v. Mississippi Cotton Oil Co., 172 Mass. 89, 51 N. E. 524, 70 Am. Co., 34 So. 533. 192 TELEGRAPH AXD TELEPHONE COMPANIES. [§ 199 the honest, faithful aud hardworking laborer would be protected for injuries Vistained while in the discharge of his duties. He is gen- erally of a class of people to whom work becomes a matter of necessity and without which the w^ants, cares and comforts of a home would be fearful to behold and touching to the inner feeling of the observer. On the other hand, these companies must have their business carried on, regardless of the risks and dangers necessarily to be undergone, and this must be done by their employees. If then, he is to make a test and examination of the strength, soundness and safeness of the poles, wires, cross-arms and other material and appliances, before he would be exonerated for any negligence on his part, and demanded that the requisite time be allowed him for that purpose, he would never have been employed.'^ ^ Therefore, as said before, it seems to us that there should be some remedy at the common law, whereby em- ployees of these companies should be protected for injuries sustained while performing their duties at such hazard as they are almost forc- ed to undergo. § 200. Must furnish suitable appliances and employees. ^Notwithstanding the fact, that, by the common-law rule, the em- ployees of telegraph and telephone companies assume all risks and dangers to which they may be subjected while in the discharge of their duties, yet these companies must furnish them with such ap- pliances for their work as are suitable and such as may be used with safety.'''^ This, by implication of law, is a stipulation in every con- tract for service ; and if the employee is injured by reason of defec- tive appliances placed in his hands by the company, it is liable un- less it can show that it has used due care in the selection or manu- facture of the same.'''^ Thus, where plaintiff's intestate, while em- "Clairain v. West. U. Tel. Co., 40 Atl. 462, 41 L. R. A. 200, 66 La. Ann. 178, 3 So. 625. Am. St. Rep. 133; Numedy v. Chase, ^^Clairain v. West U. Tel. Co., 40 La. 119 Cal. 637, 53 Pae. 33, 63 Am. St. Ann. 178, 3 So. 625; Portance v. Le- Rep. 153; Chicago, etc., R. Co. v. Ma- high Valley Coal Co., 101 Wis. 574. 77 roney, 170 111. 520, 48 N. E. 953, 62 N. W. 875, 70 Am. St. Rep. 932 ; Ell v. Am. St. Rep. 396 ; McMahon v. Ida Northern Pac. R. Co., I North Dak. Min. Co., 95 Wis. 308, 60 Am. St. Rep. 336, 48 N. W. 222, 26 Am. St. Rep. 117, 70 N. W. 478. 621, 12 L. R. A. 97n; Chameon "Warner v. R. Co., 39 N. Y. 468; V. Sanford Co., 70 Conn. 573, 40 *§> 201] LIABILITY lOR IXJUfilES. 193 ployed in putting up telegraph wires for defendant company, fell from a telegraph pole and was killed, through failure of defendant to. furnish the means and appliances required for the safe and effi- cient performance of such work, defendant was held liable in dam- ages ;'^^ and where an employee was injured by a sudden turning on of the current, or by a ''live" wire sagging upon a ''dead" one, the company was held liable J ^ The company cannot be relieved from re- sponsibility by the fact of its having had no knowledge of the defect in the machinery or appliances, unless it can clearly show that reason- able care was exercised in the selection or manufacture of the same.''' It is the duty of these companies to furnish the most efficient ap- pliances to, and exercise the same degree of care with the employees to prevent them from being injured, where the common law rule has been changed by statutes — whereby they have the same right and rem- edies for such injuries as other persons. The rule also applies to fur- nishing a sufficient number of skilled employees who can do their M'ork carefully and properly.'^'^ § 201. Injury to these companies. While telegraph and telephone companies must use due care in the operation of their linos to protect the public from injury, the public, •on the other hand, must not commit acts which would interfere with, in any manner, the former's business. In many states there have been statutes passed Avhich subject any person to indictment who in- Chicago R. Co. v. S^veet, 49 111. 202; Light Co., 73 ^lich. 2GS, 41 X. ^^■. Northcates v. Bochelder, 111 Mass. 322; 269. lamp Point Mfg. Co. v. Ballow, 71 111. '«Haydon v. Sniithfield ^Mfg. Co., 20 418; Naves v. Smith, 28 Vt. 39. Conn. 548; Naves v. Smith, 28 Vt. 59; ■*Claiiain v. West. U. Tel. Co., 40 Kyan v. Fowler, 24 N. Y. 410; Cayzer La. Ann. 178, 3 So. 625. v. Taylor, 10 Gray (Mass.) 274; Sea- " Colorado Electric Co. v. Lubbers, ver v. Boston, etc., R. Co., 14 Gray 11 Colo. 505, 7 Am. St. Rep. 255; War- (Mass.) 466; Wonder v. Baltimore, mell V. Maine, etc., R. Co., 79 Me. 397, etc., R. Co., 32 Mo. 411; Buzzell v. La- 10 Atl. 49, 1 Am. St. Rep. 321. See conia Mfg. Co., 48 Me 113; Flike v. note to Smith v. Peninsular Car Boston, etc., R. Co., 53 N. Y. 549 ; Mad Works, 1 Am. St. Rep. 548; Pcidmont River, etc., R. Co. v. Barber, 5 Ohio Electric Illuminating Co. v. Patterson, St. 541. 84 Va. 747, 6 S. E. 4; Krautz v. Brush "Moss v. Pac. R. Co., 49 Mo. 167: Electric Light Co., 82 Mich. 457, 47 N. Skipp v. The E. C. R. Co., 9 Exch. 22:1. AV. 787; Weiden v. Brush Electric r. & T.— 13 19J: TELEGKAPH AXD TELEPHOA'E COMPAXIES. [§ 201 tentionally or negligently in anywise obstructs, injures, breaks, or destroys, or who in any manner interrupts the communications made between any two points on the lines, or who shall carry away, injure or destroy any of the posts, wires, insulators, or fixtures, or things belonging to such companies."^ ^ Independent of these statutes, any ])erson or corporation willfully interfering with or destroying such lines, may be held liable for trespass."^ ^ § 202. Interference by other electrical appliances — in general. The operation of these companies may be interfered with by other electrical appliances, such as electric railway and electric light com- panies, when they are all on the same streets and their lines are run- ning parallel. There has been considerable litigation arising on the subject, where one attempts to enjoin the other from using the streets in such a manner as to interfere with the working of the machinery of the light company. The operation of these companies is somewhat similar and in order to fully understand the working of each, so that the reader may see where the business of one may be seriously inter- fered with by that of another, and whereby the same may be rem- edied or prevented, it might be well to discuss the manner in which these companies are operated. While the business of an electric light company is not one and the same as that of an electric railway com- pany, yet the means of producing the lights — by an electric current passing over the line wire from the motor and returning thereto by another wire — is manipuated in almost the same manner as that by which electric cars are propelled. To have a clear understanding of the manner in w^hich the latter is operated will be sufficient to ex- plain how telephone and telegraph companies may be interfered with, by either or both of these companies, and how the same may be pro- tected. ^« Davis v. Pacific Tel., etc., Co., 127 '» Sub-Marine Tel. Co. v. Dickson, 15 Cal. 312, 59 Pac. 698, construing Pen. C. B. N. S. 7.5i), 109 E. C. L. 759; The Code Cal.§591; CodeMiss. 1892, §1300; Clara Killane, I.. 1!. 3 A. & E. 161, 19 Shannon's Anno. Code Tenn. 1896, VV. R. 25, 39 L. J. Adii. 50; Earns- §1839; Southwestern Tel., etc., Co. v. v.orth v. West. U. Tel. Co., 6 X. Y. Priest, 72 S. W. 241, construing Pen. Supp. 735; American U. Tel. Co. v. Code Tex. art. 784; West. U. Tel. Co. Harrison, 31 X. J. Eq. 627. v. Bullard, 65 Vt. 634, construing Stat! V^t. 1894, § 4249. § 204] LIABILITY FOR IXJUKIKS. 1 'J5 § 203. Sam" continued — how operated — interference. Telephoni.' and telegraph companies have wires running out from some central office or offices, to their subscribers and other sub-offices, where the same are connected to a receiver. There is another wire at the receiver which connects this with the ground wire or the earth, W'hichever it may be. This gTounJ wire, when one is used, is con- nected with the central office, thereby making a complete circuit. These ground wires are not used extensively except in cities, but the earth is used instead. In either instance, there is a complete circuit made and the messages are transmitted over these wires, partly, by means of electricity. There are, so far, two methods by which elec- tric raihvay cars are operated, with respect to this circuit: First, the electricity, which is produced at the poAverhouse, is conducted around the line on wires supported by some means immediately over the center of the track. It is then conducted from the wire to the motor on the car by means of a bar or trolley connecting the latter with the wire. It then escapes through the wheels to the track, and thence over the track back to the powerhouse, thereby making an entire circuit. This method is called the single-trolley system. The other way is the same as this, with this exception, viz: instead of the track and the ground being used for the return circuit, there is another wire placed underneath the surface, for the purpose of connecting the circuit. This is the double-trolley system. The first of these is considered by experienced electricians to be the most simple, convenient and cheaper of the two ; and for these reasons it is the system most generally used. It wnll be seen that there is a complete circuit made by all of these companies, having the central office or the pow'erhouse as the begin- ning of the circuit, and at which i)oint the current of electricity is transmitted to the circuit: and, it is the current of the circuit of each of these companies which may l)e interfered with. § 204. Same continued — causes of disturbances. The telephone, in order to be successfully operated, require? a del- icate, sensitive electric current with accurate pulsations, and Avlien- ever this current is strengthened, or its pulsations interfered with by the addition of electric force from extrinsic sources, its usefulness is 196 TELEGKAPH AND TELEPHONE COMPANIES. [<^ 204 impaired or destroyed. The interfering currents cause a buzzing sound, which almost dro^ras the voice and makes the annunciators ring, thus materially interfering with the successful working of the apparatus at the central office. Ihese companies, most generally, when there are not many interferences caused by other companies, use the gi-ound as a return circuit.^" At the end of the line or at the receiver, the wires are placed in the gi-ound or they are attached to water or sewerage pipes, which conducts the escape current to the central office. This current may be interfered with on the wires and poles above the ground, by powerful currents conveyed over the wires employed by electric light and railway companies and is produced by ''inductive" electricity, or it may be interfered with on the return cir- cuit underneath the ground by ''conduction" or "leakage." It shall be our pleasure to discuss, separately, the interferences which may be caused on either, and how the same may be remedied. § 205. "Inductive" electricity — meaning of — effect. "Inductive" electricity is the attraction which the feed wires of these companies have for one another. The feed wires of electric light and railway companies are always heavily charged with electri- city when the said companies are operating their plants; and when there is a telephone or telegraph wire stretched near to and parallel with the wires of these companies, there is a tendency of the more heavily charged feed wire of such companies to be attracted toward the wire of the telephone company. The induction may be great or small, and the greater the amount necessarily produces a greater in- ductive force. The amount of induction depends upon variation in current, the distance of the wires from each other, and the length of parallelism of the wires. The current upon the trolley wire and the feed wire of the railway is quite variable in quantity and intensity, owing to the drain upon the store of electricity by the moving and stopping of the car. !N"or is the electricity, as generated, exactly un- iform in its flow from the dynamo. The result is, whenever the telephone wire is parallel with the trolley wire and feed wire, there is induced into the telephone wire a current whose variation' corresponds "^ Cincinnati, etc., R. Co. v. City, etc., St. Rep. 559, 12 L. R. A. 534, 27 N. E. Tel. Assn., 48 Ohio St. 390, 29 Am. 890. § 20G] LTAniLITY FOR IXJURIES. 197 with the variation of tho c4ectrical current on the electric railway wires, thereby producing such disturbances as render the use of the telephone plant impracticable. § 206. Same continued — actions — causes thereof. The actions which arise under these interferences or obstructions to the business of telephone companies by electric light and railway companies, is by a bill of injunction, or an action for damages. In order to successfully maintain a bill of injunction, there should be al- leged therein the fact that the use of the telephone line is being in- terfered with, or the transmission of messages over the same has been and is being obstnicted, or is .being disturbed by the intense and varying electric current passing over the feed wire of these companies which is running near to and parallel with the line wire of the tele- phone company. It must be further shown, in order for the telephone company to recover damages or to sustain a bill of injunction,that the loss caused by the conflict of poles and wires is because of defendant's fault or want of care. The loss of induction, unlike that caused by conduction, occurs upon and within the streets and is a direct and immediate result of the occupation and use of the streets, by a tele- phone company, simultaneously with these other companies, and would be obviated or remedied by the withdrawal of either company from the streets. It cannot be said that the rights of one to use and occupy the streets are greater tlian ihosc of the orhcr. nor rliat one is subservient to the other, for they are both quasi-public corporations, created by the same person and exercising their rights and privileged by permission of the same city authority. They both serve import- ant public functions, and are equal candidates for public favor. Their respective rights to occupy and use the streets are co-ordinate. It is further clear that no conflict can occur between these companies in the use of the streets, if each shall remain in its proper sphere and exercise its power with that careful and prudent regard for the rights of others which the law enjoins.®^ It, therefore, follows that the electric railway or light companies must be guilty of negligence, or a want of care, before they will become liable. If they, for in- « CumlxTlaiul Tel., etc.. Co. v. I'liiti-d Electric Kiuhvay Co.. 42 Fed. 273. 198 TELTlGKAPir AND TET.EPIIONE COMPANIES. [§ 200 stance, have their feed wire suspended in a proper manner over a track, or on the opposite side of the street to that on which the tel- ephone wire is strung, the company will not be liable. In other words, the telephone company must exercise due care toward these companies and if it obstructs the streets in anywise as to prevent these companies from carrying on their business uninterruptedly, it cannot maintain this suit. § 207. Same continued — decision on point. The court, in one of the most able decisions ever rendered in sus- taining an injunction suit against electric railway companies from using its feed wire — the same having been constructed immediately over its track — in such a manner as to interfere with the use of the streets, by a telephone company, has the following to say : "The loss caused by conflict of poles and wires is imputable to defendant's fault or want of care. Having power to have avoided this conflict with- out injury to its plant, it was the defendant's duty to do so. The con- flict was the result of defendant's unnecessary act. On the other hand, the loss by induction cannot be imputed to any fault or neg- ligence of defendant. Its plant was, as regards this matter, ]iroperly constructed and operated. Defendant could not obviate induction without abandoning the streets where it occurred. Induction is such obstruction of the streets as plaintiff is forbidden to create. The objection that induction is not an obstruction of the streets ^sticks in the bark.' True, it did not arrest the construction and operation of defendant's plant, but that results not for the reason that induction is not an obstruction, but because defendant was sufficiently powerful to disregard and override it. A child upon defendant's track, in front of its moving car, is not in a strict sense an obstruction ; but who will say that the fact does not seriously interfere with defendant's free and unembarrassed use of the street ? The constraint caused by liability for legal penalties, if the child is crushed, operates as a very substantial obstruction. Defendant must stop the car or incur serious liability. It is vain to say that induction is not an obstruction if defendant shall be held for the unavoidable damage caused by it. It is true, induction implies no physical contact of the two plants, but is a direct and immediate result of plaintiff's use and occupation § 208] LIABILITY FOR IX.IURIES. 199 of the streets. Tlic ]»rcsence of plaintiff's poles and wires upon the street causes induction and their removal would obviate it. The plain- tiff cannot recover for the loss sustained from induction. It results from its unlawful obstruction of defendant's use of the streets. "**- § 208. Same continued — decision on "conduction." The same court draws a distinction between the liability of these electric railway companies for the interference of the use of the streets by telephone companies by ^'induction" and "conduction," and shows how they may be liable for "conduction." The court says : "Is defendant liable for loss sustained by plaintiff from the effect of conduction ? The loss by conduction, unlike that caused by induction does not result from plaintiff's obstruction of defendant's use of the streets for an ordinary purpose. This interference would occur and cause precisely the same loss to plaintiff, and in precisely the same manner. If plaintiff had no poles or wires upon the street, loss by conduction does not result in the slightest degree from the presence of the plaintiff's poles and wires upon the streets, and would not be to any extent remedied by their removal. The contact between the two plants, caused by conduction and the consequent injury, does not occur upon or within the streets or through the medium of plaintiff's poles and wires located upon the streets, but upon plaintiff's private property and that of its subscribers, lying outside of the streets and within half a mile on either side. The fact of plaintiff's occupation and use of the streets, a controlling factor in determining defendant's inability, for loss by induction, is irrelevent in the consideration of the question of defendant's liability for loss by conduction. This question must be determined as if the plaintiff had no poles or wires upon the streets. The proviso in the statute of 1885, forbidding plaintiff' by the use of the streets to obstruct their ordinary use, has no application to the question under consideration. That statute lim- its plaintiff's use of the streets, but it does not abridge its right to private property outside the street and wholly detached from their use. That statute confers upon plaintiff the use of the streets and limits that use. It does not confer upon plaintiff any rights of pri- vate property outside the streets, and does not undertake to abridge •"Id. 200 TELEGRAPH AND TELEPHONE COMPANIES. [§ 208 anv sucli rights. The proviso pertains wholly and exclusively to the nse of the streets. The defendant's claim to the dominant use of the streets, if conceded', has no place in the consideration of this question involving- the rights of the parties outside the streets."^" § 209. Same continued — priority of time — induction. The right of relief by injunction depends in a measure upon the fact as to whether the telephone company has a prior right of occu- pancy to the space covered by its wires as against the railway and electric companies. In a case where a telephone company sued for an injunction to restrain the electric light company from occupying certain streets, and from placing its wires too close to its own, there was some contest as to which had the prior right of occupancy. The bill alleged that incandescent light wires could not Idc operated par- allel to telephone wires at a less distance than three feet, nor arc light wires at a less distance than two feet, without seriously interfering with the telephone, and that if the arc light wires crossed the telephone wires at a less distance than ten feet without being securely boxed, there was danger of accident. The trial court enjoined the light company from using, for arc light purposes, any wires running parallel and on the same side of the street with the telephone wires, and from using for incandescent light purposes any wires running parallel with the telephone wire on the same side of the street within a less distance than eight feet, and in any case for a distance greater than three hun- dred feet. It was further provided in the decree that, in all cases, wires must cross each other at an angle of not less than forty-five de- grees, and a strong guard wire should be suspended between the wires of the two companies to prevent the upper wires from falling on the lower. The injunction was confined, however, to those streets in which the telephone company had a prior right of occupancy, and was refused as to streets in which the electric light company had been the first occupant. The court also enjoined the telephone company from placing its wires too near those of the light company. The decision of the trial court was sustained on appeal, except as to the injunction against the telephone company; that part of the injunction was set "Id. § 210] LIABILITY FOR INJURIES. 201 aside on the ground that the answer had asked for no aflSrmative re- lief, and that it did not appear that the telephone wires could exert the slightest inflncncc upon those of the light company.®^ § 210. Same continued — priority of time — conduction. There is a different rule held by the courts with respect to the pri- ority of time in the occupancy of streets where a telephone company attempts to enjoin other companies for injuries caused by "con- duction" or "leakage." In a case on this point it appeared from the evidence that the use of the metallic circuit by either company would prevent any interference between the two currents. The tel- phone company could use such a circuit by the adoption of a safe and comparatively inexpensive device, while the railway company could do so only at a great expense and annoyance. The question was practically as to which company should undergo the expense of such a circuit. The denial of the injunction was placed by Brown, J.. upon the following grounds : "First, that the defendants are making lawful use of the franchise conferred upon them by the state in a manner contemplated by the statute, and that such act cannot be con- sidered as a nuisance in itself. Second : That in the exercise of such franchise, no negligence has been shown, and no wanton or unneces- sary disregard of the rights of the complainant. Third: That the damages occasioned to the complainant are not the direct consequence of the construction of defendant's roads, but are incidental damages resulting from their operation, and are not recoverable."*'^ 8* Nebraska Tel. Co. v. York Gas United Electric E. Co., 42 Fed. 273: Light Co., 27 Neb 284, 43 N. W. 126; Hoyt v. Jcffers, 30 Mich. 181; Hudson West. U. Tel. Co. v. Champion Electric River Tel. Co. v. Watervliet Turnpike. Light Co., 14 Cin. Wkly. Bull. 327. etc. Co., 135 N. Y. 393, 17 L. R. A. 674. "Cumberland Tel., etc., Co. v. 31 Am. St. Rep. 83S. CHAPTER XI. REGULATION AND CONTROL. § 211. Federal control. 212. Same continued — concurrent state rights. 213. Telegraph lines over subsidized railroads. 214. State control. 215. State may control the construction. 216. Same continued — taxing power. 217. Same continued — penalty for delay in delivering messages 218. Same continued — the Pendleton case — what embraced. 219. Same continued — must fall within meaning of statute. 220. Same continued — offices established — must keep open. 221. Same continued — other regulations. 222. Same continued — limitation — impairment of contract. 223. Regulate charges. 224. Same continued — constitutionality of statutes. 225. Same continued — right to fix charges — reason. 226. Same continued — cannot evade statutes — charged in two items — patents. 227. Statute rates must be reasonable. 228. As to interstate messages — cannot fix maximum charges. 229. Must furnish services notwithstanding charges. 230. Municipal control. 231. Powers limited — generally specified. 232. Power to revoke franchise. 233. Cannot impose tax license — not police power. 234. Cannot regulate rate — without express authority. § 211. Federal control. • Where telegraph and telephone companies extend into several states, they become instruments of interstate commerce, and messages sent over these lines are commerce between the states,^ subject to the control of Congress, so far as regards matters connected with com- merce among the states or with foreign countries.^ Although the fact that a telephone company has extended its lines through diffei:- ^ In re Pennsylvania Tel. Co., 48 N. State 348, 46 Am. St. Eep. 578, 24 L. J. Eq. 91, 20 Atl. 846, 27 Am. St. Rep. R. A. 724, 37 N. E. 710. 462; Central, etc. Tel. Co. v. Falley, ^ Galium v. District of Columbia, 15 118 Ind. 194, 19 N. E. 604, 10 Am. St. App. Cas. (D. C.) 529. Rep. 114; Dailey v. State, 51 Ohio (202) <§> 212] KEOULATIOX AND CONTROL. 203 ent states, and is engaged in interstate commerce, will not relieve it from the operation of state statutes ui>on business conducted wholly within the state; nor justify the refusal of such a company to furnish the best telephonic connections and facilities to })ersons doing business in such state, on the terms prescribed by such statute ; ^ nor will a state be prohibited from enacting laws subjecting such companies to penalties for acts of negligence occurring entirely within the limits of that state, although such acts may be committed in the delaying of the transmission of messages to points in other states.** The object of vesting the power to regulate commerce in Congress was to secure, with reference to its subjects, uniform regulations, where practica- ble, against conflicting state legislation. Such conflicting legislation would inevitably follow with reference to telephonic communications between citizens of different states, if each state was vested with the power to control them beyond its own limits. The manner and order of the delivery of telegrams, as well as their transmission, would vary according to the judgment of each state. Thus, the Indiana statute requires telegrams to be delivered by messengers to persons to whom they are addressed, if they reside within one mile of the telegraph station, or within the city or town in which such station is ; and the requirement applies according to the decision of the supreme court in this case when the delivery is to be made in another state. Other states might consider that the delivery by messengers to a per- son living in a city many miles in extent, was an unjust burden, and require the duty within less limits; so, if the law of one state could prescribe the order and manner of delivery in another state, the re- ceiver of the message would often find himself incurring a penalty because of conflicting laws, both of which he could not obey. Con- flict and confusion would only follow the attempted exercise of such a power. ^ § 212. Same continued — concurrent state rights. The power to regulate commerce is manifestly a dormant power until brought into activity. It covers a wide field and embraces many » Central, etc., Tel. Co. v. Falley. 118 194, 22 S. E., 18G. Til Am. St. Kep. 68, Ind. 194, 10 Am. St. Rep. 114, 19 N. 30 L. R. A. 158. E. 604. 'West. U. Tel. Co. v. Pendleton, 122 *West. U. Tel. Co. v. Howell, 95 Ga. V. S. 347, 7 S. Ct. Rep. 1126. 204 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 212 subjects, and to the extent that Congress fails to exercise it in any given case, it seems to be conceded that it is a concurrent power and may be exercised by any state.*^ Until this dormant power of the constitution is awakened and made effective by appropriate legisla- tion, the reserved power of the state is plenary, and its exercise in good faith cannot be made the subject of review by the United States Supreme Court. "^ Thus,the states may require foreign telegraph com- panies to have a known place of business within their jurisdiction, and an agent or agents thereat on whom summons may be served ; or they may require a prompt delivery of messages received from another state and impose a penalty for a failure to do so f or they may pro- vide a limited time within which suits must be brought and a notice of same given prior thereto.^ Because the company is a foreign cor- poration and carrying on interestate commerce, will not deprive the state of any of its police regulations. ^° § 213. Telegraph lines over subsidized railroads. In order to have connection between the East and the West, Cong- ress granted rights of ways to the Pacific railroads and aided and assisted them in the construction of their roads. ^^ In connection ^vith their railroad business, Congress also granted to them fran- chises for the construction and operation of telegraph lines along their roads. Congress, nevertheless, has control over these lines, and the railroads cannot evade the federal control of these lines by any agreement with a telegraph company, ^^ as they may be compelled to so operate their lines as to give equal facilities to all, without any discrimination in favor of any person or corporation ; and to receive « Steamship Co. v. Joliffe, 2 Wall. " U. S. v. West. U. Tel. Co., 50 Fed. 450; American U. Tel. Co. v. West. U. 28. See, also, U. S. v. Union Pac. R. Tel. Co. 42 Am. Rep. 90. Co., 160 U. S. 1, 16 S. Ct. Rep. 190; ■'Oilman v. Philadelphia, 3 Wall. U. S. v. Northern Pac. R. Co., 120 713. Fed. 546. *Gray v. Tel. Co., 108 Tenn. 39, 64 '^U. S. v. Union Pac. R. Co., 160 U. S. W. 1063, 91 Am. St. Rep. 706, 56 L. S. 1, 16 S. Ct. Rep. 190. See, also, U. R. A. 301n. S. V. Union Pac. R. Co., 163 U. S. 710, "Burgess v. West. U. Tel. Co., 92 Tex. 16 S. Ct. Rep. 1206; U. S. v. West. U. 125, 71 Am. St. Rep. 833. Tel. Co., 160 U. S. 53, 16 S. Ct. Rep. "West. U. Tel. Co. v. Mississippi R. 210. Co., 21 So. 15. <§ 214] EEGULATIO^f ANL> CO.NTKUL. 205 any exchange business with connecting lines. ^^ One of the require- ments imposed upon these companies as to the franchise to operate a telegraph line along their roads, is that they cannot alienate the franchise ; and it has been held that this right of control extends to any telegraph company exercising these franchises under an agree- ment with the railroad company. ^^ § 214. State control. Under its inherent power of police regulation over persons and property within its limits, the state may regulate the manner in which telegraph and telephone companies shall be constructed and main- tained within its borders. The police power is one of the fundamental principles upon which the government was founded, and is absolutely essential to its general welfare. Upon this power rests the peace and tranquillity of all society, the enjoyment of health, the upbuilding of good morals, and the security and protection of property. ^^ Ko government can advance in civilization, in wealth, and in influence without an enforcement of these powers. When any corporation ac- quires a franchise for the purpose of carrying on a corporate busi- ness within a state, it is accepted subject to the police power. By giving the franchise, the state did not abrogate its power over the pub- lic highways ; nor in any way curtail its power to be exercised for the general weUiire of the people; nor do the states absolve themselves from their primary duties to maintain the highways of the respec- tive states in a safe and proper condition for public travel and other necessary purposes. ^° Neither can this power be alienated, surren- dered, nor abridged by the legislature by any grant, contract, or del- egation whatsoever; because it constitutes the exercise of a govern- mental function without which it would become powerless to do those things which it was especially designed to accomplish.^' It, therefore, follows that under its inherent power of police regulation, the state "U. S. V. Xortlioin Pac. E. Co.. 120 '"American Rapid Tel. Co. v. Hess. Fed. 546. 125 N. Y. G41, 13 L. R. A. 454n, 21 " U. S. V. West. U. Tel. Co., 50 Fed. Am. St. Rep. 764 : Sheldon v. West. U. 28; U. S. V. Union Pac. R. Co., 160 U. Tel. Co.. 121 N. Y. 697. S. 1, 16 S. Ct. Rep. 190; U. S. v. '• Peoplo v. Squire. 107 N. Y. 593, 1 Northern Pac. R. Co., 120 Fed. 546.' Am. St. Rep. 803; Presbyterian Church " Cooler on Const. Limitation. 572. v. Xcw York City, 5 Cow. 540. 206 TELEGKAPII A^"D TELEl'IIOA'E COMrA.XlES. ['§ 214 may regulate the manner in which domestic telegraph and telephone companies shall be constructed and carried on within its borders ; and it may also regulate and control, to a certain extent, foreign corpor- ations doing business within the state. While the telegraph and tel- ephone companies ma}-, and generally do, fall under the laws pertain- ing to interstate commerce, and therefore regulated by Congress, yet the states may prescribe certain conditions for them to perform before they will be protected and recognized under the state laws. For in- stance, a foreign telegraph company, which has failed to locate an office and place an agent thereat, on whom a summons may be served, in a state whose constitution provides that such must be done, will not be protected in an injunction suit instituted by such a company.^'' They cannot be prevented from coming into a state — and they may, upon the principles of comity, do business therein, unless it is in conflict with the laws thereof or unjustly interferes with the rights of some of its citizens — yet they will not be protected by the state laws.^^ § 215. State may control the construction. The state in granting to a telephone company a license to construct its line upon the streets or public highways does not relinquish its control over the streets and highways ; nor does it divest itself of the right to exercise the police power in any way. But even if the state had granted some interest in the streets, it could nevertheless regu- late the size and location of the poles, the height of the wires, and their location ; and should they become an obstruction and a nuisance, the state could remove them or require them to be placed under- ground.^*^ The company may be required to furnish a map showing the street or highway desired to be used and designate thereon the general course of the underground conduit to be used, with a descrip- tion of its size and depth.^i The primary and fundamental object « American U. Tel. Co. v. West. U. Chieaoo, ](; Fed. 309; West. U. Tel. Co. Tel. Co., 67 Ala. 26. 42 Am. Rep. 90. v. N. Y., 38 Fed. 552; Connell v. West. i»Id. U. Tel. Co., 108 Mo. 459. =« American Rapid Tel. Co. v. Hess, =' People v. Squire. 107 X. Y. 593. 1 125 N. Y. 641, 13 L. R. A. 454n, 21 Am. St. Rep. 893. Am. St. Rep. 764; ]Mut. U. Tel. Co. v. § 216] KEGULATIOX AND CU^'TliOL. 207 of all public liigliways is to furnish a passageway for travelers iu ve- hicles, or on foot, through the country.-- They were originally de- signed for the use of the travelers alone, but in the course of time and in the interest of the general prosperity and comfort of the public, they have been put, especially in large cities, to numerous other uses, and yet such uses have always been held to be subordinate to the original design and use.-^ It is, therefore, the duty of the governmen- tal power to secure a safe highway for the protection of life ; and any control over the construction and maintenance of these companies which will enhance the interest of good morals and health, and protec- tion to life, can and ought to be exercised under the police power. "The state may exercise any other general control in the construction of these companies as the public interest may require. The subjects upon which the state may act are almost infinite, yet in its regulations with respect to all of them, there is this necessary limitation: the state cannot thereby encroach upon the free exercise of the power vested in Congress by the constitution. Within that limitation it may undoubtedly make all necessary provisions with respect to the con- struction of poles and wires of telegTaph companies in its jurisdiction which the comfort and convenience of the community may require."-^ § 216. Same continued — taxing power. The state, under the police power, may tax a foreign telegraph company doing business within its borders. This brings us to a sub- ject of much interest and one to be further discussed — that is, whether such companies fall within the laws of interstate commerce, and thereby to be controlled by Congress; or whether the state can have such control. Congress is vested, to a limited extent, for special pur- poses, with the exercise of the police power. One of these special purpose?, in whicli it may exorcise this right, is the power of regii- ^Bouvier's Institute, §442. =*West. U. Tel. Co. v. Pendleton. 122 =n'eople V. Squire, 145 U. S. 175, 12 U. S. .347. 7 S. Ct. Rep. 112G. See. aUo. S. Ct. Rep. 880, Aff'g. 107 N. Y. 593, 1 Coolcy v. Un-.u;] oi Port Wardens. 12 Am. St. Rep. 893; Allentown v. West. How. (U. S.) 2!)l) : West. U. Tel. Co. I'. Tel. Co., 148 Pa. St. 117, 23 Atl. v. Massachusetts, 125 U. S. 530, S S. 1070; West. U. Tel. Co. v. Philadelphia. ((. Rep. 9(51; American V. Tel. Co. v. 12 Atl. 144: Forsvthe v. Baltimore, etc. West. U. Tel. Co.. 1 Dill, on Mun. Corp. §245. Corp. (3 Ed.) §8!): St. Louis v. Mc- ™ Taylor v. Carondelet, 22 Mo. 110; Lanahlin. 40 :\Io. 052; St. Louis v. Her- Holand v. Lowpll. 3 Allon 408. tlir^l. 8S Mo. 128. 220 TELEGKAPH AA'D TELEPHONE COMPANIES. [^ 231 manage and regulate the construction and maintenance of telepraph and telephone lines within their limits, and this power is generally held to be included in the delegation of a general jDower of police con- trol over streets.'^ Often the streets are lined with an intricate web of wires, actually or potentially charged with electric currents, which are dangerous unless approached with caution. These wires are not for telephone purposes alone, but also for the transmission of elec- tricity, and as a source of motive power and illumination. To per- mit these wires to be indefinitely increased upon the streets, without some power to regulate the manner of their construction, would be a source of annoyance and inconvenience to the municipality. So, when the general power of police regulation is delegated to a city, the power to regulate the construction and maintenance of these lines will be included therein. The municipality may, under the police power delegated to it, prescribe the exact location of poles. In granting a franchise to one of these companies to construct a line upon the streets, it may require the company to furnish a map showing the ex- act location for the poles.'** It may require that the poles shall be of such size and character as not to endanger persons using the streets, and that they shall not be unsightly.^ ^ It may require that the wires shall be a certain height above the surface of the streets, and to cross other wires at a certain angle. And in certain cases, where the con- ditions are such as warrant their removal entirely, the city may com- pel the company to dispense with their use and to place them under- ground.'''^ All restrictions imposed by a city must be reasonable.'^''' •'Allentown v. West. U. Tol. Co., 148 21 Am. St. Rep. 764, 13 L. R. A. 454n. Penn. St. 117, 23 Atl. 1070; West. U. affg. 58 Hun (X. Y.) 610; Anerbach Tel. Co. V. Philadelphia, 12 Atl. 144; v. Cuyahoga, Tel. Co., 9 Ohio Dec. 389, 2 Dill, on Muncp. Corp. (4 Ed.) §698. 7 Ohio Np. 633; Baltimore v. Chesa- '•' Anerbach v. Cuyahoga Tel. Co., 9 peake, etc., Tel. Co., 92 Md. 692, 48 Ohio Dee. 389, 7 Ohio N. P. 633. Atl. 465; Geneva v. Geneva Tel. Co., 30 ''Forsythev. Baltimore, etc., Tel. Misc. (N. Y.) 336. Co., 12 Mo. App. 494; Hardwick v. "Summit T. P. v. Xew York, etc.. Vermont, etc., Tel. Co., 70 Vt. 180, 49 Tel. Co., 57 X. J. Eq. 123, 41 Atl. 146; Atl. 169. Xorthwestern Tel. Exch. Co. v. Minne- '» People V. Squire, 145 U. S. 175, 12 apolis, 81 Minn. 140, 83 X. W. 527, 53 S. Ct. Rep. 880, affg. 107 X. Y. 593, 1 L R. A. 175; Seaboard Tel., etc., Co. Am. St. Rep. 894; Mutual U. Tel. Co. v. Xearny, 68 X. Y. App. Div. 283; Am- V. Chicago, 16 Fed. 309; American orican U. Tel. Co. v. Harrison, 31 X. Rapid Tel. Co. v. Hess, 125 X. Y. 641. J. Eq. 627. <^ 232] REGULATION AND CONTEOL. 221 § 232. Power to revoke franchise. The municipal authority very clearly has the right to couple with the permission to use the streets, such conditions as the occupancy of the streets by the company's posts and wires suggest;'* but this author- ity cannot at its mere will annul the act ''■* which has legalized the occupation of the streets, and so leave the company's property im- pressed with the character of a nuisance which could be at any time abated.®" For instance, if the power to regulate and control the con- struction and maintenance of these companies has been delegated to a municipality and permission has been given to the former, under such authority, to construct their lines along the streets after comply- ing with all the conditions required, the same cannot be revoked without good cause, when the franchise or license has been accepted, great expense has been incurred and all conditions have been com- plied with.^^ But, under the power of police authority, these munici- palities may make such changes in the grant to these companies when the same is for the interest of the public ; provided, vested rights are not impaired. Thus, a city may require the wires to be placed un- derground where the condition or circumstances requires that the same be done.®- When permission has been granted to these compan- ies to construct a line of wares along the streets, they will not be treated as trespassers, and their works declared a nuisance, if they are so constructed as not to interfere with the use of the streets by the public.®^ But if they should become a nuisance for any reason, the city authority has a right to abate their works by virtue of its general power to protect the public interest in the streets.®^ ■*1 Dill. On Mun. Corp. §§555, 558, Anderson, 12 X. Dak. 585, 98 X. W. 575. TOG, 102. Am. St. Rep. 580, 65 L. R. " Xorth western Tel. Exch. Co. v. An- A. 771. derson, 12 X. Dak. 585, 98 N. W. 706, •« See note 76 for reference cases. 102 Am. St. Rep. 580, 65 L. R. A. "Southern Bell Tel. Co. v. Francis, 771. 10!) Ala. 224, 19 So. 1, 55 Am. St. Rep. ^Hudson Tel. Co. v. Jersey City, 49 030, 31 J.. R. A. 193. X. J. L. 303, 60 Am. Rep. 619, 8 Atl. "* Xew York, etc., Tel. Co. v. East 123. Orange, 42 X. J. Eq. 490, 8 Atl. 289; "Hudson Tel. Co. v. Jersey City, 49 :Mut. U. Tel. Co. v. Chicago, 16 Fed. X. J. L. 303, 8 Atl. 123, 60 Am. Rep. 309. 619; Xorthwestern Tel. Exch. Co. v. 222 TELEGRAPH AND TELEPHONE COMl'ANIES. [^ 233 § 233. Cannot impose tax or license — not police power. It has been held that a telegraph company whose business is the transmission of messages from one state to another and which is in- vested with the powers and privileges conferred bj Congress, cannot be forced by the state, as a condition of doing business in its juris- diction, to pay a license tax, the same being free from the control of state regulations, except such as are strictly of a police character.^ ^ It, therefore, follows that a city which derives all its powers from the state has no authority, under the power to regulate the control of the streets, to impose a license on these companies. Licenses for this purpose do not fall under the head of police power and subjected, therefore, to the state control.^^ But a municipal corporation has a right, and it is its duty in the exercise of the police power, to super- vise and control the erection and maintenance of telegraph and tele- phone poles and wires within its limits, and if the license is imposed for the purpose of inspecting this work, it will fall under the police power and therefore subject to such license; ^'^ or if the imposition is in the nature of a rental,^ ^ it may be enforced. Thus, where an or- dinance compelling a telegraph company to pay five dollars per an- num for every pole within the city "for the privilege of using the streets, alleys and public places," is a charge in the nature of a ren- tal, and it makes no difference that these companies are doing inter- state business ; but the charges imposed must be reasonable, which is a subject open to judicial investigation.^^ It has been held that five dollars for each pole per annum was not an unreasonable charge.®*' The legislature may, in express terms, delegate the power to a city to impose a tax or license on these companies, where the same is not done by the state, yet this delegated power will not give the city the ^^Leloup V. Mobile, 127 U. S. 640, 8 Cable Co., 21 N. Y. Supp. 556; Ches- R. Ct. Rep. 1380. ter v. West. U. Tel. Co., 152 Pa. St. «■ New Orleans V. Great Southern Tel. 464; 25 At\. 1134; West. U. Tel. Co. etc., Co., 3 So. 533. v. Philadelphia, 12 Atl. 144. "" Leloup V. Mobile, 127 U. S. 640, 8 '» St. Louis v. West. U. Tel. Co., 39 8. Ct. Rep. 1380; Wisconsin Tel. Co. Fed. 59; New Orleans v. Great South- V. Oshkosh, 62 Wis. 32, 21 N. W. 828. ern Tel. Co., 40 La. Ann. 41, 3 So. «* Allentown v. West. U. Tel. Co., 148 533. Pa. St. 117, 23 Atl. 1070, 33 Am. St. »» St. Louis v. West. U. Tel. Co., 39 Rep. 820; Philadelphia v. Postal Tel. Fed. 59. <^ 234] KEGULATIOX AXD CONTROL. 223 power to make such an imposition on the business of interstate com- merce: and while these companies may be doing an interstate com- merce business, yet business which is carried on exclusively within the state may be subject to such taxes.^^ The same rule, which ap- plies to the reasonableness of charges as rental of the' space occupied by the poles of these companies, applies to the taxes which the mu- nicipality has the power to impose under the delegated authority. In other words, the taxes imposed on these companies as a purpose of revenue must not be excessive.®^ What is a reasonable charge is a question of fact, and what would be reasonable in one instance might not be in another. For instance, if the poles were in a crowded and busy part of the city, the amount to he charged should not be the same as that which should be imposed in a small country town where the property is not so expensive."^ § 234. Cannot regulate rate — without express authority. A municipal corporation cannot regulate the charges for services unless the right has been expressly delegated to it, as this right is not embraced in the general police power of the city. There is no ques- tion but that this power may be delegated to the municipality, yet it must be done in express terras. As the city government is only a part of the whole government which constitutes the commonwealth and is, therefore, subservient to the management of the whole, it can not enforce any rule of law Avhich would be inconsistent with the whole ; b\it can exercise only such powers as may be delegated to it, in clear and in expressed terms. The question as to whether the mu- nicipal corporation has the right to regulate the charges for tele- phone services, doing business within its limits, was declared in a case which went up from the City of St. Louis. The charter of this city gave the mayor and the assembly power "to license, tax, and regulate telegraph companies or corporations," and it might "pass all such ordinances, not inconsistent with the provisions of this charter or the laws of the state, as may be expedient, in maintaining the peace, good government, health, and welfare of the city, its trade, comraerc »i Moore v. Eufaula, 11 So. 921. •'St. Louis v. West. U. Tel. Co.. 39 "St. Louis V. West. U. Tel. Co., 39 Fed. 59; Chester v. West. U. Tel. Co.. Fed. 59. ].">3 Pa. f^t. 4G4, 25 Atl. 1134. 22-i TELEGRAPH AXD TELEPHONE COMPANIES. [<§ 234 and manufactures." The court held in that case, that the fact that the city had to regulate the use of the streets with respect to the construc- tion of the telephone lines thereon, did not give it the right to regu- late the charges for telephone services, nor did it have the power, un- der its charter, to regulate the rate under its general police power.^* "St. Louis V. Bell Tel. Co., 96 Mo. 370; State v. Sheboygan, 111 Wis. 23, 623, 2 L. R. A. 278n, 9 Am. St. Rep. 86 N. W. 657. CHAPTER XII. DUTIES TO FURNISH EQUAL FACILITIES TO ALL. § 235. Telegraph — in general. 236. Same continued — duty to furnish. 237. Must have sufficient facilities. • 238. Must transmit in order in which received. 239. Discriminations — cannot make. 240. Same continued — discrimination — must be just. 241. Same continued— reasonable discriminations. 242. Reasonableness of rates — how determined. 243. Telephone companies — furnish equal facilities. 244. Same continued— whether private or incorporated concerns. 245. Statutes— declaratory of common law. 246. Must furnish equal service and facilities. 247. Same continued — terms. 248. Whom to serve— persons conducting legitimate business. 249. Same continued — other corporations. 250. When may refuse to furnish services— abusive language. 251. Same continued— on refusal to pay charges or rent— other reasons. 252. Being lessees of patents — no excuse. 253. Lessee's ground for refusal. 254. Remedies — mandamus. 255. Proper parties. 256. By injunction. § 235. Telegraph — in general. In discussing the subject of the duty of these companies to furnish equal facilities to all, we shall treat each company separately, as the manner in which the husine-s of the two i,^ conducted differs slightly in some respects.^ The law a|)])licalili' rlicrcto, therefore, is not the same at all liiiics. It is not our ])ur]i()>c to be understood as saying that there is such material difference in the way the business of the two is carried on that the law, with respect to this subject, could not be ap-plied equally to Iwth, for such is imt our ].uriiose, but that the two may be satisfactorily treated separately in such a way as may be more clenrlv understood by the reader. We sball first refer to 'Central l'. Ifl. (o. v. Falloy. 118 lii.l. 1!M. 10 Am. St. Rpp. U4, 10 N. K. t;()4. T. & T.— 15 (225) 226 TELEGKAPH AND TELEPHONE COMPANIES, [<§> 235 the duty of telegraph companies to furnish equal facilities to all who comply with their reasonable regulations. § 236. Same continued — duty to furnish. TelegTaph companies are not common carriers under the common law, but have been declared to be such by statutes in most of the states and are thereby made subject to all the laws applicable to com- mon carriers. They may or may not become incorporated, but if they have the power to exercise some of the rights of the government, such as the right of eminent domain, they are then impressed with a pub- lic interest and are under a legal obligation to serve with impartiality all who apply to them after complying with their reasonable regula- tions.^ When the government grants to any corporation or per- son some of its rights, it takes in lieu thereof an interest in the granted business ; and, when one is the owner of the property which is devoted to a public use and in which the public has acquired an in- terest, he, in effect, grants to the public an interest in such use and must, to the extent of that interest, submit to be controlled by the government for the common good as long as such is maintained.^ One of the great requirements which the government demands of every institution impressed with a public interest — and one which is thrown over every citizen as a great and protective shield — is the duty to act impartially with all.^ They are under obligations to ex- tend their facilities to all persons, on equal terms, who are willing to comply with their reasonable regulation, and to make such com- pensation as is exacted for others in like circumstances. § 237. Must have sufficient facilities. In order that a telegraph company may be able to carry out the du- ties which it owes to the government, it must in the first place equip its business so that all unfavorable emergencies may be dispensed ? ^ State V. American, etc., Commercial ter-Ocean Pub. Co. v. Associated Press. News Co., 43 N. J. L. 381; West. U. 184 111. 438, 75 Am. St. Rep. 184, 56 Tel. Co. V. Call. Pub. Co., 44 Neb. 326, N. E. 822, 48 L. R. A. 568. 62 N. W. 506, 48 Am. St. Rep, 729, 58 * Reed v. West. U. Tel. Co., 135 Mo. Neb. 192, 78 N. W. 519. OGl, 37 S. W. 904, 58 Am. St. Rep. »Munn V. Illinois, 94 U. S. 113; In- (iOi), 34 L. R. A. 492. <§ 238] EQUAL FACILITIES TO ALL. 227 with in the shortest possible time and in the most eificient and careful manner. It is the duty of a company to have sufficient facilities to transact all business offered to it for all points where it has offices; and if the press of business offered is so great that one wire or one operator at a point is not sufficient, it is the duty of the company to add another wire or an additional employee.^ It must not only have sufficient facilities to carry out its business, but it also must be pro- vided with competent servants and suitable instruments for this pur- pose; and on a failure to do so, whereby injuries or losses are in- curred, it must respond in damages.^ In the case of telephone com- panies, each person has the right to demand and receive a telephone and telephonic connections, facilities and services, and the best in use by such companies. ISTot only is it necessary that these companies should furnish the best facilities which they may have in use, but they must furnish the very best equipped and most up-to-date instru- ments to be used by any similar companies.''^ These companies vol- untarily engage in a public duty ; they solicit the public to transact business with them on reasonable terms, and when they have placed themselves before the public to perform such business as may be ten- dered, they must exercise due care to carry out all such duties ; and in order to do this, they must prepare and furnish the best instru- ments and extend impartial favors toward the public. § 238. Must transmit in order in which received. One of the duties imposed upon telegraph companies is, that they must, with few exceptions, transmit all messages tendered them, af- ter a reasonable compliance with their rules and regulations, in the order in which they are received.^ These companies are under a legal obligation to the public to carry out this part of their duties to- =>Leavell v. West. U. Tel. Co., 116 "Hood v. ^Vost. U. Tel. Co., 135 Mo. N. Car. 211, 21 S. E. 301, 27 L. R. A. G61, .58 Am. St. Rep. 609, 34 L. R. A. 843, 47 Am.'st. Rep. 798 ; West. U. Tel. 492. v:o. V. Hudson, 89 Ala. 510, 7 So. 419. ''Central U. Tel. Co. v. Falley, 118 18 Am. St. Rep. 148; West. U. Tel. Ind. 194, 10 Am. St. Rep. 114, 19 N. Co. V. Broesche, 72 Tex. 654, 13 Am. St. E. 604. Rep. 843. See extended note in 'Mackay v. West. U. Tel. Co.. 16 West. U. Tel. Co. v. Blancliard, 45 Am. Neb. 223; Reiitii v. Electric Tel. Co., 6 Rep. 487. El. & Bl. 341, 88 E. C. L. 341. 228 TELEGRAPir AND TELEPIIOXE CO:\rPANIES. [§ 2'.}>> Avard the i)ublic for obtainino- so great a right as that of assuming public functions and enjoying public immunities : and the same must be observed unless the statutes of the state, or i)ublie policy demands that certain other messages shall have precedence over these. In many states there have been statutes passed which require that mes- sages be transmitted in the order in which they are received,^ but it seems that the companies are under this obligation even though there are no statutes to this effect. If they were permitted to exercise their own judgment with respect to the time and manner in which the mes- sages should l)e delivered, partiality would in many instances be shown, which, as we heretofore said, could not be done. It neces- sarily follows, therefore, that messages should be transmitted in the order in wliieh they are received, even in the absence- of a statute to that effect. There are some messages which, through legislative enact- ments, are entitled to a preference over those which would otherwise have precedence; where such is the case, those messages— such as per- tain to the government, those for and from officers of justice, and those for publication of general and public interest — have the right of way.^*^ It is considered, where the public — or any of its ser- vants — is the sender of messages, that thev are alwavs of some conse- quence, and that not only one but many people are directly or indi- rectly interested in the results, and a failure to promptly and im- mediately send same in preference to those otherwise having priority, would inflict a loss not only upon one of its citizens but on many ; for this reason some of the legislatures have seen fit to give them preference. It has also been held that these companies are under ob- ligations to give preference to all private messages where they have been informed, either by the sender or by the face of the message, that their immediate transmission and delivery was of the utmost importance. It seems that such messages as these should have pre- cedence over those given preference by statute, should the former clearly a])])ear to be of more consequence than the latter. It is pre- sumed that those given preference by statute are of much importance, Ijut the presumption may be overcome if it clearly appears from an inspection of the private message that it is of greater importance than the former. The telegraph eoiii])any is often ignorant of the real "Orav (111 'IVl. §20. '"Criiy (ni Tel. S 20 note 2. § 239] EQUAL KACILITIKS TO ALL. 22'9 iiicauiijg of a telegram; and, while it may be assured of its meaning, it eannot always know its full importance, as the importance of a message often depends on other circumstances surrounding the par- ticulnr message. The comf)any cannot, therefore, always know what importance should be given to messages, and if this fact should be left r ) its own consideration, it might often be mistaken in its judgment; .iiid on this account preferences might be given to some which would not be thereto entitled. It is not a good policy anyway to give these companies this power; for they might take advantage of the power and give preference, many times, to messages which should be trans- mitted in the regular order in which they are received. It is, there- fore, much the better policy to demand of them to transmit the mes- sages in the order in which they are received. § 239. Discriminations — cannot make. Telegraph com])anics are public servants, and it would be a viola- tion of the duties which they owe to the public if they were allowed to unjustly discriminate with respect to their charges where the con- ditions are the same.^^ They are exercising public functions and are allowed the right to make reasonable charges for their services; but they must be imposed equally on all, where the circumstances are (•(jual. This is a common-law principle and could be enforced in the absence of a statute to that effect. While the charges of these com- panies, which are carrying on interstate commerce business, should be regulated by the federal laws, and punishment imposed on all who violate same, yet in the absence of such laws the state may either by a constitutional provision or legislative enactment, pass and enforce such law even as to charges for interstate business. Many states of the Union — and England — have passed statutes prohibiting these companies from unjustly discriminating : it has been held that so far as these statutes affect civil actions — disregarding the penalties im- posed — are they anything more than declaratory of the common "Hays V. Pennsylvania, etc., Co., l-.i Duiroo v. Portland, etc.. R. Co., 52 N. Fed. 311: Chicago, etc., R. Co. v. ii. 4:^0. 13 Am. Rep. 72; West. U. Tel. Parks, 18 HI. 4G0, G8 Am. Dec. 562; In- Co. v. Call Pub. Co., 44 Neb. 32G. 48 dianapolis. etc.. R. Co. v. Ervin. 118 Am. St. Rep. 729, 62 N. W. 506. 27 L., 111. 2.-)n. S X. E. S62; St. Louis, etc., K. A. 022. i;. I o. V. Hill. 14 111. App. 579; :Mc- 230 TELEGKAPH AXD TELEPHONE COMPANIES. [^ 239 law.^- When it is incorporated in the constitutional provision that telegraph companies shall not unjustly discriminate in their charges, it must be construed as establishing the limits of legislative author- ity upon this subject, and not as giving authority to declare all dis- criminations as unjust ^^ — as it will be seen in the following section. § 240. Same continued — discrimination — must be just. It is not every discrimination which is unjust,^"* since there may be conditions surrounding the particular case which would entitle telegraph companies to make discriminations among their patrons. These companies certainly have the right to demand a reasonable compensation for their services, and where the conditions pertaining to the transmission and delivery of messages are similar in every re- spect, they should not be permitted to discriminate in their rates ; but in many cases the conditions are not similar and where this is the case, it is not unjust discrimination. It is not contrary to the com- mon law nor is it contrary to the statute to make a difference in the charges. It has been held that the true rule on this subject is that the rates must not only be reasonable in themselves, but must be relatively reasonable ; that is, they must first be reasonable, and then they must not, without a just and reasonable ground for discrimina- tion, render to one patron services at a less rate than it renders to an- other, where such discrimination operates to the disadvantage of that other. ^^ They must not discriminate in rates between patrons so as to give one an undue preference over another. It is not an un- due preference, however, to make to one patron a less rate than to the other, when there exist differences in conditions as to the expense or difficulty of the services rendered which fairly justifies such a differ- ence in rates. ^^ This question was very elaborately discussed in a case in which a newspaper company instituted an action for dam- ages against a telegraph company Avhich was transmitting news for "Id. McDnlTee v. Portland, etc., R. Co., 52 "Id. N. H. 430, 13 Am. Rep. '72. '*Root V. Long Island R. Co., 114 N. ^° West. U. Tel. Co. v. Call Pub. Co., Y. 300, 11 Am. St. Rep. 643; Johnson 44 Neb. 326, 62 N. W. 506, 27 L. R. r. Pensacola, etc., R. Co., 16 Fla. 623, A. 622, 48 Am. St. Rep. 729. 26 Am. Rep. 731 ; Chicago, etc., R. Co. " Id. V. People, 67 111. 11, 16 Am. Rep. 599; <§ 241] EQUAL FACILITIES TO ALL. 231 the Associated Press at Cliicago, fur unjustly discriminating against the plaintiff and in favor of another paper company doing business in the same place. The Associated Press was furnishing news to both of these papers, but it was shown that the plaintiff was an even- ing paper — the other being a morning paper — and received its news during the day, when the telegraph company was necessarily very busily engaged in other general telegraphic business, and at a time when its w^ires could ea^sily have been put to other uses. The other paper did not receive its news until night, and at a time when the de- fendant was not being rushed with work and incurring the expense to which it was subjected during the day. The court held in this case that, notwithstanding the fact that the news was transmitted over the same wire of defendant company, from the same place to the same place, and that the same amoimt of skill and care was necessary in both cases, yet the expense incurred in the transmission of mes- sages to the plaintiff was so much greater than that incurred in the transmission to the other paper, that the defendant had the right to discriminate in the rates between the two, and that it was not an un- just discrimination.^"^ § 241. Same continued — reasonable discriminations. Where the conditions respecting the transmission of messages for two patrons are different, in that the expense and trouble incurred in the transmission of one is greater than in the other, the telegraph company may discriminate in the charges. Discriminations made in good faith, because of such differences in the expense of trans- mission — and proportional with reference thereto — are undoubtedly just, but it devolves upon these companies, relying upon such facts as a defense to a suit for unjust discrimination, to prove them to the satisfaction of the court. ^^ Thus, where the same messages are trans- mitted by the same company, from the same place to two patrons of the same place, but the messages are received at different times dur- ing the day and at times when the expenses and trouble in the trans- mission are different, the company may discriminate in its rates. ^® A "Id. '"West. U. Tel. Co. v. Call Pub. Co.. "People V. Wabash, etc., K. Co., 104 44 Xeb. 32G, 62 X. W. 506, 27 L. E. 111. 476; Portsmouth, etc., R. Co. v. A. 622, 48 Am. St. Rep. 729. Forsayth, 59 N. H. 122; St. Louis, etc., R. Co. V. Hill. 14 111. App. 579. 232 TELEGKAPII A>'D TELEPHONE COMPANIES. [§ 241 telegraph company may also, imless restrained by statute, discrimi- nate in favor of longer distances.-" But these companies cannot dis- criminate against a person who refuses to patronize them exclus- ively.^^ And it is not a legitimate ground for giving a preference to one patron that he engages to employ other lines of the company for the transmission of news distinct from and unconnected with the message in question,^- A telegraph company cannot discriminate in favor of itself or any of its employees as against other patrons.^^ A contract by which a telegraph company agrees to transmit for one person at cheaper rates than it was transmitting for other patrons and the public generally in like circumstances,^* under the same con- ditions and for like distances, is void as creating an illegal prefer- ence and making an unjust discrimination. And a contract by which a telegraph company gives to a railroad company a preference over its lines to the exclusion of others, is an illegal discrimination and does not justify it in exacting an extra tariff for sending a message over the line of another company to a point at which it also has a line.^° These companies cannot discriminate in favor of a patron '"St. Louis, etc., R. Co. v. Hill. 14 111. App. 579; Hirsh v. Noith2 Am. Si. Rep. 366; Gwynn V. Citizens' Tel. Co.. 09 S. Car. 434. 48 S. E. 400. 104 Am. St. Rep. 819, 07 L. R. A. 111. "Central I'. Tel. Co. v. Falley. lis Ind. 1!U. I'.i X. E. 004, 10 Am. St. Rep. 114. *=In State v. Xehiaska Tel. Co.. 17 Xeb. 120. 22 X. W. 237. 2 Am. K.p. 409. it ajipcared that the relator, an attorney at hiw. applied to the loeal eompany lor a telephone with the usu- 4il eonneotions. Tin- in^tiiiment wa~ tuiiii-hcd, together witli all the appli- ances, excepting a directory, tlie ab- sence of which materially impaired the beneficial use of the telephone. After continued applications, a directory was furnished, but on pay day, the sub- scriber refused to pay except for the time dining which he had been fur- nished with a directory; the company insisted .ii full payment. Xeither ^^•ould yield, so the company removed the instrument. Subsequently the re- lator applied for services, oflering to comply with their reasonable regula- tions, but was refused. He then aji- plied for mandamus to compel the com- pany to render the service. It wa- held that the mandamus should issue. Tlic coin'., after reviewing the status of the telephone company and the pub- lie character of the obligations they assumed, concluded that the company had '"assumed the responsibility of a (uiiiir.on c.irricr of news. Its wires and polo line our jniblic streets and thor- ougiifarc-. it has, and must be hel 1 to have, taken its place by the side of tlie telegraph as such common car- rier." That the dutv to tlie relator 238 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 247 § 247. Same continued — terms. The iiile respecting discrimination of rates of telegraph companies is applicable to telephone companies. That is, telephone companies must have a uniform rate for all subscribers and patrons, where the conditions are the same. The rates to be charged to all who use long distance telephones, or to be charged to their regular subscribers, are generally regulated by statutes. It has been held, therefore, that where statutes prescribe the maximum charges for telephone instru- ments and services, it is not the taking of private property for pub- lic use; nor do they in anywise interfere with the constitutional rights of citizens in private property f^ nor are they an interference with interstate commerce.^* And where these statutes prescribe a penalty for a violation of this duty, this is only cumulative; and the company cannot be forced to comply with its requirements by mandamus.^ ^ As there are cases where telegraph companies may discriminate in their rates, so, also, there may be conditions, sur- rounding the particular case, which will entitle telephone companies to make like discriminations. For instance, if the expenses and trou- ble are greater in one particular message than in another, different charges may be made. Thus, they may make a greater charge to a subscriber who has a single line than to one who is on a double line ; and they may charge a country subscriber more than one living near the exchange. While this is not the general practice, there seems to be no reason why the same could not be done, as it is necessarily more expensive and troublesome to keep this line in repair than one within the corporate limits and near the exchange. They may also discrim- was one growing out of its office as obligation by alleging that it does not carrier and not out of contract; and rent telephones, but furnishes such ser- that its lelations with the relator as to vice by means of public stations only, the misunderstanding between them Central U. Tel. Co. v. State, 123 Ind. concerning the directory, could not af- 113, 24 N. E. 215; Central U. Tel. Co. feet the case. See, also, Delaware v. v. State, 118 Ind. 194, 19 N. E. 604, 10 Delaware, etc., Tel., etc., Co., 47 Fed. Am. St. Rep. 114. 633, affirmed 50 Fed. 677; Central U. "Hockett v. State, 105 Ind. 250, 55 Tel. Co. V. Bradbury, 106 Ind. 1; Budd Am. Rep. 201. V. New York, 143 U. S. 517, 12 S. Ct. ** Central U. Tel. Co. v. Falley, 118 Rep. 468; People v. Manhattan Gas Ind. 194, 19 N. E. 604, 10 Am. St. Light Co., 45 Barb. (N. Y.) 136. The Rep. 114. telephone company cannot evade this *'' Id. <§ 248] EQUAL FACILITIES TO ALL. 239 mate between day and night patrons for the same reasons as those given in regard to telegraph companies. They cannot discriminate between county subscribers; but if a subscriber in one county desires to talk to a subscriber in another county, they may charge extra for such messages; yet this charge must be the same as that imposed on a non-subscriber for the same kind of message; furthermore, the charges must be the same between subscribers and non-subscriljers, in the same county, where the conversation is between a subscriber and a non-subscriber. In other words, where conversations are carried on between two citizens of a county, where one is a non-subscriber, the charges must be the same as those imposed on all other non-sub- scribers. There may be this apparent exception, however, when the addressee is a subscriber; the company would not be allowed to make an extra charge for the purpose of getting him to the telephone as it would in case he were a non-subscriber, and that, too, whether he was or was not a nonresident. Of course, it is not understood by this that the companies should make diligent search for the party called. Telephone companies cannot discriminate in favor of their employees and against the subscribers or patrons; neither can they grant any privilege in the way of free rates to any of their employees, not en- joyed by the public, unless the same is pertaining to business of the company. Neither can they discriminate in favor of a subscriber who does exclusive or any extra amount of business with them. They must serve all equally and impartially, whatsoever may be the na- ture of business or whomsoever they may be. § 248. Whom to serve — persons conducting legitimate business. It is the duty of telephone companies to furnish equal facilities and conveniences, impartially to all, irrespective of age, race or habits ; and serve all these alike on offering to comply with their reasonable regulations. While it seems that they cannot be forced to furnish their instruments to persons for the purpose of using them for an illegitimate business, yet there is no reason why they may not be compelled to furnish their facilities to parties who carry on an illegitimate business, otherwise than by the operation or use of the company. In other words, telegraph and telephone companies can- not be compelled by mandanuis to furnish their facilities to a "bucket 240 TELEGRAPH AND TELEPHOXE COMPANIES. [§ 248 shop-' for the purpose of obtaining the market quotations,-*^ or to persons otherwise using them as a means of consummating wager- ing contracts; yet it is their duty to furnish tliese people, at their place of business not used for such purposes, with all the facilities and conveniences furnished other persons, and on the same terms, where the same is being used for all conveniences otherwise than such as may pertain to their gambling transactions. Furthermore, should they see fit to furnish their telephones and connections to such per- sons for the express purpose of carrying out their illegal or gambling contracts, yet they could not be forced to furnish their facilities for such purposes to other like persons ; because, as they could not b»: compelled to furnish their facilities to any person for the purpose of carrying on a business which is not under the protection of the laws, they could not be compelled to furnish to others conducting a simi- lar business, likewise unprotected. Among such, who should claim to be discriminated against in this respect, there would be no ground in law or equity on which to base and contend for the right ; there is no principle within the far-reaching vision of jurisprudence so powerful as to compel any one to carry on an illegitimate business, or to assist in lending a helping hand to another for the purpose of doing the same. So, as the law will not compel these companies to furnish their facilities to one person for an illegitimate purpose, it stirely wall not compel them to furnish one for this kind of a busi- ness when the company voluntarily extends its services to another for like ])urposes. § 249. Same continued — other corporations. These companies may elect as to whether they wnll receive from and deliver messages to telegraph companies; but if they tender their services to one of these companies, they are bound to receive dis- patches from and for all telegraph companies in the usual course of Imsiness.^' As was very al)ly ol)served by Judge Butler on this sub- ject : '"Wliile siu'li coiiipiinics ;ire not required to extend their facil- *" Bryant v. West. l'. Tel. Co.. 17 niovo. etc.. Tel. Co.. 60 Md. .390. 7 Atl. Fed. 82.5; Metropolitan (Jniin & Stock 800. .jO Vm. Rep. 167; Missouri ex rel. Excli. V. Chicago Board of Trade, M ^•. T'.dl Tel. Co.. 8 Am. & Eng. Corp. Fed. 847. (as. 7; Delaware, etc.. Tel. Co. v. *" Chesapeake, etc.. Tel. Co. v. P.alti- State. 50 Fed. 077. ^ 250] EQUAL FACILITIES TO ALL. 241 ities beyond .such reasonable limits as they may prescribe for them- selves, they cannot discriminate between individuals or classes which they undertake to serve. As common carriers of merchandise may prescribe the points between which they will carry and the descrip- tion of goods they will accept, so, doubtless, may carriers of mes- sages limit their business and obligations. If, therefore, the respond- ent had confined the use of its telephonic facilities to the carriage of personal messages for individuals, excluding those of telegraph companies and others who forward messenger hire, the relator would, probably, have no just ground of complaint." ^^ § 250. When may refuse to furnish services — abusive language. Under certain conditions and circumstances, telephone companies may refuse to furnish their telephonic instruments and services to certain persons. As mentioned in the preceding section, they may refuse to furnish them to persons who intend to use them for illegit- imate purposes.^^ And while these companies must deal fairly with their patrons and extend to them all the courtesy and respect which « Drue. etc.. T.'l. Co. v. State, 50 Fed. 677. *• Mandamus does not lie to compel a telephone company to place a tele- phone in a bawdy-house: Godwin Tel. Co., 136 N. Car.' 258, 48 S. E. 636, 67 L. R. A. 251, 103 Am. St. Rep. 941. The court in this case, said "It is ar- gued that a common carrier would not be authorized to refuse to convey the plaintiff because she keeps a bawdy- house. Nor is the defendant refusing her a telephone on that ground, but be- cause she wishes to place the telephone in a bawdy-house. A common carrier could not be comix?lled to haul a car used for such purpose. If the plain- tiff wished to have the telephone placed in some other house used by her, or even in a house where she resided, but not kept as a bawdy-house, she would not be tlebarred tecause she kept an- other house for such unla\vful and dis- leputable purpose. It is not her char- T. & T.— 16 actor, but the character of the business at the house where it is sought to have the telephone placed which required the court to refuse the mandamus. In like manner, if a common carrier knew til at passage was sought by persons who are traveling for the execution of an indictable offense, or a telegraph company that a message was tendered for a liko purpose, both would be jus- tifiable in lefnsing, and certainly when the plaintiff admits that she is carry- ing on a criminal business in the house ^^here she seeks to have the telephone placed, the court will not by its man- damus rciiuire that facilities of a pub- lic nature be furnished to a house used for that business. For like reason a mandamus will not lie to comiiel a wa- ter company to furnish water, or a light company to supply light to a house used for carrying on an illegal business. The courts will enjoin or abate, not aid, a public nuisance." 242 TELEGRAPH A^'D TELEPHONE COMPANIES. [§ 250 is due one person toward another in like circumstances yet, on the other hand, thej should likewise receive the same treatment by all who desire to do business with them. So, if anyone applying to them for service should use abusive language over the wires, or such as would tend to create a public disturbance either with any employee of the company or other person with whom they may be conversing, they may refuse to furnish him service while using such language. And should one of their subscribers use, continuously, such language or abuse over his telephone, after persistent requests by the com- pany not to do so, they may, as a last resort, remove their instrument from his premises. It is a w^ell-known principle in the law of torts, that any publisher of libelous or slanderous words is as guilty of the wrong as he who first used the words ; so, if these companies could be forced to render services to persons who used them for such pur- poses, the company, and not the wrongdoer in fact, might thereby become liable in an action for damages. So to protect itself such company may refuse services to such persons. ^"^ § 251. Same continued — on refusal to pay charges or rent — other reasons. The company may refuse to furnish its facilities to any one who does not offer to pay the proper charges. ^^ The charges of these com- panies, as said heretofore, are regulated by state and federal laws, and so long as charges remain within the maximum rates prescribed by these authorities, the companies can enforce a compliance or re- fuse to render their ser^'ices. But so soon as they exceed these charges in any manner, as by rental of each of its instruments; or as a rental for their instriunents and an extra charge for non-sub- scribers; or as a toll-station, or a charge for each conversation and a rental, they cannot use this as an excuse for not furnishing their in- struments, provided the subscriber or patron offers to pay the rate prescribed by law. If the failure to pay is due to the company's re- fusal to render the patron the services he is entitled to demand, it affords no ground to the company for discriminating.^^ And the •"•Pugh V. City, etc., Tel. Co., 27 Alb. Rushville Co-operative Co. v. Irvin, 27 L. J. 163. Ind. App. 62. " Nebraska Tel. Co. v. State, 55 Neb. '^^ Owensboro-Harrison Tel. Co. v. 627, 76 N. W. 171, 45 L. R. A. 113; Wisdom, 62 S. W. 529, 23 Ky. L. Rep. 97. § 252] EQUAL FACILITIKS TU ALL. 24u fact that an applicant had violated a former contract with the com- pany is no ground for its refusing his application. Thus, for thr- reason that a subscriber refused to pay his rental, past due, on the ac- count of a directory not having been furnished at the time by his re- quest, is no ground for the company's refusal to furnish its instru- ments later and at a different time, wlien tlie subscril^er agrees to comply with their reasonable rules.^'' The company may refuse to furnish facilities to one who violates its reasonable regulations with regard to the use of its instruments,^"* but the regulations must be entirely reasonable. For instance , a telephone company cannot, as a condition precedent to furnishing an applicant with telephone fa- cilities, require him to stipulate that he will use the system of that company exclusively.^^ § 252. Being lessees of patents — no excuse. It has been vigorously contended in several cases, that telephone companies were not under obligation to furnish services to the entire public or to certain rival companies, where they were the lessees of telephone patent devices; but with only one exception, ^^ all the courts have held that they could not evade this duty on such ground. The manner in which this question was brought about is as follows: One Alexander Graham Bell invented an apparatus for transmitting articulate speech by electricity, and the same was patented by him in 1876 in the United States, by which the exclusive right to use and license others to use, and to refuse to others the right to use said in- vention, was vested absolutely in said Bell and his assigns; and the whole of said rights of said Bell were by him duly assigned to, and became vested in, the American Bell Telephone Company, a Massa- chnsetts corporation ; and after the grant of said letters patent to =« State V. Nebraska Tel. Co., 17 Neb. "State v. Citizt-ns' TeL Co.. 61 S. 126, 22 N. W. 237, 52 Am. Rep. 409; Car. 83, r.9 S. E. 257, 85 Am. St. Rep. State V. Kinloch Tel. Co., 93 Mo. App. 870, 55 L. E. A. 139; Gw-ynn v. Citi- 349; State v. Citizens' Tel. Co., 61 S. zens' Tel. Co., 69 S. Car. 434. 48 S. E. Car. 83, 39 S. E. 257, 85 Am. St. Rep. 4(i0. 104 Am. St. }\ L. K. A. Kiln. •''« Id. ^ 254] EQUAL FACILITIES TO ALL. 245 or corpuratiuii it may see proper, or may refuse to make or use or al- low anyone else to make or use them; but as soon as the right of the property, in its physical substance, is j)laced out to any one for public use, it then loses the control over its use,"*' The owner may lease the devices for private purposes and restrict its uses ; but so soou as it is leased for a public use,*^^ the public then acquires an interest in the property in its physical nature. It is then subject to the pub- lic control as any other property so used; and no discrimination with respect to that use can be exercised. It must be borne in mind that the right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself."- Therefore, as soon as the owner of these patented devices leases them to be used by another company, he may restrict the lessee with i-cspect to the making, selling or leasing of such instruments or devices; but he loses control over the property with respect to the uses to Avhicli it may be put. § 254. Remedies — mandamus. The duty which the telephone company owes the public, being es- tablished in any case, mandamus is the proper remedy to enforce such performance. They are not under obligation to the public, in every particular, as common carriers, in that they arc not insurers of 'cor- rect transmission of messages; yet their duties tow^ard the govern- ment, with respect to acting impartially toward all who apply to them, offering compliance with their reasonable regulations, are the same as common carriers. While the government will not interfere with the internal management of these companies, unless necessity demands it to do so, yet having an interest in the concern to the ex- tent of seeing that their acts toward the ]mblic are impartial it may regulate the external management of the company to that extent ; and the proper proceeding in all cases of this kind is by a writ of man- damus."'^ But if, after the writ has been issued, there is any show- 00 J (I "'-Tclofrrnph Co. v. Telephone, etc.. •"Connell v. West. U. Tel. Co.. IIG Co.. 01 Vt. 241, I.t Am. St. Rep. 893. Mo. 34, 20 L. R. A. 172. 38 Am. St. .i L. R. A. 161n, 17 Atl. 1071. Rep. 575; Telemaph Co. v. Telephone. <° Owensboro-Harrison Tel. Co. \. etc., Co.. Gl Vt. 241, 17 Atl. 1071. I.t Wisdom. (12 S. W. 520. 23 Ky. L. Rep. Am. St. Rep. 803, 5 L. R. A. ICln. 07: .Mahon v. IMich. Tel. Co.. 03 N. 246 TELEGKAPH AND TELEPHOXE COMPANIES. [§ 254 iug that the company has not had the time to make the arrangements in supplying the facilities, and that they will be furnished within a reasonable time, the writ should be stayed until proper time has been given the company to make such necessary arrangements.^^ While this, in general, is the proper step to pursue in order to enforce the duties of these companies, it is also the proper procedure to compel the lessee of these patented devices to furnish their instruments to all who apply for services. § 255. Proper parties. In mandamus proceedings, brought to enforce telephone companies leasing these patented devices, to furnish telephone facilities, it is not necessary to make the owners of the patent defendants in the case. The lessee of the patent is the only necessary party defendant.®^ The reason for holding that the owner of the patent should not be made a party to the suit is, that the conditions of lease with respect to the limitations imposed thereon in the uses to which the tangible property of the patent may be put, are void ; and, as the other part of the lease is binding, the owner of the patent has temporarily lost his interest in this property and cannot, therefore, lie made a i)avty to a suit concerning property in which he has no tangible interest.''*^ Wh-ile the owner of the patent need not be made a party to the pro- ceedings, yet the company's defense may be that its contract with the patent company, the owner of the patent, forbids it to furnish the particular service in dispute.®'^ § 256. By injunction. While mandamus proceedings are the proper steps to force the owners of these patented devices to furnish their facilities to tele- W. 629; State v. Kinloch Tel. Co., 93 •-- Bell Tel. Co. v. Com. (Pa.) 3 Atl. Mo. App. 349; People v. Central New 825. Compare Commercial U. Tel. Co. York Tel., etc., Co., 41 N. Y. App. Div. v. New England Tel., etc., Co., 61 Vt. 17; State v. Citizens' Tel. Co., 61 S. 241, 17 Atl. 1071, 5 L. R. A. 161n, 15 Car. 83, 39 S. E. 257, 5 L. R. A. 139, Am. St. Rep. 893. See also Missouri 85 Am. St. Rep. 870. v. Bell Tel. Co., 23 Fed. 539. "State V. Citizens' Tel. Co., 61 S. «» Id. Car. 83, 99 S. E. 257, 85 Am. St. Rep. «' Id. 870, 55 L. R. A. 139. <^ 25G EQUAL FACILITIES TO ALL, 247 plionc companies wLcre the same have never been furnished, yet should these companies be already supplied with these facilities and about to be deprived of them, a writ of injunction would be the proper proccdure.^^ If the services are wrongfully discontinued, the company would be entitled to recover such damages as were the direct result of the wrong ;*^^ and the measure of damages in such case, where there is no willful wrong and the discontinuance is due to an honest mistake on the lessee's part and no special damages are shown, is the price of the service during the time it was discontinued, cal- culated on the basis of the regular monthly charge.''^ Special dam- ages arc also recoverable when proven.'^ •^Louisville Transfer Co. v. Ameri- Sterne v. Metropolitan Tel. etc., Co., can Dist. Tel. Co. (Ky.), 24 Alb. L. G. 33 N. Y. App. Div. ItiO. 283. See also Central Di.st., etc., Tel. ""'Malocliee v. Great Southern Tel., Co. V. Com., 114 Pa. St. 592, 7 Atl. 920. etc., Co., 49 La. Ann. 1690, 22 So. 922. Where, pending the injunction suit, the ™ Cumberland, etc., Tel. Co. v. Hen- telephono company sold and transfer- don, 71 S. W. 435, 24 Ky. L. Rep. 1271. red its property and rights to another, " Ovvensboro-Harrison Tel. Co. v. the suit cannot be continued against Wisdom, (;2 S. W. 529, 23 Ky. L. Rep. the purchaser merely as its successor. 97. CHAPTER XIII. TRANSMISSION AND DELIVERY OP MESSAGES— GENERAL NATURE OF LIABILITY. § 257. Telegraph companies. 258. Same continued — opinion on point. 259. Not liable as ordinary bailees for hire. 260. Same continued— telegraph and tclcplionc — liabilitii^s — dis- tinctions. 261. Same continued — telephone. 262. Message for person — make reasonable search. 263. Same continued — when compensated. 264. Long distance telephone — disconnected at intermediate points. 265. Duty of telegraph companies to transmit^arises not on contract alone. 266. Same continued^further duties. 267. Same continued — must accept proper messages — not im- proper or such as would subject the company to indictment. 268. Same continued — such as would subject to action of tort. 269. Same continued — lines down — other reasons. 270. Must be properly tendered — in writing. 271. Same continued — must be on company's blank. 272. Delivery to messenger boy — not delivery to company. 273. Same continued — prepayment of charges before accepting. 274. Same continued — failure to receive — damages — functions. 275. Transmit without delay. 276. Burden of evidence — delay — presumption. 277. Duty to inform sender when delay unavoidable. 278. Must transmit without error. 279. Degree of care in transmission. 280. Liability under statutes — all mistakes. 281. Same continued — damages — actual — err.n-s in ( raiisniission. 282. Duty to deliver — addressee — in general. 283. Excuse for non-delivery. 284. Same continued — not excused for. 285. Duty to inform sender of non-delivery. 286. To whom made — delivery. 287. Delivery to wife. 288. Delivery to hotel clei'k — not sufficient. 28!J. Where two parties have same name — delivery to one. 290. In care of another. 291. To authorize agent. 292. Manner of delivery — written copy. 293. No duty to forward messages. (248) ^ 257] AS TO MESSAGES LIABILITY. 249 294. Time to deliver. 295. Same continued— two messages of same nature received within office liouis. 296. Free delivery limit. 297. When sendee lives several miles from office. 298. Same continued — may waive right. 299. No delivery limit fixed. 300. Must use due diligence to deliver. 301. Same continued — illustrations. 302. Diligence exercised — evidence — burden of proof. 303. Failure to designate with accurateness the address. 304. Penalty imposed for failure to deliver. 305. Duty to preserve secrecy of message. 306. Same continued — imposed by statute. 307. Same continued— applicable to telephone companies. 308. Messages "in care of" common carriers. § 257. Telegraph Companies. Telegraph companies have been held, with one exception,^ to be liable for the incorrect transmission and safe delivery of messages only through the negligence of their servants. While they are not common carriers in the strict sense of the term, in that they are not insurers of a correct transmission of messages, the duty which they owe the public is almost the same. They must serve impartially all who apply to them for services after offering to comply with their reasonable regulations. They must use proper machinery, skilled employees and exercise due diligence in the transmission of mes- sages. So long as this is done, they will not be liable for damages as a result of errors made in the transmission; but so soon as they are guilty of negligence or willful default on the part of their em- ployees, and damages arise thereby, they will be liable. To be ex- cused from liability for such damages, they must show that the in- correct transmission of the message was not caused by any negligence or willful default on their part. In other words, they must show that tliey exercised the same due care and diligence in the transmis- sion and delivery of the message as would be exercised by a man of ordinary understanding and ability under similar circumstances. The business of these companies has become so great in the commercial 'Parks v. Alta California Tol. Co.. clianged hy statute; Civil Code Cal. 13 Cal. 422, 73 Am. Doc. 589. The SS21G2-21G8; West. U. Tel. Co. v. rule established in this case has been Coolc (C. C. A.), 61 Fed. 024. 250 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 257 world that, in order to accomplish the best ends in correctly making these transmissions, they should be held to the strictest accounta- bility in the operation of their work and in the transmission of their messages. While they are not insurers of a correct transmission of messages, yet on account of the importance of their undertaking they should be held to a strict observance of the absolute necessity of care on the part of their servants. § 258. Same continued — opinion on point. • ^N^otwithstanding the fact that, in an able opinion, telegraph com- panies were held to be liable as bailees for hire, yet in this same opin- ion good reasons were given why such companies should not be held liable as common carriers. It gives us pleasure to quote what the court has to say on this point with respect to their non-liability as common carriers: "There are three classes of cases in which the law has settled the principle, independent of the stipulations in the contract, to govern when alleged injuries have been received by one at the hands of another. These are, first, bailments ; second, duties undertaken by one claiming to be skilled in the matter which he un- dertakes, such as professional employments ; and, third, common car- riers. As to the two first, the principle is that reasonable and due care and skill, according to the nature and character of the work done or service rendered, is guaranteed, and, in ease of injury to be exempt the defendant must show the presence of this care and skill, or, what is the same thing, the absence of negligence and inex- cusable carelessness. As to the latter, to-wit, common carriers, the more stringent principle is, that nothing but an act of God or irre- sistible force, expressed in the books as the public enemies, will ex- empt. ISTow in which of these classes shall telegraph companies be placed, or to which have they been regarded as belonging? It is true, the business in which these companies are engaged is quasi- public, but there is a wide difference between them and common car- riers, and the foundation upon which the very stringent doctrine of non-exemption, except for an uncontrollable cause, is imposed by the law upon common carriers is altogether wanting as to a telegraph company. There is no motive or opportunity for a telegraph com- pany to make mistakes or commit errors. There is no inducement <§ 259] AS TO MESSAGES LIABILITY. 251 or possibility for sucli cuinpaiiics to appropriate anything which may be intrusted to them, to their own benefit, at the sacrifice of their employers interests. Their business is simply to transmit messages by the medium of that mysterious agent, electricity, which with in- ereasing progress is now being made to contribute so wonderfully and so usefully to our wants. In the discharge of their duties the prin- ciple qualifications required are experience, practice, and good faith on the part of their agents and servants, but even with the best quali- fied employees much depends upon electric, atmospheric, and other subtle influences beyond the reach of experience and the utmost skill. While, therefore, there is reason for holding them responsible for the qualifications necessary for the proper performance of the work which they purpose to do, as the first classes mentioned above are held, to- wit, professional employees and bailees, yet there is no reason for holding them as insurers like common carriers. Common carriers transport goods, merchandise and other corporeal materials, whicJi are constantly in their possession from the commencement of their trip until the destinations are reached, and it is entirely reasonable that they should guard and protect these goods against all dangers which can be warded off by human power. But telegraph companies transmit ideas — intangible and fleeting things — which when placed upon the wire instantly escape from the hands of the operators, and in a moment, yea, in the twinkling of an eye, are hundreds and thou- sands of miles away, far beyond the reach and control of him who started them upon their distant mission, passing through different parallels of latitude or degrees of longitude, as the case may be, with the rapidity of thought, but encountering for themselves all the dan- gers or obstacles that mav be met bv the way. To apply the rule of common carriers to these companies would, it seems to us, be ex- tremely unjust, and to hold them absolutely liable as insurers would greatly impair this mode of correspondence, crippling if not destroy- ing a most important and growing department of business." - § 259. Not liable as ordinary bailees for hire. It has been held by some courts that the legal status of telegraph companies was that of ordinary bailees for hire, and liable for the in- ^Pinckney V. Telephone Co.. 19 S. Tel. Co. v. Blandianl, 45 Am. Kop. 487. C 71. cited in note to case, West. U 252 TELEGRAPH AND TELEPHOXE COMPANIES. [^ 259 correct transmission and delivery of messages as such;^ but as said on this subject under a different head, this is an erroneous idea. There is no doubt but that there exists a similarity between the lia- bilities of the two; but on account of the posi.tion they occupy to- ward the public, the ground on which the liability arises is differ- ent, thereby making the liability itself different. They are not in- surers of the property intrusted to their care, and are liable only for negligence in the performance of their trust. To this extent there is a similarity, but for the reason that the public has no interest in an ordinary bailee, the latter may limit its liability by contract, on which its liability solely arises. On the other hand, the public has an interest in telegraph companies, and to that extent it must con- trol. As his been often said, they cannot discriminate, but must act impartially toward all. Their duties are not founded, as ordinary bailees, on contracts altogether, but are derived from the public trust which they occupy. They may limit their liabilities as bailee to a certain extent by reasonable regulations, yet they cannot enforce a regulation by which they may be exonerated for the negligence of their servants. There is no possible way by which they may con- tract away their liabilities for the negligence in the transmission and delivery of messages. It is a well-known principle of law that an ordinaiy bailee for hire, because it is not exercising a public duty, may choose with whomsoever it may see fit to do business and may contract in such manner as to relieve it of all responsibilities; but this is not the rule applicable to telegraph companies.'* § 260. Same continued — telegraph and telephone — liabilities — dis- tinctions. Telegraph and telephone companies occupy a very peculiar posi- tion toward the public with respect to their duties in the faithful per- formance of their mission, and the liabilities arising therefrom for a non-performance of same. They are not strictly common carriers, ^See note 1. v. Xe\v York, ttc, Printing; Co., 18 Md. ^Gillis V. West. U. Tel. Co., 61 Vt. .341. 81 Am. Dec. 607; Smithson v. 461, 17 All. 736, 15 Am. St. Rep. 917; United States Telegraph Co., 29 Md. West. U. Tel. Co. v. Fontaine, 58 Ga. 102; Pinckney v. West. U. Tel. Co., 19 4.3.3; West. U. Tel. Co. v. Blanchard, S. Cur. 71, 45 Am. Rep. 765. 68 Ga. 299, 45 Am. Rep. 480; Birney <^ 260] AS TO MESSAGES LIABILITY. 253 nor are they ordinary bailees for hire, but they have features resemb- ling both of these. In the first place, they must furnish equal facili- ties impartially to all and herein they resemble common carriers ; but they are likened unto bailees in that they are not insurers. In other words, they occupy a land of middle ground between the two. They may be class as a species of agency, acting in behalf of both sender and sendee or those conversing as principals, and liable as any other agent occupying a similar position. They are a go-between, or a means by which people in remote sections are brought into almost as close contact with each other, with respect to the communication of thoughts and ideas, as if they were together in person. While the object of these companies are the same — the transmission of intelli- gence by means of electricity — yet the manner in which the objects are carried out is so varied that the responsibility imposed on each is somewhat different. For the reason that the manner of transmitting news over a telegraph company is manipulated almost entirely by servants, skilled and experienced in such business, the parties com- municating doing nothing more than properly preparing and deliver- ing the message to the company, it is under a greater responsibility toward its patrons, than a telephone company which only furnishes the means by which the communicants are brought together. It is true that the latter company must furaish, impartially, the best in- struments, facilities, connections and accommodations to all, serve all in the regular time in which they call, and put the applicants in proper connection, so they may be enabled to understand each other while talking. When this is done, the company's responsibilities are at an end. Any misunderstanding of the conversation brought about by the default of the company, which could be imputed as neg- ligence, if the same were made by a telegraph company, should be corrected by the communicants themselves while conversing, with the assistance of the company; should, however, the latter be the caust- of the misunderstanding, through its negligence, it should be liable for all damages arising thereby. In other words, for the reason of the fact that those who canw on conversations over telephones enter into and assume some of the burden? connected witli the means of Transmitting tlio intelligence, which is otherwise borne exclusively by telegraph cnm]ninio^. they should likewise assume some of the respon- 254r TELEGRAPH AXD TELEPHONE COMPAJflES. [<^ 260 ?ibilities, or, rather, relieve the company of some of them. Of course they may under certain conditions be just as liable as telegraph com- panies, as where the servant of the company as agent for the latter, carries on the conversation for another party. § 261. Same continued — telephone. It is not the duty of telephone companies to deliver messages be- yond the termini of their lines, as it is not presumed, at the time the parties are placed in direct communication with each other, that such was the duty of these companies ; but, where the agent of the com- pany has the apparent authority to receive messages for delivery, the company will be liable for damages in the negligent performance of .the undertaking.^ Thus, where it is agreed, through the knowledge of the company, betw^een a party, who pays the charges for trans- mission and an extra charge for the delivery, and the agent at one of the termini of the company's line that the latter will receive and deliver a message two miles from the office of the company, and the agent negligently delays in delivering same for eight hours after the message is received, and damages arise thereby, the company will be liable.*^ And it will be no ground for defense that the agent be- lieved that the sendee would not be benefited or would not be enabled to comply with the wishes of the message by an earlier and more prompt delivery of same. It is no duty of the agent to speculate as to the necessity of a prompt delivery of the message, but he should use due diligence in making a prompt delivery.^ In order for the sendee to recover damages, under such circumstances, he must prove that he could and would have complied with the apparent wishes of the message.^ ^ In many cases, telephone companies " Cumberland Tel. Co. v. Brown, 104 contract to send messages in the nature Tenn. 50, 50 L. R. A. 277, 78 Am. St. of telegrams and when such is the case, Rep. 906; Southwestern, etc., Tel. Co. they are under the same obligations v. Dale, 27 S. W. 1050. and subject to the same liabilities as ' See note 4. telegraph companies, and are bound by * Telephone Co. v. Brown, 104 Tenn. the ^ame rules. See notes to West. U. 56, 78 Am. St. Rep. 906, 50 L. R. A. Tel. Co. V. Cooper, 10 Am. St. Rep. 277. 778; West. U. Tel. Co. v. Luck, 66 Am. St. Rep. 873. <§ 262] AS TO MESSAGES LIABILITY. 255 § 262. Message for person — make reasonable search. As said above, it is prcsiiined that parties desiring to converse over telephone lines are put in direct communication with each other, and that it is not under the same duty to deliver the messages as it is for telegraph companies to deliver telegrams, unless it apparently as- sume the duty; but in order to place the parties in communication with each other it is often necessary to search for the party called. For instance, suppose a call is put in for a certain person, who may or may not be a subscriber, and it is necessary, in order to get the party, to send out and notify him of the call. The question which presents itself it. Is it the duty of the company to send out for the party called ? It seems to us that if the party wanted is within a reasonable distance of the company's exchange it is the duty of the latter to make reasonable efforts to reach him ; surely it is, if extra charges have been collected for such services. Many times such calls are made for parties who are entire strangers in the tow^n, to which doubtless, there are no other means of reaching him — as by telegram. To say that the company is not under some obligations to the public to make an effort to apprise him of the call would be nothing less than to release it from performing one of its public duties ; that is, to furnish equal facilities to all who apply for services, after offer- ing to comply with its reasonable regulations. Although, it is rather difficult, in this instance, to lay down any principle of law, as a stand- ard of measurement, in determining what Avould be a reasonable dis- tance, within which search should be made, yet each case should he taken and considered somewhat on its own merits. By the construc- tion of an Indiana statute, it has been held that it is the duty of telephone companies, in that state, to notify a person living within a reasonable distance of the receiving station that he is w^anted.^ It does not seem to us that it is necessary- for the existence of such a statute, in order to impose on the company the duty of notifying a person who lives within a reasonable distance of the receiving office ; but the question to be decided is, What is a reasonable distance from the receiving office to where the party wanted lives ? It is very evi- dent that the company is not under the same obligations it otherwise would be, if extra charges had been collected for performing this "Central U. Tel. Co. v. Swoveland, 14 Ind. App. 341. 256 TELEGIiAPH A^'i) TELEPHONE COMPANIES. [<^ 262 service. So, while it may be seen that this is one of the duties of these companies, yet it is one not to be so closely observed as those for which they are directly compensated. § 263. Same continued — when compensated. The preceding sections have reference particularly to calls made where no extra charges have been collected for delivery. If the com- pany has been compensated additionally for its services in getting the party called to the telephone, it will be under the same obligation to discharge this duty as is imposed on telegraph companies for deliv- ering telegrams, under like circumstances. A greater per cent of the telephone exchanges are in country towns, and the revenues de- rived from this kind of services are not always sufficient to justify the company in keeping a messenger boy. But wherever, at such places, a call has been put in for a certain party and extra charges have been collected for such services, it is the duty of the company to make a reasonable effort to find the party called, and should some one be engaged or employed by the agent of the company to perform such services, it will be just as liable for the negligence of such per- son in the discharge of such services, as if he was a penuanent em- ployee whose duties were of this particular nature. To hold other- wise, would relieve these companies of one of their public functions, and furnish them a means of avoiding many of their liabilities. So, it will be seen, under such circumstances, that it is not only the duty of the company to exercise a reasonable degree of care in the selection of its messengers, but it must also exercise the same care in seeing that the messenger properly discharged his duty in making a rea- sonable search for the party called. § 264. Long distance telephone — disconnected at intermediate points. A long distance telephone company, holding itself out to furnish connections beyond the termini of its lines, is under obligations to the public to perform such duty ; and, on a failure to secure such con- nections, through the negligence of its agents, at the terminus of its lines whereby damages are incurred, the company will be liable for such damages.^*^ When the company holds itself out to perform such '"Southwestern Tel. Co. v. Taylor, 2fi Tex. Civ. Ajii). 70. ^ 265] AS TO MESSAGES LIABILITY. 257 duty, it is incumljcnt on it to discharge that duty to the be^t of its ability. In other words, it is part of the contract continuously of- fered to the public, at all times, and when any applicant accepts the benefits arising therefrom, by compensating the company for such services, the company must carry out its part of the contract, and if a failure to do so is caused by its servants negligently failing to furnish the proper connection with other lines, over which the dis- tant communicant is finally to be reached, and damages arising there- from, the company will be liable. ^^ § 265. Duty of telegraph companies to transmit — arises not on contract alone. As heretofore said, the duties and obligations of telegraph com- panies to transmit and deliver messages do not arise altogether from contracts. They are quasi-public corporations, exercising privileges acquired from the state and federal government, which im]x»ses on them a greater duty than could be enjoyed if it were a mere contract made between two individuals. It is true, that thoy can make rea- sonable contracts with their patrons whereby thoy may limit, to a certain extent, their common law liabilities, but they cannot evade their entire duties and obligations which they owe the public by a contract. This would give them too much power by which frauds would be perpetrated and impositions cast upon the public; since it is often the case that these companies are called on to transmit mes- sages of the greatest importance, and in order to accomplish the pur- poses for which they are sent, they should be transmitted in the most possible haste. When this is the case, the sender has no time to in- vestigate the purport and nature of the contract, and should not be forced, at sueli a time, to accept any contract M-hioli may be held out to him by the company. It is a duty which they owe the government to make prompt and correct transmissions of messages, and it is not necessary that such a duty be imposed on them by the statutes ; since it is a common law duty. It is trno that the contract for seudin;,' " Smith V. West. U. Tel. Co.. 84 Tex. held therein that it was under obliga- 359, 31 Am. St. Eep. fjO. In this case tions to make a prompt and correct de- the defendant was the connecting com- livery of the toleirram. regardless of the pany over whose lines the message was contract made with the initial line to reach it< dostinatioii and it was with the sender. T. .^- T.— 17 258 TELEGKAPH AND TELEPHONE COMPANIES. [<^ 265 gives force and effect to the duty which is imposed upon such com- panies, but the contract alone does not fix the measure of their du- ties and obligations. This contract must be controlled, to a certain extent, by the public duty ; since if there is any material part of the contract in conflict with this public duty, it will be of no force and effect. 12 § 266. Same continued — further duties. Telegraph companies are under a legal duty to accept, transmit and deliver, without error or delay, all proper messages presented, after they have been compensated for such service, and any injury arising proximately out of a failure to perform such duty, will subject them to damages. They are exercising a public employment and must sub- ject themselves to all demands of the government. As public ser- vants, they should be ready and willing to obey any mandate or r€'- quest of the public. "Their relation to the public imposes upon them the duty of undertaking as well as the duty of performing, and the violation of either duty is a negligence, a tort. It is the equivalent, therefore, of an affirmative interference by a mere private person to hinder or obstruct communication. For one of these companies not to receive or not to transmit and deliver a dispatch when it ought to do so is more than a refusal to contract or than the breach of a con- tract. It is a wrong as pronounced as would be that of a person who should forcibly exclude another from the telegraph office, and pre- vent him from handing in a dispatch which he desired to lodge for transmission. In dealing Avith the wrong as such, the element of contract is not involved."^^ § 267. Same continued — must accept proper messages — not im- proper or such as would subject the company to indict- ment. The first duty of these companies is to accept all i)roper messages presented to them for transmission, after a payment has been made, "Smith V. West. U. Tel. Co., 83 Ky. U. Tel. Co. v. I'vcynolds, 77 Va. 173, 40 104, 4 Am. St. Rep. 126; Ellis v. Am- Am. Rep. 715. erican Tel. Co., 13 Allen (Mass.) 231; "Gray v. West. I'. Tel. Co.. 87 Ga. Warlsworth v. West. U. Tel. Co., 86 350, 27 Am. St. Rep. 2()0, 14 L. R. A. Tenn. 695, 6 Am. St. Rep. 864; West 95, 13 S. E. 562. § 26b] AS TU .UKSSAGKS LlAlilLiTV. L'5'J or an olier to pay a reasonable fcuiii iur oucli serviceij. While this i>> the general rule, yet there may be instances when these companies may refuse to accept messages for transmission.^"* Thus they may refuse to accept a message for transmission, which clearly shows on its face matters which would subject them to a criminal prosecution. Xo person is under any legal duty, or can be compelleil by law to com- mit, foster or aid in the commission of a crime. The laws were enacted and are enforced to accomplish the direct opposite results. Telegraph companies are but persons in the eye of the law, enjoying (•ertain ])rivileges and imniunities as such and for the reason that their rights and duties toward the government are somewhat differ- ent from that of individuals, is no reason why they should be under any obligation to the public' to do an act which would make them liable criminally. It follows, therefore, that they are under no obli- gations, or can be forced, to accept a message for transmission which would have the tendency of subjecting them to a criminal prosecu- tion, either as a principal or an accessory. To relieve the company however of this duty, it must clearly apj^ear on the face of the mes- sage that it would subject it to an indictment, and every doubt should be construed in favor of the message. The moral effect of the telegram would not b(^ for their consideration, and yet, thev mav re- fuse to accept any message which shows any indecency or profanity on its face. In many instances, the messages presented to the company are written in such a style or in such a manner as that it would not be apprised of their meaning or purport — and among which there may be some which are very immoral; yet, the company, not being able to ascertain the meaning of these on their face, it being presumed that the operators could not read the niin<1s and consciences of the sender — should not, therefore, be held li;iblc for their moral effect.'"'^ § 268. Same continued — such as would subject to action of tort. So, for the same reasons, a telegraph company is not under obli- gations to any one to accept a message for transmission, which would lay it liable to an action of tort. While they may and do commit torts in many and various ways, yet they cannot he forced to do any act '* Alexander v. WoM. V. Tel. Co.. r.(i "Gray v. \Yos1. T. Tel. Co.. 87 Ga. Miss. 101. .-) So. .SOT. 14 Am. St. Kop. :?.iO. l.S S. E. 5Cr2. 14 L. R. A. 95. 27 556, 3 L. K. A. 71. Am. St. Rep. 2G0; Smith v. West. U. T( 1. Co.. L^4 Kv. 004. 260 TELEGRAPH AND TELEPHONE COMPANIES. [§ 268 wliich would make them liable for one.^^ "Doubtless," as was said on this subject, "a dispatch to be entitled to transmission must be free from open indecency or profanity, and perhaps other vices of lang- uage might condemn it; but supposing it to be proper in tone and expression, wc should say that the companies would have no concern with its import unless it sought to subserve either crime or tort. If it disclosed either of these objects, it seems to us that the company, for its protection, might and should refuse to handle it. It would be unreasonable to suppose that the legislature intended telegraph com- panies to aid in the perpetration of crimes or actionable wrongs, for this would be to constrain them to do by legislative mandate what they would have no right to do bv their own choice. "^'^ § 269. Same continued — lines down — other reasons. If the company's lines are down, or for any other reason it cannot transmit the messages, it may decline to accept same ; but if the com- pany accepts the message, knowing these facts, without informing the sender, it will be liable for a failure to transmit, although the transmission was impossible. ^^ Ihus, where the company's agent receives the message to be transmitted to a certain place, it will be liable for a failure to transmit, even though the company has no of- fice at this place, which fact the agent did not know until after the message had been received. But for the reason that the name of the station is not entered in the official guide book, is no reason for refus- ing to receive a message for that place. ^^ It is presumed that the agent knows or has a means of knowing all the stations of the com- pany.^" In fact, this is the reason why these companies should be required to keep an official guide book, and if the name of the station is not entered or is incorrectly entered therein, this negligence itself would make the company liable. It seems that it would not only be liable for a failure to transmit to a station on its line, not entered on the official guide book, but to any other place on any other line not ^»Gray v. West. U. Tel. Co., 87 Ga. Co., 29 Tex. Civ. App. 520, 69 S. W. 350, 14 L. R. A. 95, 27 Am. St. Rep. 181. 260, 13 S. E. 562. "West. U. Tel. Co. v. Downs, 25 "Id. Tex. Civ. App. 597, 62 S. W. 1078. " West. U. Tel. Co. v. Birge-Forbes =» West. U. Tel. Co. v. Jones, 69 Mi?s. 658, 13 So 471, 30 Am. St. Rep. 579. § 271] AS TO MESSAGES LIABILITY. 261 officially entered in this guide book, but to a place it could reach. In such a case the company would be liable as in the nature of an agent for the company on whose line the place was located, and by whose negligence, the name of the station had been omitted. In the last cited case it would not be good reason to hold either the receiving com- pany, or the connecting company over whose line the message was to finally reach its destination, liable for a failure to transmit, where the latter company's lines were down, which fact was not known by the first company but was known by the latter. § 270. Must be properly tendered — in writing. Xo duty or liability on the part of a telegraph company, with respect to the transmission of a message arises until it has been prop- erly tendered at the company's office for transmission. It must be in conformity to the reasonable rules and regulations of the company. One of the rules of the company, and one to be complied with in or- der to constitute proper tender, is that the message must be in writ- ing. "It is common knowledge," as was said by Judge Cambell, "that messages are required to be written, and upon the blanks of the com- pany, and it ^vould be hazardous to pursue any other course. "^^ He further said : "In the absence of s'atisfactory evidence of a known course of business by the telegraph company to receive verbal mes- sages orally delivered to operators for transmission, we are not wil- ling to sanction the proposition that failure to transmit such a mes- sage is a ground for recovery against the company, either by statute or common law." -^ When it is the rule, that the messages shall be in writing, unless it has been the custom of the company to receive them orally, it is not necessary that they should be in any particular language or in any peculiar style, provided the operator of the com- pany understands the language or style. In other words, it is not nec- essary that they know the meaning of the message, provided they have the knowledge of what to send, and how. § 271. Same continued — must be on company's blank, x\nother regulation of the company, and one which is generally held to he reasonable, is, that the message shall be written on one of ^'West. U. Tel. Co. v. Dozier. 7 So. "Id. 325. 262 TELEGRAPH AND TELEPHONE COMPANIES, ["^ 271 the company's blank forms. Mere delivery of a message, written on a leaf torn from a blank book, without any word spoken either by the plaintiff's messenger or the company's operator concerning the sending of the message, and an absence of any payment made, or ten- dered, of the price for transmission, is insufficient to create a lia- bility against the company for failing to send such message.^^ But if the message is received by the company and paid for by the sender^ the company is bound to transmit it, although it is written on paper other than its usual blanks.^^ A presumption of delivery for transmission arises from the receipt of a message written on one of the comj)any's blanks.^'' But the fact that the message was not on one of the company's regular blanks, nor in writing at all, but was merely telephoned to the operator, will not affect the company's liability where the negligence complained of is a failure to deliver after transmission. The rule that the company's forms shall be used is a reasonable one, for it contains that part of the company's con- tract which must be accepted and agreed to by the sender; and to compel it to accept messages on other paper would deprive it of some of the privileges and immunities it could otherwise claim. It is true that the courts have held that some of these stipulations were of no force and effect, hut this is no reason why such companies may not relieve themselves from liabilities by those which are reason- able. These companies are entitled to the protection of the laws, and this rule will protect them in many instances and should be enforced. The message must be made out on the blank form and signed either bj the sender or his agent in order to hold him liable for the stipu- lation therein. For, if an agent of the telegraph company receives a message for transmission, written on a plain piece of paper, and attaches it to one of such blanks without callino; tlie attention of the sender to the regulations printed thereon, he acts as agent for the company alone, and the sender is not bound by such regulations ; but he may recover for the negligence of the company in the transmis- sion of the message.^^ =^'West. U. Tel. Co. v. Liddell, 8 So. =°West. U. Tel. Co v. Riissel, 31 S. 510. See note to West. U. Tel. Co., W. 698. V. Blanchard, 45 Am. Rep. 490. 26jjj^j.j.is y West. U. Tel. Co., 121 ^West. U. Tel. Co. v. Jones, 69 Miss. Ala. 519, 25 So. 910, 77 Am. St. Rep. 658, 13 So. 471, 30 Am. St. Eep. 579. 70. <5, 273] AS TO MESSAGES LIABILITY. 263 § 272. Delivery to messenger boy — not delivery to company. A ck'livery of a message to one of the company's messenger boys, written on one of its blanks, is not a delivery to the company unless ■ it has been accepted by the latter at one of the transmitting offices. It is very often the case, that a message is written out on one of the company's blanks, and given to one of the messenger boys by the sender with the request that he deliver it to the company for trans- mission; notwithstanding the fact that this may be the usual way the sender lias of delivering messages for transmission, yet, a delivery to the company in such a manner would not be a proper delivery to it. The reason, assigned for the soundness of this rule, is, that on nearly if not all of these blanks there is a stipulation to the effect, that when messages are delivered to the messenger boy, he shall be considered the agent of the sender and not that of the company in that partic- ular business, and when the sender signs the message he should be bound by this stipulation. It is a reasonable regulation; since, in some cases, the operator of the company may have reasons for not accepting a message for transmission and of which the messenger would have no knowledge. It is well known that the messengers are usually young and inexperienced boys, and of course are not fami- liar with the rules in regard to the proper messages to be accepted for transmission. It follows, therefore, that if a delivei-j- to a mes- senger should be considered a delivery to the company, the latter would be liable for failure to send a message delivered to its messen- ger, although to do so would subject the company to an indictment or to an actionable wrong.-" If, however, the message has been deliver- ed to one of the transmitting offices of the company, and it is a proper message for transmission^ it is then a delivery to the company.^^ § 273. Same continued — prepayment of charges before accepting. Although telegraph companies are exercising a public function and must, therefore, serve all impartially who apply to them, yet, for this reason, it is not presumed that these companies can be forced to accept a message for transmission without first being paid a reason- » '■ "Stamcy v. West. U. Tel. Co., 92 =«Ayers v. West. U. Tel. Co., 65 X. Ga. 61.3. 44 Am. St. Eep. 95, 18 S. E. Y. App. Div. 149. inos. 264 TELEGKAPII AND TELEPHONE COMPANIES. [§ 273 able compensation for its transmission, or a tender made for same.-'^ The fixed rates for the transmission and delivery having been paid, or an offer having been made in legal tender, it is then a suflficient delivery to the company for acceptance. The company may refuse, to accept a message until this requirement has been performed; but, if the agent has accepted one for transmission without prepayment, the company cannot escape liability for delay, by evidence that its rule required prepayment, in the absence of a showing that the sender knew of such a rule.^° Of course there may be exceptions to this rule, as, for instance, where a message is presented to a company with the instruction of the sender to collect the charges from the party to whom the message is addressed. It is then the duty of the company to accept the message, if it has reasonable grounds to believe that the sendee will pay for its transmission. § 274. Same continued — failure to receive — damages — functions. When a telegraph company wilfully refuses to accept a proper message from any one who has complied with all the reasonable con- ditions demanded by the company, it will be liable for exemplary damages, although it will not be liable for such damages, where its refusal to transmit arises from a misunderstanding as to the nature and meaning of the message.^ ^ Thus, where a company refuses to accept a message for transmission because it had reasons to believe that it was intended to promote an illegal purpose, but in which it was mistaken ; the court held that it was liable in damages, but could not be held liable for exemplary or punitive damages. ^^ Where a message is properly prepared and presented and the company then refuses to accept it, the sender may enforce the acceptance by man- damus proceedings.^^ § 275. Transmit without delay. The next duty of a telegraph company, after accepting a message, is to transmit it without unnecessary delay ; ^* and, on the failure to ^ West. U. Tel. Co. v. Dubois, 128 '' Friedman v. Gold, etc., Tel. Co., 32 111.248,21 N.E.4, 15 Am. St. Rep. 109. Hun (N. Y.) 4. *^ West. U. Tel. Co. v. Cunningham, '*A company will not be liable for 14 So. 579. failure to transmit a message where *^ West. U. Tel. Co. v. Ferguson, 57 there is no Internal Revenue Stamp af- Ind. 495, fixed thereto as required by law. West. ^' Id. U. Tel. Co. V. Young, 3G So. 374. <^ 275] AS TO MESSAGES LIABILITY. 265 lu SO, the company will be liable to any one who may be damaged tiiereby.^° One of the fundamental reasons why the business of these companies has become so great, and that which induces the public to resort to them is, that it is a means by which the business of the greatest importance may be accomplished in the shortest possible time. This being the case, these companies, by implication, neces- sarily hold themselves out to the public to use all diligence in the transmission of all messages intrusted to them. This does not mean however an immediate transmission at all times. If it is not within the power of the company to make an immediate transmission, as where it is prevented from making such by the public enemy or by the act of God, it would not be liable for any injury caused by the de- lay in the transmission. So, also, if the delay has been caused by tlie company transmitting the message, without negligence, in a cir- cuitous route, ^^' where the same could be sent direct, on the account of the arrangement of its offices, it would not be liable.^' And if it be necessary to send the message through a repeating office, sufficient time must be given for other business at that office f^ but if the busi- ness is such at the repeating office, or at any other office, as to re- quire more than one operator, and only one being in charge of such office, the company would be liable for a delay caused thereby.^^ If the delay has been caused by any undue advantage of the company over the sender, it will not be relieved from any injuries arising di- •■" West. U. Tel. Co.' v. Cunningham, McPeek v. West. U. Tel Co., 107 Iowa 99 Ala. 314, 14 So. 579; Bartlett v. 356, 78 N. W. 83, 43" L. R. A. 214, 70 West. U. Tel. Co., 62 Me. 209, 16 Am. Am. St. Kep. 205; Johnson v. West. U. Rep. 404; West. U. Tel. Co. v. Jobe, Tel. Co., 79 Miss. 58, 89 Am. St. Rep. 6 Texas Civ. App. 403. It is liable for 584. 29 So. 787. such damage as is the direct and nat- ="Leavell v. West. U. Tel. Co., 116 ural result of its failure to deliver a N. Car. 211, 21 S. E. 391, 27 L. R. A. message intru^tpd to it for transmis- 843, 47 Am. St. Rep. 798; West. U. sion: West. U. Tel. Co. v. Broesche, 72 Tel. Co. v. Jones, 09 Miss. 658, 13 So. Te.x. 654, 13 Am. St. Rep. 772. It is 471, 30 Am. St. Rep. 579; West. U. said that a person injured by the delay Tel. Co. v. Henderson, 89 Ala. 510, 18 in delivering a message to him is not Am. St. Itep. 155, 7 So. 419. limited in his recovery to such damages '" Beasley v. West. U. Tel. Co.. 30 as might reasonably might have been Fed. 181. within the contemplation of the par- »Behm v. West. U. Tel. Co., 8 Bliss ties, but recovery may be had for all (U. S.) 131. the injurious results which flow there- ''West. U. Tel. Co. v. Circle. 10 Am. from by ordinary natural .sequence: & Kng. Corp. Cas. 010. 266 TELEPirONE AND TELEGRAPH COMPANIES. [<§, 275 rectly therefrom. As where the sender's consent to a delay, under a misapprehension induced by the company's agent, creates no es- toppel on his part.""^ § 276. Burden of evidence — delay — presumption. When an action is being maintained for an injury caused by a de- lay in the transmission of a message, the burden of proof is on the company to show that the delay was not caused by its negligence.*^ It would be an unreasonable rule of evidence, to compel the sender to furnish such proof, since, to do so, would be nothing less than to deprive him of his redress for injuries arising from such causes. The transmission of the message is within the exclusive control of the com- pany's servants, and if any of these should be guilty of negligence, it would generally be committed beyond the reach of the sender, but within the knowledge of the company. This being the case, it is better for the burden of proof to be on the company, when it may ex- onerate itself for the negligent act, rather than to impose such proof on the sender. In some instances, a delay in the transmission of messages will be presumed to have been caused by the company's neg- ligence. Thus, a delay of ten or twelve hours in transmission, if un- explained, will create a persumption of negligence on the part of the company,*- and a delay of very much less time may, under pecu- liar circumstances, raise the presumption of negligence;"*^ yet the company may overcome this presumption by competent evidence.** § 277. Duty to inform sender when delay unavoidable. When a telegraph company, for any cause, cannot transmit a mes- sage, or when it will be unavoidably delayed, it is the duty of its ^"West. U. Tel. Co. v. Seffel, 71 S. 412; 35 So. 829; West. U. Tel. Co. v. W. 616, 65 S. W. 897. Boots, 10 Tex. Civ. App. 540. A delay " West. U. Tel. Co. v. Circle, 10 Am. of three days in the delivery of a tele- & Eng. Corp. Cas. 610; Pope v. West. gram has been held to be prima facie U. Tel. Co., 9 III. App. 587; West. U. evidence of negligence on the part of Tel. Co. V. Cooper, 71 Tex. 507, 10 Am. the company: Ilarkness v. West. U. St. Rep. 772, 1 L. R. A. 728. Tel. Co., 73 Iowa 190, 34 N. W. 811, ^^ Kendall v. West. U. Tel. Co., 56 5 Am. St. Rep. 672. Mo. App. 192; West. U. Tel. Co. v. « Smith v. West. U. Tel. Co., 57 Mo. Clark, 25 S. W. 990. App. 259. *» Postal Tel. Co. v. Rhett, 33 So. -^ 278] AS TO messagp:s — liability. 2G7 agent, in all cases, to inform the sender of such fact; especially when the message shows on the face its importance : when these facts are within the knowledge of the agent, or such as he ought to know, and he fails to give such information, this will be evidence of jiegligence, although it may not be negligence per se.'*'^ ]\ritchell, C. J., in dis- cussing this subject, said : "It might well be that in a case when a message was delivered, which showed upon its face the importance of speedy transmission, and other means of making the communication were unavoidable to the sender, which might be resorted to, if he was informed that the one chosen was ineffectual, or liis conduct might otherwise be materially controlled thereby, the company would be bound at its peril to ascertain and disclose its inability to serve him, or render itself liable to respond in damages."'**' It may not be negligence within itself in failing to inform the sender of the un- avoidable delay in transmission, but it would be unquestionably evi- dence of negligence. "In many instances, by such a course, the dam- age would be greatly lessened, if not entirely avoided. A better ad- dress might be given, mutual friends might be communicated with, or even a letter might reach the addressee. In any event the sender might be relieved from great anxiety, and would know what to ex- pect. ^Moreover, it would tend to show diligence on the part of the company. "^'^ § 278. Must transmit without error. After a telegraph company has accepted a message to be sent over its wires, it must exercise due and proper care to transmit it in thf^ exact words in which it was delivered.^^ They are not common car- "Fleichner v. Pae. Postal Tel. Cable Car. 431. 78 Ain. St. Rep. 668, 35 S. E. Co., 55 Fed. 738; West. U. Tel. Co. v. 810. Cohen, 73 Ga. 522; Bierhans v. West. "West. U. Tel. Co. v. Harding. 10 U Tel. Co., 8 Ind. 246; West. U. Tel. Am. & Eng. Corp. Cas. 617. Co. V. Harding, 103 Ind. 505, 3 N. E. *^ Hendricks v. West. U. Tel. Co.. 126 172; W^est. U. Tel. Co. v. Birge-Forbes X. Car. 304. 78 Am. St. Rep. 658. 35 Co., 29 Tex. Civ. App. 526. Compare S. E. 810. Ohio R., etc., Co. V. Applewhite, 52 « Kemp v. West. U. Tol. Co., 28 Neb. Ind. 540; Pittsburg, etc., R. Co. v. 001, 44 N. W. 10()4, 26 Am. St. Rep. Xuzzum, 50 Ind. 141, 19 Am. Rep. 703; 363. and this irrespective of the ques- I.andie v. West. U. Tel. Co., 126 N. tion of punctuality in their delivery: West. U. Tel. Co. v. Roundtree, 92 Ga. 268 TELEGRAPH AXD TELEPHONE COMPANIES. [<^ 278 riers aud are not, therefore, insurers of a correct transmission of mes- sages, but, as they have assumed public functions and solicited public trade, proper care, under the circumstances, must be exercised in carrying on their business. The value of a message depends upon its correctness. If it is changed in any material part, it is not the same message as that delivered for transmission, and may materially affect the rights of both the person sending and the person receiving it.*^ Oftentimes messages sent by telegrams are of the most im- portant class of news, and are prepared in the briefest manner; the slightest change or error made by the company, might likely incur serious injury or loss. It is a further fact that the transmission of these messages is intrusted to the exclusive control of the servants of the company — the sender doing nothing more than preparing the message for transmission. The companies for these reasons should prepare themselves with the best material for such business, and have the most suitable, skilled and competent men to manage and operate their machinery. Telegraph companies are often confronted with many uncontrollable hindrances: as, where the wires are exposed to the inference of strangers; a surcharge of electricity in the at- mosphere; or a failure or an irregularity in the electrical current, may stop communication: and, they are also subject to danger from accident, malice and climatic influences. ^° In the early state of their existence, they were more often interfered with by these hin- drances, but many of these by degrees have been overcome by im- provements in their machinery. We can look back but a few years and marvel at the vast improvements which have been injected into this line of business, and no one can imagine what a few years in the future will bring about. It will be but a question of time when these companies will have made such vast improvements on their in- struments, as will enable them to overcome a greater part of these Gil, 18 S. E. 979, 44 Am. St. Rep. 93 West. U. Tel. Co. v. Dubois, 128 111 248, 21 N. E. 4, 15 Am. St. Rep. 109: Pegram v. West. U. Tel. Co., 100 N Car. 28, G S. E. 770, 6 Am. St. Rep 557. See extended notes to West. U Tel. Co. V. Blanchard, 45 Am. Rep Ilyer, 1 Am. St. Rep. 229; and. Postal Tel. Cable Co. v. Lathrop, 181 111. 575, 19 Am. St. Rep. 55, 7 L. R. A. 474, 54 N. E. 1058. « Kemp V. West. U. Tel. Co., 28 Neb. GGl, 26 Am. St. Rep. 363, 44 N. W. 1064. 496; West. U. Tel. Co. v. Cooper, 10 «• Smith v. West. U. Tel. Co., 83 Ky. Am. St. Rep. 784; West. U. Tel. Co. v. 104, 4 Am. St. Rep. 126. § 279] AS TO MESSAGES LIABILITY, 269 hindrances, and, wIh'u the time should come, they shuuhl be held as insurers of an accurate and correct transmission of messages. § 279. Degree of care in transmission. While telegraph companies are not held liable as insurers; yet, on the account of the importance and magnitude of the business intrust- ed to their care, the very greatest degree of care and accuracy should be imjiosed upon them. It is not understood, however,that this would impose a liability upon the company for want of skill or knowledge not reasonably attainable in the art. iSTor for errors " Shingleur v. West. U. Tel. Co., 72 Tel. Co. V. Edsall. 74 Tex. 329, 15 Am. :\Iiss. 1030, 18 So. 425. 44 Am. St. St. Rep. 833: Alexander v. West. U. Rep. 93, 30 L. R. A. 660. Tel. Co., 66 Miss. 161, 5 So. 397, 3 L. «•> West. U. Tel. Co. v. Cougar, 84 R. A. 71, 14 Am. St. Rep. 556; Reed Ind. 176; West. U. Tel. Co. v. Cooper. V. West. U. Tel. Co., 135 Mo. 661, 37 71 Tex. 507, 10 Am. St. Rep. 772, 1 S. W. 904, 34 L. R. A. 492, 58 Am. St. L. R. A. 728; Pope v. West. U. Tel. Rep. 609: Wost. t^. Tel. Co. v. Round- Co., 9 111. App. 587; West. U. Tel. tree, 92 Ga. 611, 18 S. E. 979, 44 Am. Co. v. Lindley, 62 Ind. 371. St. Rep. 93; Shingleur v. West. U. Tel. "MYest. U. Tel. Co. v. Adams, 75 Co.. 72 Miss. 1030, 18 So. 425, 30 L. R. Tex. 531. 12 S. W. 857. 16 Am. St. Rep. A. 444. 48 Am. St. Rop. 604 : West. U. 020, 6 L. R. A. 844. Tel. Co. v. ]?oals, 56 Xeh. 415, 76 X. 272 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 2S2 siou f- since, a mere transmission from one station to another would avail nothing. It is part of the contract whereby the company has undertaken to transmit the messages and therefore just as essential as that of the transmission itself ;*'^ since, a failure of the company to comply with this part of the contract, would bring about the same results, as even a complete failure to transmit the message.^* To perform this part of their duty, they must keep a sufficient num- ber of messenger boys at their stations to make such deliveries, and, they cannot escape this duty by showing that the business of the office at the receiving station was not sufficient to justify the em- ployment of an additional agent to make delivery.*'^ § 283. Excuse for non-delivery. There are few instances where telegraph companies are excused for not making a prompt delivery, since it is presumed that, when they accept a message for transmission, it is within their power to carry out the obligations of their contracts to promptly deliver. There may, however, be some instances, where they are excusable for not making a prompt or even for making any delivery at all. For in- stance, where the address of the sendee is not sufficiently given in that his name is not correctly written or his street number is improperly given, or, where the charges for transmission are not given or ten- dered either by the sender or sendee, or, when the message is trans- mitted at a time, as at night, when the receiving office has no mes- senger boy — and it is not the usual custom to have one at that time, in this latter case, however, the message should be delivered early the next morning. AVhere the sendee is quarantined, on account of some contagious disease, or, where he cannot be found after diligent in- quiry for his whereabouts, or, where he lives unreasonably far be- yond the free delivery limits and the charges for such delivery have not been prepaid, the company would be excused for a non-delivery. "MVest. U. Tel. Co. v. ]\Ioore, 12 Tnd. "* Hendricks v. West. U. Tel. Co., 126 App. 136, ,54 Am. St. Rop. .575. X. Car. 304, 78 Am. St. Rep. 658, 35 •"West. U. Tel. Co. v. Gouger, 84 S. E. 543. Inrl. 176; West. U. Tel. Co. v. Adams, «= West. U. Tel. Co. v. Henderson, 89 75 Tex. 531, 12 S. W. 857, 16 Am. St. Ala. 510, 7 So. 419, 18 Am. St. Rep. Rop. 920. L. R. A. 844. 148. Compare Bobm v. W^est. U. Tel. Co.. S Bi-;s. (U. S.) 131. <^ 284] AS TO MESSAGES LIABILITY. 273 § 284. Same continued — not excused for. A telegraph company cannot be excused for liabilities caused by a delay in delivering a message by proof that it was not the custom of the physician, the sendee, to make professional calls at a distance without prepayment or guaranteed payment of his charges i"** or. that the message relates to a sale of ''futures," unless it is made a crime or tort to speculate in "'futures ;" or, would subject the company to indictment or civil action to receive and transmit a message in relation thereto f^ or, that the contract for its transmission and deliv- ery was entered into on Sunday, if the emergency to which the tele- gram related was the death and burial of the father of the person to whom it was addressed. °^ A stipulation on the company's blank, re- quiring messages to be repeated, is no defense to an action brought to recover damages for a delay; or, for failure in delivering a mes- sage, where the same has not been repeated f^ nor, does a regulation requiring the prepayment of special delivery charges before transmis- sion, for a telegram to be delivered beyond free delivery limits, ex- cuse delay in delivery or non-delivery of a telegram, unless the send- er knows, or is informed that the residence of the sendee is beyond the free delivery limits, and of the amount of the special delivery charges.'^'^ A telegraph company will not be excused for non-delivery on the gTound that the sender did not inform the operator of its im- portance, when they fail to show that, if the operator had received such infonnation, he would have changed the method of the trans- mission, or the time in which it would have been sent, the agency employed, the price demanded therefor, or the skill used in the transmission:"' nor. will it be excused on the o-vonnd, that the busi- ""West. U. Tel. Co. v. Henderson, 89 Ala. 32. 30 Am. St. Rep. 23, 9 So. Ala. 510, 7 So. 419, 18 Am. St. Rep. 414. 148. "•West. U. Tel. Co. v. Broische, 72 "Gray v. West. U. Tel. Co.. 87 Ga. Tox. 654, 13 Am. St. Rep. 843. 350, 13 S. E. 562, 14 L. R. A. 95, 27 '"West. U. Tel. Co. v. Moore, 12 Ind. Am. St. Rep. 259: Smith v. West. U. App. 136, 54 Am. St. Rep. 515. Tel. Co., 84 Ky. 664, 2 S. \\'. 883. •' Hendricks v. West. U. Tel. Co.. 126 *West. U. Tel. Co. V. Wilson, 93 X. Car. 304, 35 S. E. 543, 78 Am. St. T. & T.— 18 274: TELEGRAPH AND TELEPHONE COMPANIES. [<§ 284 iiess of the office M^here it was received was not sufficient to justify the employment of a messenger."- They cannot be excused for a delay by contending that the sender should have sent the message sooner, instead of waiting until the last moment ;'^^ nor by setting up the fact that the message as offered was not in writing.'^'* § 285. Duty to inform sender of non-delivery. As a general rule, it is not the duty of the telegTaph company to inform the sender that the telegram cannot be delivered, or the sendee cannot be found,' ^ but when it is convenient or practical for the company t© impart such information, especially where the mes- sage shows on its face its importance, it should do so; otherwise, the company will be liable for all damages directly arising therefrom. Thus, where a mother telegraphs to a friend to meet the remains of her child at a certain place, and she has been assured of the fact that the same was delivered, but in fact it had not been, and the company could have easily informed her of the non-delivery, it will be liable for all damages caused by her accompanying the remains to this place by railroad without giving her an opportunity of making other ar- rangements.'^° It is not negligence yer se to fail to disclose such in- formation to the sender, but it is an evidence of negligence.'^'^ § 286. To whom made — delivery. After a telegraph company has accei3ted and transmitted a mes- sage, it is under prima facie obligations to deliver the message to the sendee*^^ in person, unless other arrangements have been made, and,- it Eep. 658; West. U. Tel. Co. v. Hyde ^"Hendricks v. West. U. Tel. Co., 126 Bros., 16 Am. & Eng. Corp. Cas. 232. N. C. 304, 35 S. E. 543, 78 Am. St. '2 West. U. Tel. Co. v. Henderson, 89 Eep. 658; Landie v. West. U. Tel. Co.. Ala. 510, 18 Am. St. Rep. 148, 9 So. 126 N. C. 431, 78 Am. St. Rep. 658, 414. 35 S. E. 810. ■^Pope V. West. U. Tel. Co., 14 111. "Id. App. 531; West. U. Tel. Co. v. Bruner, "West. U. Tel. Co. v. Mitchell, 91 19 S. W. 149. Tex. 454, 44 S. W. 274, 40 L. R. A. ■*West. U. Tel. Co. v. Wilson, 93 209, 06 Am. St. Rep. 906; West. U. Ala. 32, & So. 414, 30 Am. St. Rep. Tel. Co. v. Moseley, 28 Tex. Civ. App. 23. 562, 67 &. W. 1059; West. U. Tel. Co. "West. U. Tel. Co. v. Davis, 51 S. v. DeJarles, 8 Tex. Civ. App. 109, 27 W. 258. S. W. 792. 1^ 287] AS TO MESSAGES LIABILITY, 275 will be liable for any injury caused by such breach of duty. Arrange- ments may be made between the company and the party to whom the messages are sent by which a delivery to some third party would re- lieve the former of further duty."^" The sender could not object to such arrangements ; for a delivery of a message which would be good in law as between the addressee and the company, is good as between the sender and the company.^'' A party may instruct the company to leave all messages at his place of business, and a delivery to such place would be a sufficient delivery f^ or, the addressee may make the company's messenger his agent, so that he could not hold the com- pany for the messenger's mistakes.^- But in order to relieve the company of any responsibility, the arrangements to leave the mes- sage with some third party, must be made by special agreements be- tween the company and the party to whom the messages are ad- dressed ; and, generally the same must be in writing, as a mere ver- bal instruction to the company's messenger at some place other than at its office would not be sufficients^ § 287. Delivery to wife. Is a delivery of a message to a wife sufficient ? In answering this question, it is necessary to consider the circumstances in each parti- cular case. Generally speaking, a delivery to a wife is not per se sufficient as matter of law.^"^ The wife, as such, is not in law the general agent of her husband. ^^ If the husband should be absent from home, the wife may be the proper party to whom the message should be delivered, for, she is the most likely of all persons in the world to know of her husband's whereabouts, and thus be enabled to ••Thompson v. West. U. Tel. Co., 10 <« Norman v. West. U. Tel. Co.. 31 Tex. Civ. App. 120, 30 S. W. 250; Wash. 577. West. U. Tel. Co. v. Pearce, 95 Tex. «^ Given v. ^^■est. U. Tel. Co.. 24 Fed. 578, 68 S. W. 771, reversing 67 S. W. 119. 920, and distinguishing West. U. Tel. "West. U. Tel. Co. v. :\Iitcliell, 91 Co. v. Young, 77 Tex. 245, 13 S. W. Tex. 454, 66 Am. St. Rep. 906. 40 L. 985, 19 Am. St. Rep. 751. R. A. 209; West. U. Tel. Co. v. «• Norman v. West. U. Tel. Co., 31 Moseley, 28 Tex. Civ. App. 562. Wash. 577. "West. U. Tel. Co. v. Mitchell, 91 »^West. U. Tel. Co. v. Woods, 56 Tex. 454, 44 S. W. 274, 66 Am. St. Kan. 731, 44 Pac. 1093. Rep. 90G, 40 L. R. A. 209. 276 TELEGRAPH AXD TELEPHONE COMPA>:iES. [<^ 287 send the message to him immediately/**^' And the husband, in case of his absence from home, may be estopped from denying the rights of his wife in accepting a message for him. Thus, if she has been at the head of his business, about which the message concerns, or, if it has been the custom for the messages to be delivered to her in his ab- sence, the company, under such circumstances, would be justified in delivering the message to her : but even then, if the message has im- portance on its face, the company would not be relieved from its duty to deliver to the addressee until after having made diligent search and inquiry for him. The reason of this, is, that the business about which the message pertains, may be different from that over which the wife may have control, and about which she may have any knowledge. While it may be likely that the wife would know of her husband's whereabouts, in a general way, when absent from his home town, yet it is not possible that she has been informed of all of his business affairs. So the contents of a message may be concerning business of great importance to him and on which he would act im- mediately, but if delivered to his wife, she might not, for the above reason, notify him immediately of the contents, whereby he would be injured by her negligence. ^'^ It is, therefore, better to impose the duty upon the telegraph company to deliver messages to the addressee in person, especially where it shows importance on its face ; or. when it is about business of which the wife has no knowledge; and this duty does not cease until the company has made diligent inquiries for the addressee. § 288. Delivery to hotel clerk — not sufficient. It has been held that when a telegraph company has delivered, to a clerk of a hotel, a message addressed to one of the guests or board- ers in his absence from his place of business, and the same is receipt- ed by the clerk, that the company has fulfilled its duties. The ground on which this reason was based, was, that it was one of the implied 'luties of a hotel clerk to receive and accept all messages addressed to their guests or boarders in their absence.^^ But there is a later opin- ^ Given v. West. U. Tel. Co., 24 Fed. ^ West. U. Tel. Co. v. Trissal, 98 119. Irid. 560. ''Id. § 289j AS TO MESSAGKS LIAIULITY. -11 ion — and u bctUr uiu- we think — uliicli hokls to the fontrarv. In this case the court, said: "The (iue>ribb, 05 Tox. !>3 Am. St. Rop. SC.-i. .38 L. R. A. 333, C7 S. W. 87. O'-'S. 278 TELEGRAPH AND TELEPHONE COMPANIES. [^ 289 after reading it that he is not the real addressee and informs the mes- senger or operator of this fact ; or, if there is any other means by which the company may be enlightened as to who the real addressee is, it will not bo relieved from liability until the message shall have been delivered to him, or good reasons shown for not doing so.^*^ If, on the other hand, the company has no means of ascertaining which of the two parties is the real addressee, a delivery to one is suffic- ient. § 290. In care o£ another. When a message is addressed to one party in care of another, the company has performed its duty when it delivers the message to the party in whose care it is directed. The telegraph company contracts to deliver the message to the party in whose care it is directed and not to the addressee ; and when it has performed this duty, its liability ceases.^ ^ Such delivery is sufficient although no effort has been made to find the addressee.^^ And when the address is in care of a railroad company at a certain place, a delivery to its agent there is sufficient.^"^ It has further been held that a delivery to the party, in whose care it is sent, is sufficient although he refuses to accept the message;^'* but we think a better holding is, that when this party refuses to ac- cept the, message and the company knows of the real addressee's whereabouts, it should make reasonable efforts to deliver the message to him, especially when the message shows importance on its face.^^ If the person, in whose care the message is sent, cannot be found, it is the duty of the company to make diligent search for the party addres- sed ; ^® in order to entirely relieve the company it would be a good ••Shenill v. West. U. Tel. Co., 1T6 "^'West. U. Tel. Co. v. Terrell, 10 N. C. 656, 21 S. E. 400. Tex. Civ. App. 60, 30 S. W. 70. «Lefler v. West. U. Tel. Co., 131 X. ^^ Leflgj. y v^^gst. U. Tel. Co., 131 N. C. 355, 42 S. E. 819, 59 L. R. A. Car. 355, 42 S. E. 819, 59 L. R. A. 477; West. U. Tel. Co. v. Young. 77 477. Tex. 245, 13 S. W. 985. 19 Am. St. »* West. U. Tel. Co. v. Thompson, 31 Rep. 751; West. U. Tel. Co. v. Thomp- S. W. 318. son, 31 S. W. 318; West. U. Tel. Co. »^ Hudson v. Postal Tel. Cable Co., V. Houghton, 82 Tex. 561,17 S. W. 846, 132 N. C. 460, 43 S. E. 943. 27 Am. St. Rep. 918, 15 L. R. A. 129n; ««West. U. Tel. Co. v. Houghton, 82 West. U. Tel. Co. v. Elliott, 7 Tex. Civ. Tex. 561, 17 S. W. 846, 15 L. R. A. App. 482, 27 S. W. 219. 129n, 27 Am. St. Rep. 918; West. U. Tel. Co. V. Jackson, 19 Tex. Civ. App. 273, 46 S. W. 279. § 291] AS TO MESSAGES LIABILITY. 279 plaii for the sciider to be notified of this fact; and yet, it is not ;i necessary duty to do this, unless the same is practicable. An agree- ment may be made between either the sender or addressee and the company's operator, to deliver the message to a certain person in a certain manner, and, when the company has complied with this agreement, it will be relieved from further responsibility.^'^ But whatever arrangements this third party may have made with the company with respect to the message addressed to him, will not be binding \vith respect to the messages addressed in his care.®* Thus, if there is an arrangement made between the company and the third ])arty whereby all messages may be delivered to him by telephone, this does not mean that messages sent in his care may be delivered in the same manner, but, in such cases, it is the duty of the company to deliver to him in person a written copy of the telegram.^^ The rea- son of this rule is very clear. When a message is addressed to this party and is delivered to him over a telephone or by other similar means, by an agreement to that effect, it has reached its destination and he is in a position to undertand its contents and may act on it as he may see fit ; but, in the other instance, where he is the party in whose care it is addressed, he is not a principal and may not be in a position to comprehend its meaning nor understand it sufliciently to enable him to redeliver it to the addressee correctly and promptly. He should have a written copy delivered to him by the company in order that he may deliver to the real addressee the same identical message received by him. § 291. To authorized agent. A delivery will be sufficient, if it is made to a clerk of a hotel of which the addressee is a guest or boarder ; or, to the wife of the addressee ; or, a member of a firm or" corporation ; or, to any other party, who is authorized to act as agent in receiving messages. But, in order for the company to be relieved from any liability, the mes- sage must be delivered to that party. Thus, where a mes- »■ I'liompsou V. West. U. Tel. Co.. 10 «' West. U. Tel. Co. v. Pearce, 05 Trx. Tex. Civ. App. 120, 30 S. W. 250. •)78. fiS S. ^Y. 771. »»Xorman v. West. U. Tel. Co., 31 ^\•asll. 577. 2S0 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 291 sage was addressed to -T. W. Pearsall & Co.," but the com- pany delivered it in an envelope addressed ''T. W. Pearsall," a member of the finn of T. W. Pearsall & Co., it was considered at the office of T. W. Pearsall & Co., as Mr. Pearsall's private mail and was not opened until his arrival. It was an important mes- sage requiring immediate attention, and would have been attended to promptly had it been addressed to the firm instead of to Mr. Pear- sall personally. In consequence of the delay thus occasioned, the plaintiff suffered damage for which it was held that he could re- cover of the company. ^^° It is not necessary, in every instance, to au- thorize anyone to act as agent for the party addressed, but if ther'! is shown sufficient proof that the addressee cannot be found after diligent search,there is an implied agency existing between the sender and some one closely allied in the sendee's business or social affairs after the former has been notified of this fact ; as wliere the telegraph company telephoned to the addressee's place of business and learning that he was out of town for several days, caused the message to be delivered to his wife at his residence, and then informed the sender of what had been done, it was held that this was a sufficient deliv- ery.'"' § 292. Manner of delivery — written copy. It is incumbent wpon a telegraph company, as one of its essen- tial duties, to deliver to the addressee a written copy of the tclegi-am. This is always the best means by which the exact words of the mes- sage may be delivered, in order that the addressee may act thereon. It would be very difficult for operators or messengers to understand and remember the contents of all messages received by them during their daily course of business. Their minds being taxed with other business, it would be impossible for them to remember exactly the wording of any particular message, especially where they are not fur- ther interested in it than that of receiving it as all other ; and when they have no knowledge — and it is presumed that they have none — of the business about which the message is sent, they surely could '""Persall v. West. U. Tel. Co., 44 '"' Civon v. West. V. Tol. Co.. 24 Fed. Hun (N. Y.) .532; affirmed 124 N. Y. US. 2.56, 21 Am. St. Rep. 002. <^ 293] Aa TU MESSAGES ElAlilElTY. 281 not understand it us well as the party to wlium it was addressed. For these reasons, the best means of delivering the exact words of a mes- sage is by delivering a written copy of the message. Furthermore, the sendee having this written copy before him is much more capable of advising himself liow to act upon same. By having a writ- ten copy of the telegram, the errors or the inaccuracies, which may be made in the transmission, could be shown more easily by com- paring this copy with the one delivered to the company for trans- mission.^'^- It it true that the sendee may waive this duty of the company, as by granting it the right to deliver the message over a telephone line;^"^ but none save messages addressed to the sendee could be waived. If it were only delivered to him in care of another he 6ould not waive this duty, but the same would have to be delivered in writing. ^"^^ When telegi-ams are addressed to him and delivered by telephone, the messenger acts as his and not the company's agent in that particular business. § 293. No duty to forward messages. A telegraph company is under no obligation to forward a tele- gram to a party who has moved into another locality, but this duty may be assumed by an agreement, to that affect, entered into be- tween the company at its office and the sender. ^"^ Thus, it has been held, that when the company has been paid the extra charges for de- livering beyond the free delivery limit, and payment for any addi- tional charges has been guaranteed, ^'^*^ the operator at the receiving station, knowing that the message is important, and that the addres- see is temporarily in another city — where the company had an office — is under a duty to send it to him there, and for his failure, in this respect, will lay the coni]>any liable.^'^' But the company is not liable for failing to forward a message to an absent addressee, where it exercises due diligence to make personal deliveiy, and the "= Brosiicrs v. West. U. Tel. Co., 45 ""Thorp v. West. V. Tel. Co.. 84 .Mo. App. 433; West. U. Tel. Co. v. Iowa 100. 50 X. W. (17.-): West. U. Tel. Pearce. 95 Tex. 578, C8 S. W. 771. Co. v. Bierhaiis, 8 Ind. App. 563. '""Nonuan v. West. U. Tel. Co.. 31 >°" Abbott v. West. U. Tel. Co.. 80 Wash. .■J77. ^tiiiii. 44, 90 N. W. 1. '»*Wcst. f. Tel. Co. V. Pearce. O-i '"■ West. U. Tel. Co. v. llon.lrieks. 2t» Tex. 578. OS S. W. 771. IVx. Civ. App. 300, 03 S. W. 341. 282 TELEGEAPII AND TELEPHONE COMPANIES. [§ 293 operator is not aware of his temporary address, altliougii, the messen- ger boy in charge of the message might easily have learned where the addressee was, if he had inquired at any of the places where he at- tempted to make delivery. ^'^'^ Where an agreement is made of this kind to forward a message, it is binding on the company only for ;i reasonable time, which is a question of fact.^^^ § 294. Time to deliver. It is the duty of all telegraph companies, after assuming the re- sponsibilities attached to the nature of a business which they follow, to deliver messages to the proper party as soon after their transmis- sion as is reasonably practicable ;^^'^ and on a failure so to do, they will be liable for all the damages arising directly therefrom.^^^ It is as great if not a greater duty to make a prompt delivery as to ex- ercise same in its transmission. ^^^ It is not an easy matter to lay down a fixed rule, prescribing the degree of promptness necessary in the delivery of every particular message. They must deliver the message as soon as reasonably practicable after its transmission, and, in determining this question it is necessary to take into consideration the surrounding circumstances. Thus, if the company's office to which the message is sent, is a small business office, on account of which there are only a few messengers required in the general course of business, and there is an extra amount of telegraphic work going on at the time the message is sent, a delay, caused by such rush of business, must be considered in determining the question of negli- gent delay in del i very. ^^^ The time required for copying and ad- ^"«West. U. Tel. Co. v. Redinger, 63 Adams, 75 Tex. 531, 12 S. W. 857, S. VY. 15(5. 16 Am. St. Rep. 920, 6 L. R. A. 844. "^Harper v. West. U. Tel. Co., 92 Tlie operatoi- has no right to speculate Mo. App. 304. as to the probable effect of promptness ^'"Harkness v. West. U. Tel. Co., 73 or delay in delivering. Telephone com- lowa 190, 34 N. W. 811, 5 Am. St. Rep. pany v. Brown, 104 Tenn. 56, 78 Am. 672 ; Bliss v. Baltimore, etc., Tel. Co., St. Rep. 906. 50 L. R. A. 277, 55 S. W. 30 Mo. App. 103; Cannon v. West. U. 155. Tel. Co., 100 N. C. 300, 6 Am. St. "^ West. U. Tel. Co. v. Moore, 12 Rep. 500, 6 S. E. 731. Ind. App. 136, 54 Am. St. Rep. 515. '"Hendricks v. West. U. Tel. Co., "nVest. U. Tel. Co. v. Neel, 86 Tex. 126 K 0. 304, 35 S. E. 543, 78 Am. 368, 40 Am. St. Rep. 847. St. Rep. 658: West. U. Tel. Co. v. § 295] AS TO MESSAGES LIABILITY. 283 dressing the iiiessagL' and for numbering it/*"* the distance the sendee lives from the office, and the difficulty in reaching him, must be con- sidered in determining the degree of diligence exercised. A telegram delivered in its regular order, within half an hour of the time it was received at its destination, is delivered within a reasonable time;^^'^ and where the operator promised the addressee to deliver his message ''at once," the company is still bound to ordinaiy dili- gence. ^^^ A delay of five hours in delivering a message, the urgency of which is known to the company, is negligence, when it attempts to find the addressee down town and at his office, but fails to leave notice there or to visit his residence within the free delivery limits, where he might have been found. ^^" What is due diligence in this respect is a question of fact, and not one to be left to the judgment of the company. ^^* § 295. Same continued — two messages of same nature received within office hours. There is a peculiar duty with respect to tlie time of delivery where there are two messages having relation to the same matter, and transmitted to the same party within a short period of each other, but the first delivered is not transmitted until after the other. If the com- pany is not guilty of negligence in delivering one before the other, it will not be liable. It may have good reasons to give why this ac- cident was caused, as that the telegrams were sent out by the two different messengers, but the one carrying the second message hap- pens to find the sendee before the first. ^^^ But if the messages show on their faces — which they ought to show — the time when each was delivered to the company, the sendee could hardly be heard to com- '"West. U. Tel. Co. v. McConnico, "' Hendershot v. West. U. Tel. Co.. 27 Te.x. Civ. App. 610, 66 S. W. 592; 106 Iowa 529, 76 X. W. 828, 68 Am. Davis V. West. U. Tel. Co., 66 S. W. St. Rep. 313. 17, 23 Ky. L. Rep. 1758; West. U. '"Telephone Co. v. Brown, 104 Tenn. Tel. Co. V. Virginia Paper Co., 87 Va. 56, 78 Am. St. Rep. 906, 50 L. K. A. 418, 12 S. E. 75.5. 277, 55 S. W. 155. '"Julian V. West. U. Tel. Co., 98 ""Cannon v. West. U. Tel. Co., 100 Ind. 327. N. C. 300, 6 Am. St. Rep. 590, 6 "•West. U. Tel. Co. v. De Jarles, 8 S E. 731. T.X-. Civ. .\pp. 109, 27 S. W. 792. -S^ TELEGKAPli AND TELKL'llOAE COMi'AXlKS. [§ 295 plain, for hv avuuUI have notice of the time \vheii thev were transmit- ted and eonld act accordingly. The company may make reasonable office hours, within M-hich all messages shonld be received for innned- iate delivery, and should they not be received within that time, the company would not be duty bound to deliver the message until the office was opened, and as soon thereafter as practicable. A person, desiring a message delivered at an usual hour, should inquire whether it will be delivered at that time, and, in the absence of such inquiry, the telegraj^h company does not become answerable for the delay by its failure to volunteer the information that the office to which the message is addressed, is not open for business until later. ^^° And if two messages are delivered to the company for transmission at dif- ferent times, but the office, to which they were to be sent, is closed when both are delivered, the company would not be liable in the absence of negligende, if the second message should be delivered be- fore the one first tendered for transmission.-^^^ § 296. Free delivery limit. In many instances, the addressee of a message lives some distance from the company's office, and, to require the latter to deliver the message to sUch party, wdthout extra compensation, might impose on it an unreasonable burden, so these companies may prescribe rules by which they may agree to deliver all messages within a certain radius of their offices, free of charge and require extra compensation for all delivery beyond this radius. ■""- These regulations are generally '-" ^^"est. U. Tel. Co. V. Xeel, 86 Tex. suppose the contract to transmit a 3GS, 40 Am. St. Rep. 847, 25 S. W. message is silent about free delivery. 15. Tf we hold the clause in controversy '-' Cannon v. West. U. Tel. Co., 100 to be restricted of a right, then, in N. C. 300, 6 S. E. 731, 6 Am. St. the case supposed, the telegraph com- Rep. 590; Hooker v. West. U. Tel. Co.. pany would be bound to deliver to 34 So. (Fla.) 901. the sendee, no matter how great the '^ "Free delivery within a half-mile distance to his residence. Free deliv- is not a restriction of a right, but a ery is a conditional obligation, eontin- qualified privilege granted. It is not gent on the sendee's residence being an inherent right; for if it were, in within the area of free delivery; and the absence of restriction, it would until the condition is shown, the tele- have no limits. To show to what ab- graph company is not put in default.'" surd results this would lead, let us \^'est. U. Tel. Co. v. Henderson, 89 Ala. N, 296] AS TO MESSAGES LIABIEITY. 285 to be found on llic k-k-^rapii blanks, and arc presumed to have been accepted at the time of signing and delivery of the telegram to the company. While this is the general way these regulations are mad:- and entered into, yet there are statutes in some states containing the same stipulations, and they bind all who contract business with these companies within their jurisdiction. Of course, this free de- livery limit must be reasonable, and in determining this qnestion the snrrounding circumstances must be considered. The size of the town or city and location of the surrounding country are the princi- ple questions to be considered' in arriving at this fact. It has been held that a radius of one half mile in a city of five thousand inhab- itants, and a radius of one mile in cities having more than this num- ber, was a reasonable distance within which to give free delivery.^-'' When the addressee lives beyond the free delivery limit, and this fact is known by either the company's operator or the sender, it is t\vi duty of the latter to pay an extra compensation for such delivery; and, the company is under no obligation to accept the message for transmission until this is paid. It is held in some courts that if the fact is not known by either the sender or the operator that the sendee lives beyond the free delivery limit, the company is under no obli- gation to deliver the message, if the extra charges are not paid, waiv- ed or guaranteed to be paid ;^-^ but the better holding, however, is that the company is under obligations to deliver the message if the sendee lives within a reasonable distance beyond the delivery lim^it, provided he will pay for such extra charges. ^-^ It will hardly be nec- 510, 7 So. 419, 18 Am. St. Rep. 153; v. West. U. Tel. Co.. 84 Tex. 17. 10 West. U. Tel. Co. v. Ward, 23 Ind. S^. W. 285; West. U. Tel. Co. v. War- 377, 85 Am. Dec. 462; West. U. Tel. ren, 36 S. W. 314; West. U. Tel. Co. Co. V. Redingor, 22 Tex. Civ. App. 362, v. Drake, 13 Tex. Civ. App. 572. .36 .54 S. W. 417. S. W. 786. •^West. U. Tel. Co. v. Trotter, 55 ^^^ West. U. Tel. Co. v. Moore, 12 111. App. 659. Ind. App. 136, 54 Am. St. Rep. 515. 12^ West. U. Tel. Co. v. Henderson. The court in this case disagreed with 89 Ala. 510, 7 So. 419, 18 Am. St. Rep. the holding in the case of West. V. Tel. 148; Whittemore v. West. U. Tel. Co.. Co. v. Henderson, above cited, and 71 Fed. 651; West. U. Tel. Co. v. said: "'We are aware that in West. Matthews. 107 Ky. 663, 55 S. W. 427: U. Tel. Co. v. Henderson. 89 Ala. 510, Rohe V. West. U. Tel. Co., 70 S. W. 7 So. 419, 18 Am. St. Rep. 148, it is W, 24 Ky. L. Rep. 845; West. U. Tel. declared that the sender is bound to Co. V. Cross, 74 S. W. 1098; Anderson know whether the sendee lives within 2S6 TELEGKAPH AND TELEPHONE COMPANIES. [§ 296 essary, at this place, to enter into the reasons given to sustain each of the above holdings; but suffice it to say that these companies niuN- prescribe regulations whereby they may exact of all their patrons, an extra compensation for all deliveries made beyond the free delivery limit, when the fact is known at the time the message is tendered for acceptance. And on failure so to do, the company, is under no obligation to accept the message ; but if the fact is not known, it is the duty of the company to deliver the message on the sendee's pay- ing for the extra charges. In those jurisdictions holding the first rule, it is held that the company may waive the right to exact of the sender the extra compensation ;^^^ or he may give a written guaranty to pay all additional charges incurred in delivering the message be- the free delivery limits and must him- self provide, beforehand, for delivery if he does not. We do not, however, concur in the reasoning or conclusion of this case upon this proposition. Many men have occasion to communi- cate with others in cities and towns where they are totally ignorant of the distances between the company's re- ceiving station and the addressee's residence. Even if they know the street and number, they may still be wanting in a knowledge of the location with reference to the station. Such a regulation as we are now considering would, as it seems to us, be harsh, inequitable and uimecessary. When the patron pays to the company the amount which he believes, in good faith, covers its entire charge for the service, and the company receives it and the message, he has a right to ex- pect that the company will carry the message to the person addressed, if within the statutory delivery limits, and present it to him for delivery. If there be then any additional sum due, the company may require its payment before it surrenders the mes- sage to the sendee, if it prefers to do sc rather than rely solely upon the sender for its payment. The company will thus be furnished ample protec- tion, and the expectations and pur- poses of the sender of the message will not be disappointed. This course seems to us to afford a much fairer and more equitable so- lution of the problem as to what is the duty of the company than to hold that it may stop the message half way upon its course, and thus really render to the sender no service, after receiv- ing from him what both thought to be the full price therefor. We appre- hend that, if such a course were fol- lowed, there would be few instances where the sendee would refuse to re- ceive the message, and pay the delivery charge if proper. If he did a notification to the sender, in most of those few instances would bring the money from him. If, how- ever, the company might occasionally lose a delivery charge, the loss to it would be trifling and inconsiderable when compared with the possible loss and inconvenience to the public and patrons who have relied in good faith upon their delivery of the message." '2« Roche V. West. U. Tel. Co., 70 S. W. 39, 24 Ky. L. Rep. 845; West. U. Tel. Co. V. O'Keefe, 29 S. W. 1137. ^ 298] AS TO MESSAGES LIAIilLITY. 287 yond the free delivery limit/-' and iheirtbe company is under obli- gation to deliver. § 297. When sendee lives several miles from office. Very often messages are sent to persons who live in the country or several miles from the receiving oflSce of the company; and then, surely, the latter would be under no obligation whatever to make such delivery, ^-^ unless there is a special agTeement to that effect.^-® It has been held without much plausible reason that when this extra charge is refused to be paid by either sender or the addressee, the company would not be under any obligations to deliver the message, even when it would not necessarily be put to any additional expense. Thus, where the agent at the receiving office notifies the addressee by mail, and also asks that the extra charges be guaranteed by him, the agent is not liable for refusing to give the message to a neighbor who offers to deliver it without charge. ^^'^ If the charges for trans- mission have not been paid, the agent would clearly have the right to refuse to deliver the message to this party ; but if there is nothing except the extra charge for delivery left unpaid, and the company is put to no extra expense in making such delivery, as in the cited case, and the manner of delivery is acceptable to the addressee, we see no reason why the agent should not make such delivery. While the com- pany will be under no obligations to deliver a message to a party who lives several miles from the receiving office without first being compensated, yet this is no reason why it may not use diligence in attempting to deliver the message to him while temporarily within the free delivery limits. ^^^ § 298. Same continued — may waive right. If the addressee lives beyond the free delivery limits, and this fact is known by the company's operator at the time the message is '"RejTiolds V. \\e>t. U. Tel. Co., 81 '^West. U. Tel. Co. v. Matthews. G7 Mo. App. 223. S W. 849, 24 Ky. L. Rep. 3. '=« West. U. Tel. Co. v. ]\Iatthews, 107 "" West. U. Tel. Co. v. Swearinger. Ky. 663, 55 S. W. 427; West. U. Tel. 05 Tex. 420, 67 S. W. 767. Co. V. Swearinger, 95 Tex. 420, 67 S. ''^ Rasser v. West. U. Tel. Co.. 130 W. 767, reversing 65 S. W. 1080; N. C. 251, 41 S. E. 378; West. U. West. U. Tel. Co. v. Taylor, 3 Tex. Tel. Co. v. Davis, 30 Tex. Civ. App. Civ. App. 310, 22 S. W. 532. 500, 71 S. W. 313. 288 TELEGRAPH AND TELEPHONE COMPANIES. [^ 298 received it may, nevertheless, become liable for a failure to deliver, when it has waived its right to collect for the extra charge. ^^^ What is necessary to constitute a waiver is a question of fact, and where the company has been accustomed to accept messages addressed to certain parties living beyond this free delivery limit for a long time, it will be presumed that it has waived its rights. ^^^ In those juris- dictions which hold that a company is under no obligation to deliver a message to an addressee living beyond the free delivery limit, with- out the prepayment of the extra charge, it is generally the custom for the operator at the receiving office to notify the sender of the fact that the sendee lives beyond these limits, and the amount of the ex- tra charge necessary to be paid; and, on a failure to do this, the company will be liable for non-delivery. ^^^ But if the sender can- not be found, after reasonable search, in order that he may be in- formed of this fact, the company will then have discharged its duty and will not be liable for the non-delivery. Whatever the custom may be with respect to the delivery of messages beyond the free de- livery limit, and the manner of collecting the extra compensation, the regulations requiring prepayment of special charges will be strictly construed against the company. ^^^ § 299. No delivery limit fixed. If there is no free delivery limit fixed, either by the company or by statute, it is presumed that the company will deliver all messages "*Whittemore v. West. U. Tel. Co., Tenn. 6.38, 37 S. W. 545, 34 L. R. A. 7] Fed. 651; West. U. Tel. Co. v. 431n; West. U. Tel. Co. v. Cain, 40 Matthews, 67 S. W. 849, 24 Ky. L. S. W. 624; West. U. Tel. Co, v. Davis, Pvep. 3; West. U. Tel. Co. v. Robinson, 24 Tex. Civ. App. 427, 59 S. W. 46. 97 Tenn. 038, 37 S. W. 545, 34 L. R. A. »* Evans v. West. U. Tel. Co., 56 S. 431n; West. U. Tel. Co. v. Teague, 8 \\ . 609; West. U. Tel. Co. v. Pearce, Tex. Civ. App. 444, 27 S. W. 958; 70 S. W. 360. Where such notice is West. U. Tel. Co. v. Hargrove, 14 Tex. not given, it would be evidence of neg- Civ. App. 79, 36 S. W. 1077; West. U. ligence. Hendricks v. West. U. Tel. Tel. V. Sweetman, 19 Tex. Civ. App. Co., 126 N. C. 304, 35 S. E. 543, 78 435, 47 S. W. 676; West. U. Tel. v. Am. St. Rep. 658; Bright v. West. U. Davis, 30 Tex. Civ. App. 590, 71 S. Tel. Co., 132 N. Car. 317, 43 S. E. W. 313. 841; Bryan v. W^est. U. Tel. Co., 133 '=^ West. U. Tel. Co. v. Womack, 9 N. C. 603, 43 S. E. 841. Tex. Civ. App. 607, 29 S. W. 932: '=^ West. U. Tel. Co. v. Moore, 12 West. U. Tel. Co. v. Robinson, 97 Ind. 136, 54 Am. St. Rep. 515. § 300] AS TO MESSAGES LIAIilLITY, 289 to parties who live within a reasonable distance of the company's of- fice. It is not to be understood, wlit-n these message blanks contaiti a stipulation that messages will be delivered free within the estalj- lished free delivery limits of the terminal office and that for a greater distance a special charge will be made to cover the cost of such de- livery, that this prescribes or fixes a free delivery limit, but that it gives the conipaiiy the right to make a limit; and until such is madi- it is presumed that the company will deliver to all who live within a reasonable distance from the terminal office, ^^'^lat is a reasonable distance is a question for the jury, and must be determined by a con- sideration of the surrounding- circumstances.-''^*^ § 300. Must use due diligence to deliver. The company must exercise due diligence and effort to find the ad- dressee of a message and deliver same to him.^^' We may say that there is even a greater amount of diligence required on the part of a telegraph company in making an effort to find the addressee and de- liver the message to him than to be exercised in its transmission. For, if there is an immediate effort to transmit, and the company is unable on account of some unavoidable hindrance to do so, the sender may be notified in time to pursue another course if possible. But when the message has been transmitted to the operator at the terminal of- fice, it will be so far beyond his reach as to prevent him from ascer- taining: the condition of affairs. It is then not incumbent on him to find out whether or not the company is exercising diligence in de- livering the message; ^^^ or even whether it has delivered it at all. It is always presumed that the company is exercising diligence in the transmission and delivery of its messages, and the sender, for this reason, would likely be laboring under the heliei that the message ""West. r. Tol. Co. V. Russol. 31 S. 12 Ind App. 13G. 54 Am. St. Rep. 515; \y. G98. Maiivillo v. West. U. Tel. Co., 37 Iowa '"Pope V. West. U. Tel. Co., 214. 18 Am. Rep. 8; Mackay v. West. Brdw. (111.) 283; Bliss v. Baltimore, I'. Tel. Co.. 16 Nev. 222; West. U. etc., Tel. Co., 30 Mo. App. 103; Julian Tel. Co. v. Fatman. 73 Ga. 285, .14 Am. V West. U. Tel. Co., 98 Ind. 327; Rep. 877. Harkness v. West. U. Tel. Co., 73 Iowa >»West. U. Tel. Co. v. Chamblee, 122 190, 34 N. W. 811, 5 Am. St. Rep. Ala. 42S. 2.") So. 232. 82 Am. St. Rep. G72; West. U. Tel. Co. v. Gougar, 84 89. Ind. 176: West. U. Tel. Co. v. :Mooie, T. & T.— 19 290 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 300 had been delivered promptly and accomplished the desired results. Keasonable diligence exercised in the finding of the sendee and a promptness to deliver same to him, is a part of the contract of trans- mission, and a failure to do either is no transmission. 139 § 301. Same continued — illustrations. It is not enough to attempt a delivery at the office or place of busi- ness of the person addressed ; ^^^ especially when he, as well as his place of residence, is well known in the town where the message is received. ^^^ Failing in the attempt to deliver a message after busi- ness hours or on Sunday, will not excuse a failure to deliver ;^*^ and where it was said that "the unsuccessful attempts of the com- pany's agent to deliver said message at the business house of Arthur Peter & Company, the addressee, either on Saturday night after the close of business hours, or on Sunday where there are not or should not be any business hours, certainly affords no reasonable excuse for the non-delivery of, or for want of an effort to deliver, the said mes- sage during business hours of the succeeding Monday." A company failed to exercise due diligence in delivering a message, where it was given to a messenger, who took it to the addressee's place of busi- ness and was there told that the latter was five miles in the country, but that a person was going out there and would carry it; and the message was taken back to the office and no further attempt made to deliver it, though the house of the addressee was about one-half mile from the terminal station in a town where there were no pre- scribed free delivery limits. ^^^ § 302. Diligence exercised — evidence — burden of proof. When a telegraph company fails to deliver a message to the party addressed, or when it is delivered but not immediately, the question which necessarily presents itself is. Whether or not it is a question of '=»West. U. Tel. Co. v. Gougar, 84 '"West. U. Tel. Co. v. Lindley, 62 Ind. 176. Ind. 371. "*Pope V. West. U. Tel. Co., 9 111. "=West. U. Tel. Co. v. Russel, 31 S. App. 587. W. 698. See, also, Sherrill v. West. ^"West. U. Tel. Co. v. Cooper, 71 U. Tel. Co., 116 N. C. 655, 21 S. E. Tex. 507, 9 S. W. 598, 10 Am. St. 429. Rep. 772, 1 L. R. A. 728n. <^ 303] AS TO MESSAGES LIABILITY. 291 fact to be decided by a jury, or a question of law for the court ? If the evidence in the case is so very clear as to show to any reasonable and fair-minded man that the company was not negligent in making a reasonable effort to deliver the message sent, or if it is an undis- puted fact, it is a question for the court. ^'*'* But if the evidence on this point is conflicting, it is a question of fact.^"*^ In order to as- certain the fact as to whether a telegraph company ha? been negli- gent in delivering a message promptly, for which it would be liable for all damages arising therefrom, all the facts pertaining to the case must be considered. jSTo two cases arise with the same state of facts and the facts, necessary to be considered, are not always the same. The burden of proof to show that the company exercised due diligence in the delivery of the message, is on the company. Thus, the fact that the person addressed was not at the oflBce and could not be found so that the message could be delivered to him, is a matter of defense Avhich must be shown by the company ; ^^® and any in- formation received by the messenger at the office of the addressee as to the whereabouts, is admissible to show that he was not at the time at the place to which the message was sent.^*'^ § 303. Failure to designate with accurateness the address. The sender is presumed to know the name of the party to whom he desires the message to be sent, where he resides and that he has written this accurately and correctly on the telegram. The com- pany's duty is only to transmit and deliver to the person whose name is given, at his address. So, if the company, after having assumed the duty to. transmit a message, sends it to the person at the place designated and same is accepted by the person claiming to be the ad- dressee, or an authorized agent of his, it will have discharged its duty, notwithstanding the fact that it was delivered to the wrong party. This may be caused by the contributory negligence of the '"Deslottes v. Baltimore, etc., Tel. Ind. 371; fVest. U. Tel. Co. v. Trissal, Co., 40 La. Ann. 183, 3 So. 566; Mil- 08 Ind. 566. liken v. West. U. Tel. Co., 110 N. Y. '"West. U. Tel. Co. v. Cooper, 71 403, 1 L. R. A. 28; West. U. Tel. Co. Tex. 507, 9 S. W. 598, 10 Am. St V. :\rcKibben, 114 Ind. 511, 14 X. E. Rep. 772, 1 L. R. A. 728n. 894; West. U. Tel. Co. v. Lindley, 62 "'Id. »" Id. -92 TELEGRAPH AND TELEPHONE COMPANIES. [§ 303 sender, by not giving the name and address of the sendee with suffic- ient aecnracv. Thus, if the sender should fail to designate with ac- curate definiteness the name of the addressee or his place of abode, and the message is delivered to a person claiming to be the party ad- dressed, as where the message is addressed to 291 Eaanpart street, and is delivered at that number on N^orth Rampart street, upon in- formation that the addressee lived there, instead of being delivered at that number on South Rampart street, where the addressee in fact resided, the company would not be liable. -^^^ Or, if the sender di- rects the message to Mrs. La Fountain, Kankakee, a place of twelve or fifteen thousand people, and fails upon request to make the name of the addressee more definite, or to give the street and number of her residence, he is guilty of such contributory negligence as will pre- vent him from recovering for the failure of the company to deliver the message. ^^'^ But should the sendee's place of business or resi- dence be the only thing improperly given in the message — his name being correctly written and known by the operator at the terminal office — it w^ould be the duty of the company to exercise diligent ef- fort to find and deliver the message at the proper place, and not that designated in the telegram. The address is subordinate to the name of the addressee and is given only as a means of finding the party addressed. § 304. Penalty imposed for failure to deliver. There are statutes in most of the states which impose a penalty on telegraph companies for a failure to promptly transmit and de- liver messages intrusted to them, and this penalty may be recovered without alleging or proving any actual damages. ^^^ But, in other cases, unless the plaintiff proves special injury or actual damage, he can recover nominal damages only.-*^^ "'Deslottes v. Baltimore, etc., Tel. Ihichanan. .35 Ind. 429, 9 Am. Rep. Co., 40 L;i. Ann. 183, 3 So. 566. 744. '«West. U. Tel. Co. v. McDaniel, 103 ''^'Little Rock, etc., Tel. Co. v. Da- Ind. 294, 2 N. E. 709. vis, 41 Ark. 79; Cults v. West. U. Tel. ^=^ Little Rock, etc., Tel. Co. v. Da- ( o., 71 Wis. 46, 36 X. W. 627. vi.s, 41 Ark. 79; West. U. Tel. Co. v. ^ ;J05] AS TO MESSAGES LIAHIf-I'lY. 293 § 305. Duty to preserve secrecy of message. It is the duty ui a tclegrapL coiiipuuy tu abstain from using or divulging the contents of messages intrusted to them for transmis- sion. There is a similarity between correspondence by mail and communicatiuiis by wire, with respect to the rights of the receiver of the letter and the telegraph company over the message. The weight of authority is, that the receiver of a letter has only a right in its tangible property or the paper on which it is written ; that the literary qualities or property therein belongs to the writer, and, that it can be used by the former only as a means of carrying out the purposes for wliieli it \vas written. From this doctrine it follows as a general rule, that the receiver has no right to publish the letter without the consent of the writer, and such publication will be enjoined by a court of equity. ^^- The grounds on which the right of injunction is granted for such matters is, that to permit a receiver of a letter to use it for other purposes than that for which it was written, or to permit him to have the right to divulge its contents, would be a breach of bad faith and would tend to create public disturbances and breaches of the peace. ^^^ In the application of this principle to tele- graph companies in the transmission of messages, it is very important to bear in mind that the company mr.st necessarily be informed of the contents of a message in order that it may be able to transmit it, but that this is the only reason Avhy it should obtain this information. It can obtain no interest cither in the tangible property of the tele- gram, as the receiver of a letter obtains in the letter, nor any inter- est whatever in it as a literary product. The receiver of a letter may use its contents for the purposes for which it was intended to be used, and may derive profit thereby; but the telegraph company can use the contents or knowledge of the telegram only as a means of cor- rectly transmitting and delivering it, and it would hardly be possi- ble that a telegi-am would be tendered to them for transmission, out of which they could derive further profit than that acquired for its service. While the^e is a striking similarity existing between these two parties over letters and telegrams, respectively, while in their possession, yet it seems that the interest acquired by the latter i^ not "-Sniitii, Per. Prop. 02. '^^^ Smith. Per. Prop. <)2; Gray on Tel.. § 25. 294 TELEGRAPH AND TELEPHONE COMPANIES. [§ 305 SO great as that of the former. So, if the former can be enjoined from using the letter for other purposes than that for which it was intended to be used, there is no reason why a telegraph company may not be enjoined from using or divulging the contents of the tele- gram. ^^^ The duty imposed on telegTaph companies in this respect is even greater than that of the receiver of a letter ; for the latter has the control over the tangible property of the letter and its contents sent directly in its original form from the writer, and being a prin- cipal in the correspondence has surely more liberties with the letter than the former over the messages intrusted to its care. It follows, therefore, that if a telegraph company makes any use or disclosure of its message other than is necessary in the ordinary course of its busi- ness, it will be liable to the sender. Involved in every contract for the transmission of a telegraphic dispatch is an obligation on the part of the company to keep its contents secret from the world,^^^ for a breach which it will be liable for all actual damages arising directly therefrom and should it be done in a willful or reckless manner, it should be held liable for punitive damages. The company is not liable, however, for a disclosure of a message in court in pursuance to a writ of subpoena duces tecum.^^^ § 306. Same continued — imposed by statute. In some states there are statutes which impose the duty, either upon telegraph companies or upon their operators, to abstain from disclosing the contents of a message intrusted to their care, and for a willful violation of which the wrongdoer is subjected to punish- ment. ^^'^ These are penal statutes and must, therefore, be strictly construed. So, if the statutes provide that the transmitting operator shall be punished for a violation of the statute, he, and not the com- pany, nor the receiving operator or messenger, shall be punished for the wrong. In other words, if the statute imposes this duty only on the transmitting operator, and the contents of the message are will- fully divulged at the other end of the line, either by the receiving operator or messenger boy, the first-named operator would not be guilty of a wrong, nor would the company, unless its servant was "*Id. ^''''Gray on Tel., § 25. ^"Cock V. West. U. Tel. Co., 36 So. '"Id. "^ 302. ^ 308] AS TO MESSAGES LIABILITY. 295 acting at that time within the scope of his authority. But should the wrong be committed by the company's employee while acting within his apparent authority, the company will be liable for such wrong as any other principal would be for the wrongs of his agent, under similar circumstances. § 307. Same continued — applicable to telephone companies. This duty is applicable to telephone companies. It is the duty of their employees to abstain from divulging or using any of the con- tents of any communication carried on over their wires, and for a violation of which they will be liable in damages. The strictness of this rule should be very stringently observed, since the operators of these companies are placed in a position to ascertain all the business transactions about which the communications are made, and could, for this reason, injure the communicants very seriously in their busi- ness affairs. § 308. Messages "in care of" common carriers. Common carriers, as such, are under no obligation to deliver mes- sages to their passengers. So, if a message is delivered to one of their employees, addressed in care of the common carrier, for one of the passengers on board, they will not be liable for a failure to de- liver the message, unless it is the custom or practice for such mes- sages to be delivered; and then it seems that the company would be liable. ^^^ Arrangements could be made to this effect by special agree- ment, and under such circimistances, the carrier would be duty bound to make such delivery. If, however, the message is addressed to one of the employees of the carrier and is sent in care of the latter, designating the particular carrier, a delivery to the latter will be suf- ficient delivery ; and it would be the duty of the latter to make a de- livery to the party addressed if practicable. But if the message is addressed to one of the employees of another carrier, as that of a sleeping car company, and sent in care of the common carrier of passengers, or railroad company, the latter would not be under any obligation to deliver the message, unless special arrangements have been made to that effect. ^•^ Davis V. Eastern Steamboat Co., telegram was delivered to the captain 94 Me. 379, 53 L. R. A. 239, where the of a steamboat. CHAPTER XIV. NEGLIGENCE. § 309. In general. 310. Presumption of negligence — onus proband!. 311. Same continued — illustrations. 312. Presumption may be rebutted. 313. Non-payment of charges — no defense — regulation. 314. Contributory negligence. 315. Messages must be legible. 316. Same continued — address must be definite. 317. Operator writing message for sender — his agent. 318. Messages not stamped — contributory negligence. 319. Delay in sending — no contributory negligence. 320. Injured party — should minimize loss. 321. Presumed to perform contract. 322. Should resort to Other means when necessary. 323. Misinterpreting message — addressee. 324. Should read carefully — sendee. 325. Cause — proximate — remote. 326. Contributory — negligence — same rule. 327. Evidence — wealth or poverty of either party — company. 328. Same continued — party injured. 329. Declaration of agents. 330. Subsequent acts of company — of plaintiff. 331. Evidence of plaintiff's good faith — erroneous messages. 332. Same continued — other cases. § 309. In general. Telegraph companies, having placed themselves before the public to assume public duties, must make suitable preparations to perform those duties as befitting an employment of this or of a similar nature. In order to do this, they should have the best and most suitable ma- chinery and facilities, and the most skilled and experienced work- men; and after being supplied as above required, they must not be guilty of carelessness in the performance of their work, but must ex- ercise ordinary care in the transmission and delivery of all mes- sages intrusted to them. On a failure to exercise reasonable care in the transmission of messages, and on a failure to use due diligence in finding and promptly delivering them to the parties addressed, whereby injury is incurred, they will be liable for all damages aris- (296^ <§ 300] NEGLIGENCE. 297 ing therefrom. It is not an easy matter to determine what is ordi- nary care, but the better hokling is, that ordinary care is such care as should be exercised by a responsible man of ordinary understan 317 § 317. Operator writing message for sender — his agent. It has been generally held that where an operator writes the mes-. sage for the sender at the latter's request, he acts as agent for him and not for the company in this particular matter. His duties to- ward the company are to receive the messages and the charges for the same, and then to transmit them ; when he goes beyond this duty he does not act as the company's agent.-^ While this is the general hold- ing, it seems there is, and ought to be, an apparent exception to the general rule. Thus, if the message is received by the operator over a telephone line and written down by him, the operator then acts for the company,-'* especially if it has been the custom to so receive mes- sages. Where the party desiring to send a message is unable to write on the account of ignorance, or because he cannot see how^ to write, or when otherwise unable to Avrite, the company should not refuse to serve him for this purpose, but the scope of the operator's agency un- der such circumstances should, it seems, be enlarged so as to devolve upon him the duty to perform this service.^ ^ § 318. Messages not stamped — contributory negligence. Where there is an act of Congress requiring all messages to be stamped, it is the duty of the sender to perform this duty and not that of the company.-''^ So, if a telegraph company refuses to trans- mit a message because it has not been stamped, it will not be liable for such refusal, or for a penalty for a refusal to transmit such a mes- sage. If, however, the sender is ignorant of such an act, it seems that the company should inform him of same and state this as a rea- son for refusing to accept the message. While it is an old maxim that ignorance of law excuses no one, yet the operator, having knowl- edge of such a law and knowing that the sender does not have this 22 West. U. Tel. Co. v. Edsall, 03 ^' Carl.ind v. West. U. Tel. Co., 118 Tex. 668; West. U. Tel. Co. v. Foster, Mich. 369, 74 Am. St. Rep. 394, 43 L. 64 Tex. 220, 53 Am. Rep. 754; Gulf, R. A. 280, 76 N. W. 762. etc., R. Co. V. Gur, 5 Tex. Civ. App. ''Id. 349. 24 S. W. 86. Compare Garland -'"West. U. Tel. Co. v. Hurley, 157 V West. U. Tel. Co., 118 Mich. 309, Ind. 90, 60 N. E. 682; Gray v. West. 74 Am. rSt. Rep. 394, 43 L. R. A. 280, V. Tel. Co., 85 Mo. App. 123. 76 N. W. 762. ^ 320] NEGLIGENCE. 305 knowledge, aliuuld surely infonn him of Uie reason for not accepting the message ; and, in doing this, he necessarily must tell him of the law. § 319. Delay in sending — no contributory negligence. A telegraph company cannot excuse itself from liability by claim- ing that the sender was guilty of contributory negligence in not de- livering the message earlier to the company, instead of waiting un- til the last minute.-'^ In determining this question, the fact must be considered as to whether or not the negligence of the company was the proximate cause of the loss ; since, if is not, the company will not be liable. The company may be guilty of negligence, but if it Is shown that the sender failed to exercise reasonable care in this par- ticular matter, wherein the company is guilty of negligence — or, in other words, where the sender is guilty of contributory negligence — he cannot recover.^* § 320. Injured party — should minimize loss. When a telegraph company has been guilty of negligence in the transmission and delivery of its messages, whereby the plaintiff has been injured or has suffered loss, it is incumbent upon the latter to minimize the loss, if he can do so at a trifling expense or with rea- sonable exertion.^^ This is a principle of law which has been up- held by almost all the courts, '"^ and which has been supported by the "Pope V. West. U. Tel. Co.,, 14 111, Georgia,— West. U. Tel. Co. v. Reed, App, 531; West. U, Tel. Co. v. Bruner, 83 Ga. 401, 10 S. E. 919. 19 S. W. 149. Illinoiii.—West. U. Tel. Co. v. Hart, =*West. U. Tel. Co. v. Housewright, 62 111. App. 120; West. U. Tel. Co. v. 5 Tex. Civ. App. I, 23 S. W. 824. North Packing, etc., Co., 188 111. 3GG, » Miller v. Mariner's Church, 7 58 N. E. 958, 52 L. E. A. 274, affinn- Greenleaf 51, 20 Am. Dec. 341. ing 89 111. App. 301. ^Alabaina. — Dougherty v. West. U. Indiana. — West. U. Tel. Co. v. Bris- Tel. Co., 75 Ala. 168, 51 Am. Rep. 435, coe, 18 Ind. App. 22. 89 Ala. 191, 7 So. 660; West. U. Tel. /oro.— Hasbrouch v. West. U. Tel. Co. V. Way, 83 Ala. 542, 4 So. 844; Co., 107 Iowa 160, 70 Am. St. Rep. West. U. Tel. Co. v. Crawford, 110 181, 77 X. W. 1034. Ala. 460, 20 So. Ill; West. U. Tel. Kentucky.— West. U. Tel. Co. v. Co. V. Chamblee, 122 Ala. 428, 25 So. Matthews, 67 S. W. 349, 24 Ky. L. 232. Rep. 3; Postal Tel. Cable Co. v. T. & T.— 20 306 TELEGRAPH AND TELEPHONE COMPANIES. [§ 320 public interest and soimd morality.^ ^ If the injured party fails to exercise reasonable diligence to make the loss as light as possible, he can only recover such damages as actually arise from the negligent act of the company, and not such as may have been minimized by a reasonable exertion on his part. It is not presumed that he knows of the company's negligence, but if he is informed of this fact, either directly or by circumstances which would lead him to inquire for such information, it is his duty to make the loss as light as possible, if he can do so at a small expense or by reasonable exertion. Thus, where a telegi'aph company fails to transmit a message, in which the plaintiff directs his agent to make a sale of certain property, it is the duty of the plaintiff, on discovering this fact, to use reasonable diligence in repeating the order to sell.^- But what his duty would be in any case depends upon the circumstances in the particular case at issue. The criterion is always what a reasonably prudent man would have done under similar circumstances,^^ and it is always in- Schaeffer, 62 S. W. 1119, 23 Ky. L. Rep. 344. Mississippi. — Shingleur v. West. U. Tel. Co., 72 Miss. 1030, 48 Am. St. Eep. 604, 18 So. 425, 30 L. R. A. 444. Missouri. — Reynolds v. West. U. Tel. Co., 81 Mo. App. 223. Neio York. — Leonard v. New York, etc., Electro Magnetic Co., 41 N. Y. 544, 1 Am. Rep. 446. Tennessee. — Marr v. West. U. Tel. Co., 85 Tenn. 550, 3 S. W. 496; Pepper V. West. U. Tel. Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699; West. U. Tel. Co. v. Mellon, 96 Tenn. 60, 33 S. W. 725. rea;as.— West. U. Tel. Co. v. Hoff- man, 80 Tex. 420, 15 S. W. 1048, 26 Am. St. Rep. 759; Gulf, etc., R. Co. V. Loonie, 82 Tex. 323, 18 S. W. 221, 27 Am. St. Rep. 891; West. U. Tel. Co. V. Birduc, 2 Tex. Civ. App. 517, 21 S. W. 982; West. U. Tel. Co. v. Terrell, 10 Tex. Civ. App. 60, 30 S. W. 70; West. U. Tel. Co. v. Jeans, 29 S. W. 1130. 88 Tex. 230, 31 S. W. 1S6; West. U. Tel. Co. v. Hill, 26 S. W. 252; West. U. Tel. Co. v. Davis, 35 S. W. 189; West. U. Tel. Co. v. Sorsby, 29 Tex. Civ. App. 345, 69 S. W. 122. Virginia. — Wash., etc., Tel. Co. v. Hobson, 15 Gratt, 122. ^^ Hamilton v. McPherson, 28 N. Y. 72, 84 Am. Dec. 330. ^- Doviglierty v. American Union Tel. Co., 5 Am. & Eng. Corp. Cas. (Ala.) 203; Leonard v. Tel. Co., 41 N. Y. 544, 1 Am. Rep. 446; True v. Int. Tel. Co., 60 Mc. 9, 11 Am. Rep. 156; N. Y. & W. Pr. Tel. Co. v. Dryburg, 35 Pa. St. 293; U. S. Tel. Co. v. Wenger, 262; W. & N. 0. Tel. Co. V. Hobson, 15 Gratt. 122 ; West. U. Tel. Co. v. Ward, 23 Ind. 377; Tyler v. West. U. Tel. Co., 00 111. 421; West. U. Tel. Co. v. Blanchard, 08 Ga. 299, 45 Am. Rep. 280. =«West. U. Tel. Co. v. Lydon, 82 Tex. 364, 18 S. W. 701; West. U. Tel. Co. v. Bryson, 25 Tex. Civ. App. 74, 01 S. W. 548; West. U. Tel. Co. v. § 322] NEGLIGENCE. 307 cumbont iipnu ihe cuiiii)aiiy to show tliat this (hity has not been per- formed/''* § 321. Presumed to perform contract. Telegraph companies contract with ihcir patrons for a valuable consideration to exercise reasonable care to transmit and deliver cor- rectly and promptly all messages accepted by them, and it is pre- sumed that they are carrying out their part of the contract. There- fore, it is not the duty of the sender to anticipate in this respect neg- ligence of the company, nor is it his duty to exercise diligence to as- certain by inquiry from the company or otherwise as to whether or not the sendee has received the message correctly ;'^° but it seems that if such a fact has come to his knowledge from a responsible source, it is his duty to inquire into the truth of such information. For instance, if it is clear on the face of an answer to a telegram that there is a mistake in the original, and on account of whicb loss may be incurred, it is the duty of the sender to inquire into the mis- take in order that he may minimize the loss ; ^" but if the loss has been incurred and there is no means by which it may be made lighter, it is not his duty to notify the company of the error made in the mes- sage.^' § 322. Should resort to other means when necessary. When a sender ascertains the fact that the company has been guilty of negligence, he should resort to other available means of communication, if he thinks it would be impossible for the former to accomplish the purpose by a reapplication to it ; ^^ but if the party Cain, 40 S. W. 024; Southwestern, ^^Hasbrouck v. ^Yest. U. Tel. Co., etc., Tel. Co. v. Taylor, 26 Tex. Civ. 107 Iowa 160, 77 X. W. 1034, 70 Am. App. 79, 63 S. W. 1076; \Yest. U. Tel. St. Rep. 185; Beynur v. McBride, 37 Co. V. Matthews, 67 S. W. 849; West. Iowa 114; Greenleaf on Evidence, U. Tel. Co. V. Lavender, 40 S. W. § 261. 1035; West. U. Tel. Co. v. Johnson, =' Rittenhouse v. Independent Line of 16 Tex. Civ. App. 546, 41 S. W. 367; Telegraph, 1 Daly (N. Y.) 474, 44 N. Gulf, etc., R. Co. V. Loonie, 82 Tex. Y. 263, 4 Am. Rep. 673. 323, 18 S. W. 221. "^ Southwestern Tel., etc., Co. v. ^-'Castigan v. Mohawk & Hudson R. Gotcher, 93 Tex. 114, 53 S. W. 686. Co., 2 Denio 609, 43 Am. Dec. 758. But see West. U. Tel. Co. v. Wisdom, "West. U. Tel. Co. v. Chamblee, 25 So Tex. 261, 20 S. W. 56, 34 Am. St. So. (Ala.) 234. Rop. 805, 22 L. R. A. 483. 308 TELEGRAPH AND TELEPHONE COMPANIES, [<^ 322 to whom the message is addressed is the plaintiff and the injured party, the company cannot set up the fact as a ground of defense that the sender failed to resort to these means."^ If the sender can- not prevent the entire loss, but only lessen it, he will not be pre- vented from recovering all the loss, but only such as he might have prevented by reasonable exertions.^ ° § 323. Misinterpreting message — addressee. If the message as received by the addressee is intelligible and not doubtful in its terms, he may act according to its intents ; and should he have misinterpreted its meaning on account of an error made by the company, the sender cannot be defeated by the defense of con- tributory negligence on the part of the sendee.^ ^ Thus, where a mes- sage was sent by a client to his attorney to attach a certain creditor for "seven hundred and ninety dollars," and when the message read as received "even hundred and ninety dollars ;" it was held that the attorney was not guilty of contributory negligence in interpreting the message as meaning "one hundred and ninety dollars"*^ But if there is anything in the message itself which would lead him to be- lieve that an eiTor had been made, or if there are any circumstances connected with it which, with reasonable prudence, would lead him to suspect that an error had been made, he will be guilty of contribu- tory negligence if he fail to inquire into such information when the opportunity is afforded.*^ If, however, on suspecting an error he re- quests the operator to wire to the relay station to verify the message, and the same is done, he will have discharged his duty and will not be gl^ilty of any negligence.^'* When the message is ambiguous, but »»West. U. Tel. Co. v. Wisdom, 85 ^= West. U. Tel. Co. v. Beals, 56 Tex. 261, 20 S. W. 56, 34 Am. St. Rep. Neb. 415, 76 N. W. 903, 71 Am. St. 805, 22 L. R. A. 483. Rep. 682. « Mitchell V. West. U. Tel. Co., 12 "West. U. Tel. Co. v. Adair, 115 Tex. Civ. App. 262, 33 S. W. 1016. Ala. 441, 22 So. 73; Manly Mfg. Co. "West. U. Tel. Co. v. Beals, 56 Neb. v West. U. Tel. Co., 105 Ga. 235, 31 415, 76 N. W. 903, 71 Am. St. Rep. S. E. 156; West. U. Tel. Co. v. Neill. 682; Tobin v. West. U. Tel. Co., 146 57 Tex. 283, 44 Am. Rep. 589. ra. St. 375, 20 Atl. 324, 28 Am. St. "Efird v. West. U. Tel. Co., 132 X. Rep. 802; Hasbrouch v. West. U. Tel. C. 267, 43 S. E. 825. Co., 107 Iowa 160, 70 Am. St. Rep. 181. 77 N. W. 1034. <^ 324] KEGLIGENCE. 309 still the sendee acts on it, guessing at its intended meaning, he will be responsible for all losses occurring from his incorrect guessing. The company cannot even be held liable for his wrongful guessing j^"^ and where the message is intelligible and unambiguous, it is a ques- tion of fact as to whether the sendee was misled in its meaning."*''' The nature of the telegram and the circumstances surrounding the sendee's position with respect to the business about which it was sent, should be considered by a jury in determining this question.*' For, if he has had other communications respecting this business, or if he is familiar with it, liis interpretation should be considered more carefully. § 324. Should read carefully — sendee. It is the duty of the sendee of a telegram to read it carefully be- fore acting thereon; and should he fail to do so, whereby loss is in- curred which might have been avoided, or at any rate could have been minimized, had the message been considered with more care, he, and not the company, must suffer for such negligence*^ It is very true that telegraph companies may be guilty of negligence in trans- mitting messages, but if the same is received, apparently intelligible, the sendee may safely act according to its terms ; yet if there is any ambiguity in the message which could be easily observed by an ordi- narily prudent business man by careful reading, the negligence of the company will be excused on account of the contributory negli- gence of the sendee. And again, these companies cannot be held lia- ble for a loss caused by the sendee acting on a misinterpreted or vague message.^^ These companies endeavor to teach their patrons that brevity of their messages is the mainspring of the former's exis- tence : it is better for the patron, in that it lessens his expenses ; and it is to the interest of the companies, in that it enables them to do ^''Hart V. Direct U. S. Cable Co.. hrouek v. West. U. Tel. Co., 107 Iowa 80 N. Y. 633; De Riitt v. New York. 100, 70 Am. St. Rep. 181, 77 N. W. etc., Electric Magnecto Tel. Co., 1 1034. Daly (N. Y.) 547; West. U. Tel. Co. "Id. V. Neill. r->7 Tex. 292, 44 Am. Rep. ** West. U. Tel. Co. v. Harper. 15 589. Tex. Civ. App. 37, 39 S. W. 599. "Manly Mfg. Co. v. West. U. Tel. "Davis v. West. U. Tel. Co.. 46 W. Co.. 105 Ga. 235, 31 S. E. 156; Has- Va. 48, 32 S E. 1026. "10 TTSLEGRAPH AXD TELEPHONE COMPANIES. [^ 324 more work in a shorter time. But while this is the case, it is not to be understood that thej have obligated themselves to write the mes- sage for the sender, nor to tell him how it should be written. This fact is attempted to be impressed on all who do business with them, and it is presumed that they know of this when they apply for ser- vice. The company, then, can only transmit such messages as may be presented to it for transmission and, if they are vague in any- wise, it is not the duty of the company to inform either the sender or addressee of its vagueness, since it may appear to the former as being vague when it would not so appear to either of the other parties. But if it is vague to the sendee, he should use reasonable exertions to find out its meaning and, on failure to do so, whereby injury has been in- curred, he will be charged with contributory negligence. § 325. Cause — proximate — remote. In order that the injured party may recover for an alleged negli- gence of the company, it must be shown that the company's negli- gence was the proximate cause of the injury. While this is the un- disputed principle of law in such cases, yet there has not been any rule laid down by wdiich it may be determined as to whether or not the negligence is proximate or remote. In other words, there has no<" been nor can there be a line drawn separating the two, so that it may be said that it is a subject to be placed on one or the other side of this line, but the facts in each particular case must be considered in determining the question.^'' After the facts have been presented, they must then be sufficient to warrant a jury in finding that the neg- ligence was the proximate cause of the injury ; that is, facts and cir- cumstances must be proved sufficiently to bring conviction to a rea- sonable mind, Avithout resorting to mere conjecture or uncertainty, and mere presumption that the company's neglect of duty was the proximate cause of the injury.^^ A jury must not, in determining '^'' Hendershot v. West. U. Tel. Co., Evans Corns. Co. v. West. U. Tel. Co., 106 Iowa 529, 76 N. W. 828, 68 Am. 101 Mo. App. 500, 74 S. W. 876; Hig- St. Rep. 313; MePeek v. West. U. Tel. don v. West. U. Tel. Co., 132 N. Car. Co., 107 Iowa 356, 78 N. W. 63, 70 726, 44 S. E. 538. Am. St. Rep. 205, 43 L. R. A. 214; " Hendershot v. West. U. Tel. Co., West. U. Tel. Co. v. Simpson, 64 Kan. 106 Iowa 529, G8 Am. St. Rep. 313, 76 309, 67 Pac. 839; Rtrahorn-IIutton- X. W. 828. ^362] NEGLIGENCE. 311 this question, indulge in conjecture, speculation, or guesswork, al- though they need not he convinced to an absolute certainty; if there is a preponderance of the evidence to the effect that negligence was the proximate cause of the injury, the jury is warranted in finding the company liable therefor.^- Thus, a delay of five hours in deliv- ering a message, the importance of which was shown on its face, to a veterinary surgeon requesting his immediate attendance to treat a very valuable horse, was negligence on the part of the company; and if by a prompt delivery the surgeon would probably have gotten to the horse in time to have saved its life, then, the proximate cause of the death of the animal would be the delay in the delivery of the message.^^ Where the plaintiff informs the company that he is ex- pecting to receive an important message and, after this information, the company delays the delivery of a telegram, whereby the plaintiff is defeated in capturing a fugitive from justice, and thereby loses the reward, the company's negligent delay is the proximate cause of the loss and it is, therefore, liable for so much thereof.^* It must be shown that- the prompt delivery would have prevented the loss ; as, where a w^arning message, directed to a man who was being pursued, was not delivered, and the addressee was killed by his pursuers: it was held that there could be no recovery, since it did not appear that the prompt delivery of the message would have saved his life.^^ § 326. Contributory — negligence — same rule. The same rule, as above, will apply where the company attempts to set up, as a defense, the contributory negligence of the injured party. The plaintiif must use ordinary care in carrying out his business transactions with these companies, an West. U. Tel. Co. v. Henderson, 89 A.). S.*? Fed. 902; Wallingford v. Ala. 510. 18 Am. St. Rep. 148. 7 So. 419. 314 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 327 punishment for its "willful wrongs. In order to impose the proper punishment to meet the injury inflicted, the wealth of the company must be considered; for the greater the wealth of the latter, the greater must be the damages imposed. The most successful way of punishing these and other corporations for their willful wrongs, is by awarding damages against them for such wrongs, and the better remedy in deterring the commission of other and similar wrongs is by awarding damages in every case commensurate with their wealth. § 328. Same continued — party injured. Where the plaintiff has lost a great bargain in a contract of sale of property, by the company negligently delaying a message concerning such sale_, the evidence of the embarrassed financial condition of the sendee is not admissible.*^ ^ ISTeither could he show the condition of his family, nor his future prospects in other lines of business; but only such evidence could be admitted as pertained to the negligent act of the company. It seems, however, that where the negligent act has been willful, he may show his wealth and standing or reputation. Almost the same reasons may be given why the wealth or reputation of the plaintiff should be shown as those stated above, in the admis- sibility of evidence of the wealth of the company. Damages in the way of compensation for a willful wrong of the company to a man of limited means or of small reputation, would not be sufficient for a man of greater wealth or more extensive reputation. Therefore, in considering the amount of damages to be awarded for a willful act of the company in the transmission of messages intrusted to its care, the wealth or reputation of the plaintiff may be shown in order to arrive at a proper amount of damages. § 329. Declaration of agents. The general principle of law with respect to the admissi- bility of statements and declarations of agents as against their prin- cipals, are applicable here. Therefore, statements or declarations of agents or employees of these companies are inadmissible as evi- «^West. U. Tel. Co. v. Way, 83 Ala. 542, 4 So. 844. ■^ 330J NEGLIGENCE. 315 dence against the company, unless the same is made while acting within the scope of their duties, at the time when the negligent act is alleged to have been committed, and is made with reference to such act. In other words, the declaration or statement must be part of the res gestae. ^^ Thus, a statement made by an agent of a telegraph company is not competent as against the company, to prove that a message was not transmitted, when not made in the performance of any duty relating to its transmission/'^ But a statement that the mes- sage had not been delivered, made in answer to an inquiry, has been held to be admissible as a "part of the same transaction," and not re- lating to past occurrences.*"'" Every statement or declaration of an agent of these companies, telling how the negligent act was com- mitted, and made at or during the time of such commission, is admis- sible as being that of the company, to show how the same was com- mitted. Thus, the statement of the company's messenger that he cannot find the addressee — who is the party injured — and made at the time he is looking for the addressee, is admissible against the company ; '^^ or any statement made by the messenger concerning the contents of the message, and which, it was claimed, the company Avrongfully and negligently disclosed, and made at the time the mes- senger was delivering same, is admissible against the company to show that the contents of the message were negligently, disclosed.^'' § 330. Subsequent acts of company — of plaintiff. Any act of the company made through its agents, and after the time the negligent act of the company is claimed to have been com- mitted, and not connected with said negligence, cannot be shown against the company in an action against it for damages caused by such neglect. Thus, in an action against a telegraph company for neglifi-ence in the transmission of a message, evidence is inadmissible against the company to show that, because of the alleged negligence. ■" Sweetland v. Illinois, etc., R. Co., Iowa 210, 71 N. W. 210. See. also. 27 Iowa 433, 1 Am. Rep. 285. Garland v. West. U. Tel. Co., 118 Mich. «• Aiken v.' West. U. Tel. Co.. 5 S. 300, 76 N. W. 762, 74 Am. St. Rep. C. 358. 304, 43 L. R. A. 280; West. U. Tel. "West. U. Tel. Co. v. Way, 83 Ala. Co. v. Lydon, 82 Tex. 364. 542, 4 So. 844. "'West. U. Tel. Co. v. Bennett. 1 •"Evans v. West. U. Tel. Co., 102 Tex. Civ. App. 558, 21 S. W. 690. 316 TELEGRAPH AND TELEPHONE COMPANIES. [§ 330 one of its officers made a deduction from the pay of one of its opera- tors.^* Or, if one of the operators was discharged a few days after the negligent act ; or, if new and different machinery or instruments were substituted for those in use at the time of the act, these facts could not be sho\vn in evidence against the company in an action for the negligent act But any subsequent act of the plaintiff toward the company, disconnected with the business transaction in which the negligent act is claimed to have been committed, yet in the further- ance of the consummation of such business, may be admitted to show the negligence of the company; as, where the sender sends a second message to the operator at the destination of the first message with instructions to deliver the first, this act of the plaintiff may be ad- mitted to show the negligent delay in delivering the first.^^ And it has further been held, that evidence could be admitted to show that the plaintiff sent another message at the same time to the same place — but to another person — and received a reply to same, in order to show that the company was guilty of negligence in transmitting and delivering the first. '^'^ § 331. Evidence of plaintiff's good faith — erroneous messages. When a message has been erroneously transmitted and acted on by the plaintiff to his injury, any evidence as to his understanding of the message may be admitted for the purpose of showing his good faith in relying on it, as understood, and that he acted on the basis of that understanding. Thus the plaintiff, who receives in reply to a message to his stockholder a message stating the price of cattle, and buys according to his understanding of the message in such a way as to make a profit on them, may introduce, as evidence, the telegram re- ceived, to show whether or not the error was such as would lead a careful and prudent man to act thereon as he acted, and thereby to show his good or bad faith.''^^ And where the meaning of a telegram is couched in such terms as to be ambiguous to persons not engaged in the same business as that of the plaintiff, it may be explained by the «»Cock V. West. U. Tel. Co., 36 So. "> West. U. Tel. Co. v. Frith, 105 (Miss.) 392. Tenn. 167, 58 S. W. 118. «*Grinnell v. West. U. Tel. Co., 113 "West. U. Tel. Co. v. Lydon, 82 Mass. 299, 18 Am. Rep. 485. Tex. 364, 18 S. W. 701. <§, 332] NEGLIGENCE. 317 testimony of the sender J- Thus, evidence as to the price of goods in certain markets on a specified day, by a person who testifies that he knew the fact, is competent to go to the jury in the absence of evi- dence that he did not know such fact. The object in introducing such latter evidence is to prove that the price had advanced in the mean- time, and that plaintiff was, therefore, obliged to pay a higher price than would have been necessary had the first message iDcen sent prom])tly. § 332. Same continued — other cases. In an action against a telegraph company for failure to deliver a message, if the defendant attempts to justify itself under the plea that the plaintiff was an obscure and unknown person, the latter may iestify as to the nature of his business. He may tender and introduce in evidence business cards, letterheads, and envelopes (particularly after he has testified, without objection, that he so used them), for the purpose of showing that he had used the ordinary means of ad- vertising himself, and that defendant, in the exercise of reasonable diligence, might have found some person who could give information as to his address."^^ Evidence of the proximity of the place of busi- ness and the residence of the plaintiff to the office to w^hich the mes- sage was transmitted, and that it could have been forwarded to him from either place in time to prevent the loss, is competent.'^^ Where the message, on which suit is brought for failure to deliver, was ad- dressed to a physician, the company cannot introduce evidence in its defense that it was the custom of such physician not to make certain calls without prepayment of his professional charges."^ ^ Since it is not right for these companies to speculate on the chances that such summons will or will not be obeyed, they cannot, therefore, introduce evidence respecting such speculations.'^^' Letters and statements of "Aiken v. West. U. Tel. Co.. 69 "* Gulf, etc., R. Co. v. Wilson, 69 Iowa 31, 58 Am. Rep. 210, 28 X. W. Tex. 739, 7 S. W. 653. 419. "West. U. Tel. Co. v. Woods, 56 "West. U. Tel. Co. v. Collins, 45 Kan. 737, 44 Pac. 989. Kan. 88, 25 Pac. 187, 10 L. R. A. " West. U. Tel. Co. v. Henderson, 89 515n. See, also, Garland v. West. U. Ala. 510, 7 So. 419, 18 Am. St. Rep. Tel. Co., 118 Mich. 369, 74 Am. St. 148. Rep. 394, 43 L. R. A. 280. 76 N. W. 762. 31S TELEGKAPII AXD TELEPHONE COMPANIES. [§ 33^ the addressee as to the reasons for liis failure to purchase stock for the plaintiff, ordered by letter and telegram, have been held to be in- admissible in any action for failure to deliver the telegram.'" Wheu a telegraph company contracts to furnish an oil broker with accurate quotations of prices of oil, and to transmit his message for pur- chases and sales, he may show, when sued on the contract, the quota- tions furnished and directions given in reliance thereon.''^ And his testimony as to purchases and sales made under such directions, at places where he was not personally present, is admissible, and cannot be excluded under the rule requiring the production of the best evi- dence, as the purpose of the rule is to exclude evidence merely sub- stitutional in its character.'^^ On failure to deliver a message, it is not error to exclude evidence Avhich shows that the message was sent by telephone, where it was not delivered.^*^ "West. U. Tel. Co. v. Cooper, 71 ''"West. U. Tel. Co. v. Stevenson^ Tex. 507, 9 S. W. 598, 10 Am. St. Eep. 128 Pa. St. 442, 15 Am. St. Rep. 687, 772, 1 L. R. A. 728. 5 L. R. A. 515, 18 Atl. 441. "U. S. Tel. Co. V. Wenger, 55 Pa. ^MYest. U. Tel. Co. v. Jones, 13 So. St. 262, 93 Am. Dee. 751. (Miss.) 471. CHAPTER XV. LIABILITIES AS AFFECTED BY RULES AND REGULATIONS. § 333. Right to make reasonable regulations — in general. 334. Must be reasonable. 335. Must be reasonably applied. 336. Same continued — reasonableness — who should decide. 337. Distinction between by-laws and rules and regulations or resolutions. 338. Same continued — particular regulations. 339. Information as to meaning of message — can not demand. 340. Delivery at company's ofl&ce — reasonable. 341. Prepayment of charge — reasonable regulation. 342. Extra charges for delivering beyond free-delivery limit — not always reasonable. 343. Deposit for answer — not always reasonable. 344. May waive prepayment. 345. Regulation of office hours. 346. Same continued— statutory penalty for delay— hours not the same. 347. Reasonableness of the rule. 348. Same continued — waiver of regulations. 349. Employees need not be informed of other office hours. 350. Office hours as affects company's duty— night message. 351. Knowledge of sender as to office hours. 352. Telephone companies — enforcement of tolls. 353. May waive regulations. § 333. Right to make reasonable regulations — in general. It gives Its pleasure to discuss, at some length, the right of tele- graph companies to make reasonable regulations for the purpose of conveniently performing their duties toward the public and the ef- fect they have upon their rights and liabilities. It is an unquestion- able fact that these companies have the same right as any other cor- poration or private individual, to prescribe, adopt and enforce all reasonable rules and regulations for the purpose of conveniently dis- charging their duties.^ In fact, it would be impossible for them to 'Hewlett v. West. U. Tel. Co., 28 ney v. New York, etc., Printing Tel. Fed. 181; True v. International Tel. Co., IS Md. 341, 81 Am. Dec. 607; Co., 60 :Mc. 0. 11 Am. Rep. 15G; Bir- West. U. Tel. Co. v. Neal, 86 Tex. 308, (319) 320 TELEGRAPH AND TELEPHONE COMPANIES. [§ 333 carry on their business with any amount of safety, either to them- selves or to those with whom they may deal without clothing them- selves with these rights, with which all must comply. It may be said that it is one of their inherent rights, by means of which they may perform and carry out the objects for which they were incorporated. There is a limit, however, to the extent to which they may exercise these rights. They, being institutions having a legal entity and thereby assuming public functions, cannot prescribe and enforce a rule which would release them from liability for any act of negli- gence of their servants or employees ; ^ nor would any of their regu- lations be binding which would infringe upon public policy, or be in conflict with the general principles of the common law ; and yet they may limit to a certain extent their common-law liability.^ It has long been a controverted fact as to whether or not they could enforce a rule against one of their patrons who had no knowledge of the ex- istence of such a rule; but a number of these rules which we are specially discussing are to be found in full on the blank forms fur- nished to their customers, and on which messages are required to be written. When the fact of the knowledge of these particular rules is in question, it is presumed that the patron has knowledge of, and gives his assent to them, when he signs the telegram. He will be bound by any other rule or regulation of which he has knowledge, or of which he is presumed to have knowledge, and to which he has di- rectly or indirectly assented.* § 334. Must be reasonable. The rules and regulations adopted by these companies must be reasonable and not such as would relieve them of the obligations 25 S. W. 15, 40 Am. St. Rep. 847 ; Tel. Co., 62 Me. 209, 16 Am. Rep. 437 ; West. U. Tel. Co. v. McMillan, 30 S. Tyler v. West. U. Tel. Co., 60 111. 421, W. 298; Bartlett v. West. U. Tel. Co., 14 Am. Rep. 38, 74 111. 168, 24 Am. 62 Me. 209, 16 Am. Rep. 437; West. Rep. 279. But see contra Grennell v. U. Tel. Co. V. Jones, 95 Ind. 228, 48 West. U. Tel. Co., 113 Mass. 299, 18 Am. Rep. 713; West. U. Tel. Co. v. Am. Rep. 485; Becker v. West. U. Buchanan, 35 Ind. 429, 9 Am. Rep. Tel. Co., 11 Neb. 87, 38 Am. Rep. 356, 744. 7 N. W. 867. 2 True V. International Tel. Co., 60 *True v. International, etc., Tel. Co., Me. 9, 11 Am. Rep. 156; Hibbard v. 60 Me. 9, 11 Am. Rep. 156. West. U. Tel. Co., 33 Wis. 558, 14 *Id. Am. Rep. 775; Bartlett v. West. U. <§ 334] LIABILITIES RULES AND KEGULATIOXS. 321 which liiw and public policy imposes.^ '-i^^lify have become one of the most iui])i»rtant factors in the commercial world, hj means of which the most im{)ortant business transactions are beino- consummated and with far iireater celerity than by any other means or device known. 'I'liey, having plac(ly to the former for their services, is not limited = Ellis V. American Tel. Co., 13 Al- 4(il. 15 Am. Rep. 917, 4 L. R. A. Olln. liMi (:Ma^^.) •22(1; \Yest. U. Tel. Co. v. 17 Atl. 736. Oii.>\vold. 37 Ohio St. 313, 41 Am. ^' True v. International Tel. Co.. t?0 Rep. 500; West. U. Tol. Co. v. Rev- :Mo. !>. 11 Am. Rep. 156; West. V. nolds, 77 Va. 173. 46 Am. Rep. 715; Tol. Co. v. Reynolds. 77 Va. 173, 40 Oillis V. West. V. Tel. Co., 61 Vt. Am. Rep. 715. T. & T.— 21 322 TELEGRAPH A^'D TELEPHONE COMPANIES, [<^ 334 to such person; but they also affect the public, and are therefore against public policy, because they take from the public a part of the security it otherwise would have J § 335. Must be reasonably applied. These rules and regulations must not only be reasonable, generally, but they must be such as can be reasonably applied, under the special circumstances of any particular case, and while they may ordinarily be reasonable, yet they may operate unreasonably in a particular case ; ^ so, in such a case, they will not be enforced. As was very ably said by an eminent court, while discussing this point : "Reason- able regulations of public corporations like these must be reasonably applied, and a rule which is generally fair, may, under special cir- cumstances, become oppressive and unreasonable as applied in the particular case; and so these corporations must exercise ordinary prudent discretion in relaxing their regulations." ^ This is ably il- lustrated by Judge Hammond, in a case arising out of the unrea- sonableness of a regulation requiring a prepayment of the charges for an answer to a telegram, sent by a poor person, who notified the com- pany of his destitute circumstances. In a case of this nature, the court held that this rule should be relaxed and not enforced as where the sender were able to prepay for the answer. ^^ § 336. Same continued — reasonableness — who should decide. After considering the fact that these companies may prescribe, adopt and enforce all necessary rules and regulations for the conven- ient performance of their duties, and that the same to be binding must be reasonable, the question which necessarily follows is, Wlio must determine the reasonableness of these rules and regulations ? These companies, surely, cannot say that they are or that they are not reasonable ; ^^ then, it should be decided either by the court or by a jury, or by both. Some courts have held that it was a question of 'Telegraph Co. v. Griswolrl, 37 Ohio "Id. St. 301, 41 Am. Rep. 500. '"Id. » Hewlett V. West. U. Tol. Co.. 28 "True v. International Tel. Co., f>0 Fed. 181. Me. 9, 11 Am. Rep. 160. § 337] LIAlUiaTlES RULES AND REGULATIONS. '-'y2Z fact to be decided by a jurj.^- But it seems that this should be a question of law for the court to decide, if any iixed and jjermanent regulations are to be established ; and the better authorities are in accord with this holding, for the reason that a jury in one case may hold a certain rule reasonable, while another jury in another case might hold the same rule unreasonable.'^ The circumstances in no tAvo cases are always similar throughout. And so, where the facts pertaining to the rule in question arc in dispute, some courts hold that the question of the reasonableness of the iiile is a matter for the jury under proper instructions from the court, as a mixed question of law and fact, and that it is never a question for the court except when the facts are undisputed. ^^ We are inclined to believe that the lat- ter holding is the correct one. That is, when the reasonableness of the rule depends, in the particular instance, upon disputed facts, it is a mixed question of law and fact ; but if the facts are not dis- puted, it is clear, both upon principle and according to the weight of authority, that the question is one of law for the court. '^ § 337. Distinction between by-laws and rules and regulations or resolutions. In this country, there is clearly a distinction between the by-laws of the company — which are adopted for the purpose of regulating and controlling the business affairs of the company with its servants and employees, and which can only be adopted by the stockholders or by the directors, when this right is delegated to them — and the rules and regulations which are adopted, generally, by some officer or ser- vant of the company to be enforced against all who apply to it for " State V. Overton, 24 N. J. L. 435 ; '■* Id. Morris, etc., K. Co. v. Ayres, 29 N. J. '^^ St. Louis, ete., R. Co. v. Hardy. L. 393'; State V. Choven' 7 Iowa 204; .55 .\rk. 134, 17 S. W. 711; Old Colony Tex., etc.. K. Co. v. Adams, 78 Tex. V^. Co. v. Tripp, 147 Mass. 35, 17 N. E. 372, 14 S. W. 666 ; Prather v. Railway S9 ; Louisville, etc., R. Co. v. Fleming, Co., 80 Ga. 427, 9 S. E. 530; Heimann II Lea. (Tenn.) 128; Wolsey v. Rail- V. West. U. Tel. Co., 57 Wis. 562, 16 r.a.l Co., 33 Ohio St. 227; Hoffbaur X. W. 32. V. Railway Co., 52 Iowa 342, 3 N. W. "Com. V. Power, 7 Met. (Mass.) 121: Shepherd v. Gold, etc., Tel. Co.. 596; Pitt^burlr & R. Co. v. Lyon, 123 38 Hun (N. Y.) 338; Smith v. Ra. St. 140, 10 Am. St. Rep. 517, 2 Cold, etc., Tel. Co., 42 Hun (N. Y.) L. R. A. 4S0, 16 Atl. 607. 454. 3--i TELEGKAPII AXD TELEPHO^^E COMPANIES. [<§ 337 services,, for the purpose of coiiveiiieiice and safety, both to the com- pany and its patrons. A by-law is adopted, specially, for the inter- nal management of the company, and can only be enforced against the company and its employees, and those who transact business with the former, with notice of such. The rules and ]-egulations, on the other hand, are adopted, more especially for the external manage- ment of the company, and can be enforced, when reasonable, against all who do business with it.^" These rules and regulations are not to be understood as meaning the same thing as resolutions passed by the company, in that the latter is merely an act of temporary enforce- ment against some particular object or person. They are adopted not to be enforcible against the public, generally, at all times, but are passed at some of the directors' meetings as a temporary enforce- ment against some particular person or thing. ^'^ § 338. Same continued — particular regulations. Should the company adopt a rule providing for all messages to be delivered to it in writing, the same would be reasonable; and, should the company refuse to accept the message for this reason, it would not be liable for any injury caused by the message not being transmitted.^® However, if the company were to accept the message, and be paid for its transmission; or if it had been in the habit of receiving oral messages — or messages over the telephone ^^ — for transmission, and refuse to transmit, it would be liable for any in- jury arising thereby.-'^* The message should be fully and clearly written, ^^ without the use of numerals, when delivered to the com- pany, and in the language prevailing at the place where the contract is made; since the company has no right to change the message,^^ so as to make it clearer, and that, too, at the request of the sender.^'^ ''State V. Overton, 24 N. J. L. 435, '"West. U. Tel. Co. v. Dozior, 7 So. 01 Am. Dec. 671; Morris, etc., R. Co. (Miss.) ,325. V. Ayres, 29 X. J. L. 393; Com. v. =' Primrose v. West. V. Tel. Co., 9 Power, 7 Met. 596. Am. P. & Cor. Rep. 722. " 10 Cyc, p. 3.50. '^ Pegram v. West. L'. 1V1. Co., 100 "West. U. Tel. Co. v. Wilson, 9 So. X. Car. 28, 6 S. E. 770, G .\m. St. Rep. (Ala.) 415; Cumberland Tel. Co. v. .557. Sanders, 35 So. (Miss.) 653. == West. U. Tel. Co. v. Foster, 64 "Texas, etc., Tel. Co. v. Sieders, 29 Tex. 220, 53 Am. Rep. 754. S. W. 258. <^ 339] LIABILITIES IJLLKS AXD REGULATIONS. 325 The company maj require that tlie messages shall not only be written lc;j,ibly but that they shall not contain any immoral or indecent lan- guage ; -■* nor be such as would subject the company tgra])h signature of the sender, un- less a powder of attorney from him is produced. This holding, how- ever, was in a case in which the message was tendered by a connect- ing line,^^ and in view of the fact that these companies are often lia- ble for forged messages, it may be well to question whether it may not enforce such rognlntiou.-' § 339. Information as to meaning of message — can not demand. Where a message is ambigmous on its face, the company cannot demand of the sender that it be informed of the nature and purport of the message. It cannot, therefore, enforce a regulation which pro- vides that the patrons shall inform its operators of the true meaning of every message tendered it for transmission.^^ The messages must be clearly and legibly written out, and this is all that is necessary in order for the operator to be able to transmit it in the language in Avhich it is tendered. It is not necessary for him to know the mean- ing of the message to be able to transmit it correctly. "A regulation of this description would simply seek to pry into, Avithout cause, the "West. U. Tel. Co. v. Ferguson. 57 "West. U. Tel. Co. v. Ferguson, 57 Ind. 495; Arclianibanll v. Groat Infl. 495. Northwestern Tel. Co., 14 Quebec 8. 'West. U. Tol. Co. v. Ferguson, 57 "Smith V. West. U. Tel. Co., 84 I ml. 495. approved in Gray v. West, Ky. 604. 2 S. W. 483. T. Tel. Co., 87 Ga. 350. 27 Am. St. ^-'Atlantic, etc., Tel. Co. v. West. U. ISep. 257, 14 L. E. A. 95, 13 S. E. Tel. Co.. 4 Dalv (X. Y.) 527. 5(i2. 326 TELEGRAPH AjSTD TELEPHONE COMPANIES. [^ 339 private affairs of those "who wish to employ the company, and, in its tendency to check the unreserved communication of intelligence by telegraph, would be peculiarly inconsonant with public policy."-'*^ If the company should be subjected to a civil action, or to a criminal prosecution, for transmitting certain messages, and if it should be in doubt as to whether or not a certain particular message tendered for transmission w^ould subject it to one of these actions, and as the company could not demand information of the meaning, the doubt should be construed in favor of the company, since to hold other- wise, would often place these companies in an unpleasant attitude. So no rule laid down by the company can be so stringent and enforci- ble, as that the parties could be compelled to diviilge the meaning of such message ; this being the case, the company should receive the benefit of every ambiguous telegram. The company may have this right against the sender of a meaningless telegram, where he fails to inform its agent of its meaning. And if the company is guilty of negligence in the transmission and delivery of such a message, whereby injury has been incurred, the injured party could only re- cover nominal damages.^^ So, it might be better on the part of the sender, to voluntarily give such information, even when he cannot be compelled by the company to do so. § 340. Delivery at company's office — reasonable. A telegraph company may provide in its regulations that all mes- sages shall be delivered at one of its transmitting oflSces.^^ Accord- ing to such regulation, a delivery to one of the company's messengers is not a delivery to the company, unless it has been the custom of the latter to consider this as a proper delivery. In such cases, the messenger acts as agent for the sender, in that particular matter, and not for the company.^^ The company, doubtless, is better posted about the working order of its lines and its ability to transmit mes- sages intrusted to it, and the sender, on the other hand, is of course, better informed as to the contents of the message; should there be »Gray on Tel., p. 24. Ga. 613, 44 Am. St. Rep. 95. IS S. E. ^See title, "Message in cipher or 1008. otherwise unintelligible." ?^ West. U. Tel. Co. v. Ferguson, 57 "Stamey v. West. U. Tel. Co., 92 Ind. 495. 1^ 341] T.IABILITIES RULES AND KEGULATIOXS. 327 any ambiguity on the face of the message, the latter could, if he were at the transmitting office, make clear the ambiguities, and thereby aid and assist the operator materially in making a correct transmis- sion. If the company could be forced to accept the message as given to its messenger, it could not, of course, have him present to explain the meaning of the message ; and yet it would be under obligation to transmit it in its ambiguous state.^^ § 341. Prepayment of charge — reasonable regulation. A regulation of these companies, which provides that the sender shall prepay all the charges for transmitting and delivering mes- sages/^ is reasonable and enforcible. In this respect, these compan- ies are similar to common carriers of passengers, in that each may exact of its patrons a prepayment of a reasonable compensation for the service which they hold themselves out to the public as ready and willing to perform. These are the considerations they obligate them- selves to accept, in lieu of their respective public duties assumed. Like all other contracts, this consideration may be either a subsequent or a precedent condition to the performance of such contract; and whether or not the condition is either precedent or subsequent de- pends, as in other contracts, upon the custom of the companies or upon the expressed agreement to that effect. The consideration of a contract for the transmission of a telegram is generally made with respect to the company's rules and regulations to that effect. An ex- pressed stipulation, which provides that this consideration shall be a condition precedent to the performance of its duty — and all who apply to such companies for services are presumed to have notice of such a condition — must be complied with, before the company can be forced to accept the message for transmission. The main ground on which this reason is founded is that they may be instrumental in preventing these companies from suffering a probable loss. When parties to a telegram are so much interested in a business affair as to seek the aid of a telegraph company — which is not interested in the •»Gray on Tel., § 13. 811, 5 Am. St. Rep. 672: Smith v. "Langley v. West U. Tel. Co.. 88 Ga. West. U. Tel. Co., 83 Ky. 104, 4 Am. 777, 15 S. E. 291; Harkness v. West. St. Rep. 126. U. Tel. Co.. 73 Towa 190, 34 X. W. 328 TELEGRAPH AK^D TELEPHONE COMPANIES, [§ 341 results of the message — to assist them in coiisununatiiig their busi- ness arrangements, it is more reasonable for the company to demand a payment of the charges for its assistance before the same is ren- dered; furthermore, it is easier to collect, then, than it would be after the services have been rendered and after the interested parties have accomplished their desired purposes. In other words, if the sender has a hesitancy in prepaying the company for its services rendered in transmitting a telegram — and in the performance of which th(^ former, doubtless, is much more interested, than the latter — surely he will have a much greater hesitanqy in paying for same after the purposes of the telegram have been accomplished and possibly, too, at his loss.-'^^ § 342. Extra charges for delivering beyond free-delivery limit — not always reasonable. It has been held by some courts that a rule of a telegraph company which required an extra deposit by the sender, or a guaranty of same, to pay for the delivery when the addressee lived beyond the free de- livery limit, w'as reasonable, whether or not the sender knew of the addressee's residence with respect to the distance from the central of- fice of the company.^*^ We agree with these authorities that this is a reasonable rule and that the company may exact of the sender an extra deposit for this extra service ; provided, the sender knew that the addressee lived beyond the free delivery limit, otherwise it would not be. This point was most a1)ly discussed by Judge Gavin, and it gives us much pleasure to quote what he has to say in the note below. ^''' '•^ Gray on Tel., § 13. pect that the company will carry the ^ West. U. Tel. Co. v. Henderson, 8!» message to the person addressed, if Ala. 510, 7 So. 419. 18 Am. St. Rep. within the statutory delivery limits, 148. and present it for delivery. If there ^ "Stich a regulation as we are now bt then an additional sum due, the considering would, as it seems to us, company may require its payment be- be harsh, inequitable, and unnecessary. fore it nurrenders the message to the When the patron pays to the company sendee, if it prefers to do so rather the amount which he believes, in good than rely solely upon the sender for its faith, covers the entire charge for the jmyment. The company Avill thus be service, and the company receives, it furnished ample protection, and the and the message, he has a right to ex- expectations and purposes of the send- <^ 343] LIABILITIES KULES AND RKGULATIONS. 329 § 343. Deposit for answer — not always reasonable. As a general rule, a regulation, Avliieh imposes the duty upon a transient person to deposit a sufficient amount of money with the company to pay for as many as ten words in answer to his telegram, is reasonable; yet there may be some few exceptions to the rule. The reason of the rule, in one case, was based on the ground that it was a matter of social etiquette, due by the sender to the addressee, that the former pay for the answer to his telegram.''^ ^Vliile this courtesy should be extended to the addressee, especially when these telegrams are concerning the business of the sender, yet this is no reason why these companies should, by their regulations, enforce the laws of so- cial etiquette.^^ Almost the same reason given for holding that the company may exact of the sender a prepayment of the charges for transmitting the original message, may be applicable here. The nat- ural inference is, that where the original telegram demands an an- swer to the business matter about which it relates, is of more interest to the sender than it is to the addressee, a transient man with the likelihood of being at another place when the answer is received and at a place where it could not conveniently be delivered, the company would probably lose the charges for the answer, and for this reason the company may enforce this regulation. But suppose the transient person desires that the answer be sent to another place, or over anoth- er line; or, suppose he is a tramp or a person in destitute circumstan- er of the message will not be disap- ei would, in llic most of those few in- pointed, stances, biiii^' the money from him. This course seems to use to aflord a If, however, the company might occa- much fairer and more equitable solu- sionally lose a deliverj' charge, the tion of the problem as to Avhat is the loss to it would be trifling and incon- duty of the company than to hold that siderable when compared with the pos- it may stop the message half way up- sible loss and inconvenience to the pub- on its course, and tlius really render lie and patrons who have relied in to the sender no service, after receiv- jjood faith upon their delivery of the ing from him what both thought to be message:" West. U. Tel. Co. v. the full price therefor. We apprehend :^[oore, 12 Ind. App. 13G, 54 Am. St. that, if such a course were followed. Rep. 519. there would be few instances where =« Uost. V. T.l. Co. v. McGuire, 104 the sendee would refuse to receive the Ind. l.iO. ."i4 .\m. Hop. 200. 2 X. E. message, and pay the delivery charge. 201. if proper. Hewlett V. West. V. Tel. Co.. 2* If he did, a notiticalion to the send- Vvd. ISl. 330 TELEGRAPH AND TELEPHONE COIMPANIES, [^ 343 ces, which acts are made known to the company's operator. Is it then presumed that these regulations, under such circumstances, would be reasonable? Most assuredly they would not. In the first instance, it would be an act of courtesy which the company would owe its pat- ron ; in the second, it would be something in the nature of an act of charity, which the company, however being a person only in the con- templation of law, owes to the poor and wayfaring ; and, in either in- stance, the operator should not refuse the request of such persona. § 344. May waive prepayment. While a company may enforce the rule prescribing a prepayment of the charges, yet if it accepts a message without a prepayment, and without notifying the sender of such rule, it is, nevertheless, under obligations to the former to transmit and deliver the message; and on a failure so to do, the company cannot use this as a defense in an action against it for a negligent transmission.'*^ And should a com- pany accept a message for transmission with the understanding that the charges would be afterwards paid, it is compelled to send the mes- sage, notwithstanding the fact that it has a nile prescribing a pre- payment of the charges, and one which the operator could not in any- wise disregard.*^ The court held, in a case in which the sender was an employee of the company, that it was duty bound to transmit his message and was liable for a failure to so do, even though the com- pany offered to show that the service of the company was gratuit- ously tendered.*^ The ground on which these rights are based is, that it has waived all rights it may have had. § 345. Regulation of office hours. Telegraph companies have the right to make reasonable regulations as to the time during w^hich their offices shall be open for the dispatch *« West. U. Tel. Co. v. Cunningham, Eep. 851. See, also, Glovis v. Rhode 90 Ala. 314, 14 So. 579. Island Hospital, 12 R. I. 411, 34 Am. "West. U. Tel. Co. v. Snodgrass,, 94 Rep. 675; Gray v. Merrian, 148 111. Tex. 284, 60 S. W. 308, 86 Am. St. 179, 35 N. E. 810, 39 Am. St. Rep. 172, Rep. 851. 32 L. R. A. 769n; Hiberiva Bldg. Assn. "West. U. Tel. Co. v. Snodgrass, 94 v McGrath, 154 Pa. St. 296, 26 Tex. 284, 60 S. W. 308, 86 Am. St. All. 377, 35 Am. St. Rep. 828. § 345] LIABILITIES RULES AND REGULATIONS. 331 of business.^^ As a general thing, such rule will Ix- as convenient and beneficial to the public as to the companies. While it might in- commode some persons, at some particular time, to enforce such a reg- ulation, yet as a general convenience to the public it would be bet- ter for the rule to be imposed, since not to do so would necessitate the company increasing its working force, and thereby increase the ex- i:)enses for carrying on the business — which would have to be borne indirectly by the public. As was ably said on this subject: "It may be to the interest of some individual, upon a particular occasion, or even at all times, that every oflfice of a telegraph company should l3e kept open at all hours, and that the working force should be sufficient to receive and deliver a dispatch without a moment's delay. So, also, it may be to the interest of a very few that an office should be kept at some point on the line where an office could not be maintained in any way without a loss to the company. If in the first instance the com- pany should be required to keep the necessary, servants to keep its business going at all hours, it would result in the necessity of closing many offices or in the imposition of additional charges upon its cus- tomers in general, in order to recoup the loss incident to their being maintained. So, on the other hand, if they should be required to keep offices wherever it might result to the convenience of a few per- sons, additional burdens upon the general public would in like man- ner result."^'* It being conceded that these companies may enforce these regulations, they will not be liable for any injury caused by a failure to deliver a message received by their operators at a time when the office at the other end of the line is closed ; but if this latter « United States.— Given v. West. U. Rhode Island. — Sweet v. Postal Tel., Tel. Co., 24 Fed; 119. etc., Co., 22 R. I. 344, 47 Atl. 881. Georgia.— West. U. Tel. Co. v. Tea?as.— West. U. Tel. Co. v. Neel, Georgia Cotton Co., 94 Ga. 444, 21 S. 86 Tex. 3G8, 25 S. W. 15, 40 Am. St. E. 835; Boteman v. West. U. Tel. Co., Rep. 847; West. U. Tel. Co. v. Win- 97 Ga. 338, 22 S. E. 920. gate, 6 Tex. Civ. App. 394; West. U. /ndiana.— West. U. Tel. Co. v. Hard- Tel. Co. v. Gibson, 53 S. W. 712; Wo- ing, 103 Ind. 505, 3 N. E. 172. mack v. West. U. Td. Co., 58 Tex. Kentucky.— West. U. Tel. Co. v. Van 17G, 44 Am. Rep. 614. Cleave, 107 Ky. 464, 54 S. W. 827, 92 West Virginia.— 'Di\\i> v. West. U. Am. St. Rep. 366. Tel. Co., 46 W. Va. 48. Maryland.— Berney v. New York, '< West. U. Tel. Co. v. Neel, 86 Tex. etc., Tel. Co., 18 Md. 341, 81 Am. Dec. 3GS, 40 Am. St. Rep. 847. 607. 332 TELEGRAPH AND TELEPHONE COMPANIES. \_^ 345 office should receive the message after the closing hours, and when the messengers have retired from services, the company could not set this regiilation up as a defense to an action brought against it for a fail- ure to deliver, if the message showed on its face the necessity of an immediate delivery. Thus, Avhere a message is received after office hours, requesting the sendee to meet a corpse at the place to which it is to be shipped and at the place to which the message is addressed at a time prior to the opening of the latter office, it is the duty of the company to deliver the message.^ ^ § 346. Same continued — statutory penalty for delay — hours not the same. In some states there are statutes which impose a penalty on these companies for a failure to promptly transmit and deliver a message, but it is understood that this penalty cannot be enforced unless the message is delivered to the company during office hours; and this means the office hours at each end of the line, provided they are reas- onable. It may be, therefore, inferred from this statement that the office hours of all the company's offices are not the same, and it is this fact which we intend to impart. If it were required that the office hours should be the same, this of itself would destroy the fun- damental reason for the enforcement of such a rule; since the busi- ness of some of the offices is much greater than that of others, and it would, therefore, be necessary, under such a condition of affairs, for these particular offices to be kept open longer than others. Most of- ten, in cities, it is necessary that they be required to be kept open all the time. So, to require all of the offices to have the same hours would, as the reader will clearly see, destroy the reasonableness of the rule.^^ § 347. Reasonableness of the rule. The reasonableness of this regulation with respect to any particular office, depends largely upon the locality of the office and the amount «West. U. Tel. Co. v. Broesehe, 72 ^«W(st. U. Tel. Co. v. Harding, 10 Tex. 654, 10 S. W. 734, 13 Am. St. Am. & Eng. Corp. Cas. 617. Rep. 843. <^ 348] LIAI'.ILITIKS KULES AND 1U:(;ULAT10NS. 333 of business douf ;ii tluiL phicc''' Ten hours a day has been hehi to be a reasonable time (luiini: which to keep the office open in a town of onlv a few thousand people ;'*'^ and when tlie l)usiness of a town is not sutticientK' lariic 1o justify the eniploynient of a special messenger, a regulation that telciiranis received after seven o'clock in the even- ing will not be (hdivered niilil llic next nioruiiiu, is reasonable."*'' The burden is on the company to show that the office hours are reasona- ble f^ and while it has been held that the reasonableness of the time was a question for the court, yet, the sounder holding is that it is a mixed question of law and fact.'^ The time, where there has been no definite hours fixed, may l)e made with reference to the quantity of business of that particular office f^ and it is a question for the jury as to what the office hours were. So evidence is admissible to show \vh;it hours luid usually been observed at the office in question.^^ § 348. Same continued — waiver of regulations. While a telegraidi company may fLx its office hours, and is not lia- ble for a failure to deliver a message which has been received after this time, yet if it continues to hold open for business after the usual time for closing, it cannot set' this up as a defense to an action of neg- ligence claimed to have been connnitted in the transmission and de- livery of a message. A general principle of the law of agency is, that the principal is liable for all acts of the agent done within the apparent scope of his duties, provided, the party injured by such act has no knowledge of the agent's duties. It is within the appar- ent scope of the operator's duties to extend the hours fixed for his ^'Tel. Co. V. Cridor. 107 Ky. 600, 54 \V. 17. 28 Ky. L. lUj). 17.')S; West. U. S. W. 963; West. T. Tel. Cn. v. Bry- Tel. Co. v. Sternbeijien. 107 Ky. 469, son, 25 Tex. Civ. App. 74, 61 S. W. 54 S. W. 829; West. U. Tel. Co. v. 548: West. II. Tel. Co. v. Rawls, 62 Crider, 107 Ky. 600, 54 S. W. 963. S. W. 136; Brown v. West. U. Tel. =^ West. V. Tel. Co. v. Luck. 40 S. Co., 6 Utali 2 111, 21 l»ac. 988; Davis ^^'. 753. V. West. U. Tel. Co., 46 W. Va. 48, '» See page 245. 32 S. E. 1026; Hiemann v. West. U. *= West. U. Tel. Co. v. Van Cleave. Tel. Co., 57 Wis. 562, 17 N. W. 401. 107 Ky. 464. .i4 S. W. S27. 92 Am. *»West. L'. Tel. Co. v. Gibson, 53 St. Rep. 366. S. W. 712. =^MVest. I'. Tel. Co. v. Bryson. 25 « Davis v. West. C. Tel. Co., (W, S. Tex. Civ. App. 74, 61 S. W. 548. <.33-i TELl'XUiAl'lI AJN'D TELEPHONE COMI'AXIES. \_^ 348 office ; and any one doing business with the agent with the belief that he is acting ^vithin his apparent authority, may hold the company liable for any injury arising out of such act.^'* Thus, it is within the apparent scope of the agent's authority to undertake the delivery of a message after office hours ; and if he does so, he is bound to ex- ercise due diligence to make a prompt delivery.^ ^ These regulations are not waived where the operator in accepting a message, expressly informs the sender that he does not know of the office hours of the of- fice at the other end of the line, but will make an effort to deliver; such an acceptance does not amount to a special undertaking to trans- mit without reference to office hours prevailing at the latter office.^® So, a mere agreement of the agent to use his best efforts to effect an immediate transmission wdll not render the company liable where its receiving office is closed pursuant to established office hours.^^ The failure of the operator to observe the office hours, when habitual, may be shown in evidence as indicating that no rule on the subject pre- vailed or was enforced ; but proof merely of an occasional transmis- sion or delivery after the office hours will not be sufficient to establish a waiver of the regulations.^^ § 349. Employees need not be informed of other office hours. It is not the duty of the operators at any receiving office to know the hours of any other office of the company.^^ The immense number "Dowdy V. West. U. Tel. Co., 124 =' West. U. Tel. Co. v. Crider, 107 N. C. 522, 32 S. E. 802; West. U. Ky. 600, 54 S. W. 963; West. U. Tel. Tel. Co. V. Bryson, 25 Tex. Civ. App. Co. v. McConnico, 27 Tex. Civ. App. 74, 65 S. W. 548; West. U. Tel. Co. 610, 66 S. W. 592. V. Pearce, 70 S. W. 361. ^' Given v. West. U. Tel. Co., 24 =3McPeek v. West. U. Tel. Co., 107 Fed. 119; West. U. Tel. Co. v. Hard- Iowa 356, 70 Am. St. Rep. 205, 43 L. ii-.g, 103 Ind. 505, 3 N. E. 172; Sweet R. A. 214, 78 N. W. 63. v. Postal, etc., Tel. Co., 22 R. I. 344, =*'= Dowdy V. West. U. Tel. Co., 124 47 Atl. 881; West. U. Tel. Co. v. Neel, X. C. 522, 32 S. E. 802; West. U. 86 Tex. 368, 25 S. W. 15, 40 Am. St. Tel. Co. V. Biyson, 25 Tex. Civ. App. Rep. 847; West. U. Tel. Co. v. Mc- 74, 65 S. W. 548; West. U. Tel. Co. Connico, 27 Tex. Civ. App. 610, 66 S. v. Pearce, 70 S. W. 361. W. 592; Stevenson v. Montreal Tel. "McPeek v. West. U. Tel. Co., 107 Co., 16 N. C. Q. B. 559; Thompson v. Iowa 356, 70 Am. St. Rep. 205, 43 L. West. XT. To). Co., 32 Mo. App. 197. R. A. 214, 78 N. W. 63. <§, 350] LIABILITIES KULES AAD KEGULATIOiNS. 335 of these offices all over the United States, the frequent changes among them, and the time of closing seems to make this onerous and incon- venient to a degree which forbids it to be treated as a duty to its cus- tomers for neglect, and for which it should be held liable in damages. Furthermore, there is no more obligation to do this in regard to offices in the same state than in those four thousand miles away ; since the communication is between them all and of equal importance.^'' And where the operator has habitually kept the office open, after the estab- lished hours, this will not deprive the company of the benefit of the regulation.^ ^ It has been held, however, that if the message has been accepted by the company at a time when the office at the other end w^as closed, it would nevertheless be liable for a failure to transmit and deliver same f^ but this was a case where the message showed on its face the importance of an immediate delivery. § 350. Office hours as affects company's duty — night message. Where a telegraph company has fixed certain hours within which all business transactions should be consummated, it is under no obli- gation to receive, for transmission, any message outside of such office hours; but if it should receive a message, at a time when the office at the other end of the line was closed, it may transmit the message within a reasonable time after the opening of the latter office.^^ Such state of facts very often happens w^here the message is received by the company after the terminal office has closed for the night, and it is invariably held that the message may be transmitted within a rea- sonable time after the office has opened on the following morning. If, however, the office at the other end of the line is only open for the receiving of messages, and the general messenger boys have retired from service, the company will, nevertheless, be under obligations to deliver the message, if the sendee prepays extra charges for the deliv- ery of a night message. It is very often the case that the sender pays °» Given v. West. U. Tel. Co., 24 U. Tel. Co. v. Bnmer. 1!1 S. W. (Tex.) Fed. 119. M9- '^ West. U. Tel. Co. v.' Georgia Cot- "' West. U. Tel. Co. v. Neel, 8G Tex. ton Co., 94 Ga. 444, 21 S. E. 835. r)G8, 25 S. W. 15, 40 Am. St. Rep. •^'West. U. Tel. Co. v. Broesche, 72 847; West. U. Tel. Co. v. Gibson, 5:i I'ex. 654, 13 Am. St. Txop. S43 ; West. S. W. (Tex.) 712. o36 TELEGRAril AXD TELEPHONE COMPANIES. [<§> 350 an extra oliarge to have the message delivered after the offices have closed, and when the company accepts the message with snch ah nn- derstanding, it is dnty bound to make diligent and prompt delivery.'^* But a mere attempt to make immediate deliverv, where there is no duty to deliver the next morning, will not render the company liable for a failnre to deliver ;''■'• and a verbal agTeement between the agent and the sender that the message need not be delivercMJ at night, is binding. '■'' Where a message, summoning a physician, has been re- ceived after the close of office hours the physical sufferings endured by the plaintiff during that time cannot be considered in determining the amount of damages to be awarded, even though the company negli- gently delays delivering the message after the office opened on the fol- lowing morning.®^ § 351. Knowledge of sender as to office hours. These companies, having the right to adopt and enforce regulations respecting office hours, may bind all who apply to them for service, even though they may not have knowledge of the office hours of the company. It is the duty of the sender, when he delivers a message to the company at an unusual hour, to inquire as to whether or not the message can then be sent; and on failure to do so, if the message is delayed, on the account of its having been received after the closing hours, the company will not be liable for any injury arising thereby.^^ It has been held, however, that the sender is not bound if he had no knowledge of this fact,"'' yet we think that this is not sound doctrine. § 352. Telephone companies — enforcement of tolls. Telephone companies have the same right to adopt, prescribe and enforce all reasonable regulations for the convenience of their busi- ness, as telegraph companies; and that which has already been said of •^ West. U. Tol. Co. V. IVrry, .30 Tex. ™V\est. L. Tel. Co. v. Wingate, G Civ. App. 243, 70 S. W. 4.39; West. U. Tex. Civ. App. .394, 2.1 S. W. 439. Tel. Co. v. Cavin, 30 Tex. Civ. App. "'West. U. Tel. Co. v. Merrill, 22 S. 152; West. U. Tel. Co. v. Hill, 26 S. W. 826: West. U. Tel. Co. v. Rosen- W. 2.52. trelev, 80 Tex. 406, 16 S. W. 25. «West. V. Tel. Co. v. IJnwls, 62 S. "» See note 59. W. 136. ""See note 62. T^ 352] LIABILITIES RULES AND REGULATIONS. 337 certain parlicular regulations of the latter, is applicable to these companies. Thus, they may have reasonable office hours and are not under obligation to render service to any one outside of such hours. There is this distinction, however, between these companies in this respect : the party calling docs not have to pay the toll until the coni- aiunicant has been summoned to the telephone ; and, if he cannot be found, the former knows immediately that he cannot communicate with him. It is no duty of the company to make an effort to get the party called to the telephone after the office at his end of the line has closed. They may enforce the payment of the rental; and on the failure of the subscriber to make such payment, his telephone may be removed from his premises, after giving timely notice to that effect.'^^ The subscriber,it seems, cannot object to this act of the com- pany on the ground that it has not given efficient service,'^ ^ or that the company is indebted to him."^- They may require the party call- ing, to go to the exchange office, and prepay the toll or that he deposit a sufficient amount at the toll station before any services shall be ren- dered. We think that they could not enforce a regulation whereby the subscriber is required to contract for a telephone for one year, be- fore one is placed on his premises ; but that they are under obligations to give him the same service, as any other subscriber, even though he may not desire the service so long. It is a reasonable rule of these companies that so much extra toll shall be paid after the conversation has extended beyond the regular time allowed for conversations ; and they may limit the length of time of conversation over long distance telephones. As these companies are intended for general use, by per- sons of all classes, and for both sexes, those who use them may be re- quired to conduct their conversation in a becoming manner, free from obscenity or profanity ; and for a violation of this requirement, may be denied the further use of the telephone."-^ Xo regulation will be tolerated which prevents the public from having a fair and reasonable use of its telephones and exchanges, or denies to any one the rights secured to him by statute, or requires him to conduct his business "•Malochce v. Great Southern, etc., "^ Rushville Co-operative Tel. Co. v. Tel. Co., 22 So. (La.) 922. Irvin, 27 Ind. App. 62. ■' Cumberland Tel. Co. v. Baker, 37 " Pugh v. City & S. Tel. Co., 9 CtMi. So. (Miss.) 1012. . L. B. 104, 27 Alb. L. J. 162. T. & T.— 22 33S TELEGRAPH AND TELEPHONE COMPANIES. [^ 352 with particular persons or agencies. Thus, a regulation is unreason- able and invalid if it prohibits subscribers from calling messengers otherwise than through the central office.^'* § 353. May waive regulations. Rules and regulations of these companies which are merely for their convenience may be waived,"^^ either expressly or by implica- tion, and whether or not they have been waived is a mixed question of law and fact. It may be inferred that they have been waived, if the company has failed repeatedly to enforce such a rule."^"^ Thus, as has been heretofore said, they may enforce a rule prescribing reason- able office hours, yet if they accept messages for transmission and delivery after the closing of the office, it will be presumed that they have waived the regulation. They may require all messages tendered them to be in writing, but if they receive such orally they cannot set up this rule as a defense to an action brought for negligently trans- mitting or delivering a message. As, where the local office makes a practice of receiving for transmission messages, telephoned to it, and it does not appear that the company had forbidden the practice, it seems that the operator, in writing out the message, must be deemed the company's agent to render it liable for an error made by him in transcribing f'^ or, if the operator has been in the habit of receiving messages, verbally through the messenger; or, messages have been conveyed to him by means of a speaking tube, it will be presumed that the company has waived the regulation. "^^ So, also, if the com- pany has failed to require prepayment of the charges ; or, has defer- red the collection of same until some subsequent time ; or, if the extra charge, which may be exacted of the sender for a delivery beyond the free delivery limits, has not been deposited, it will have waived its rights to enforce the regulation; and cannot, therefore, set up the "People V. Hudson River Tel. Co., "West. U. Tel. Co. v. Stevenson, 19 Abb. N. C. 466, 10 N. Y. Supt. Ct. cited in note 75. 282. "West. U. Tel. Co. v. Todd, 22 Ind. '=West. U. Tel. Co. v. Stevenson, App. 701. 128 Pa. St. 442, 18 Atl. 441, 5 L. R. '»West. U. Tel. Co. v. Stevenson, A. 515, 15 Am. St. Rep. 687; People cited in note 75. V. West. U. Tel. Co., 166 111. 15, 46 Atl. 731, 36 L. R. A. 637. § 353] LIABILITIES KULES AND llEGULATIONS. 339 fact of a non-compliance with the rule, as a defense to an action brought against it.'° These companies may have the right to refuse certain messages tendered them for transmission, but if the operator should accept such a message, knowing that the company would re- fuse such, and negligently transmits or delivers it, whereby damages have been incurred, the company nevertheless will be liable.**' '•West. U. Tel. Co. v. Yopst, 118 22 Ind. 701; Garland v. West. U. Tel. Iiid. 248, 20 N. E. 222, 3 L. R. A. Co., 118 Mich. 369, 74 N. W. 762, 74 224n. Am. St. Rep. 394, 43 L. R. A. 280; ""Beasley v. West. U. Tel. Co., 39 Texas Tel. Co. v. Seiders, 9 Tex. Civ. Fed. 181; West. U. Tel. Co. v. Todd, App. 431, 29 S. W. 258. CHAPTER XVI. DUTIES UNDER THE COMMON LAW. 354. In general. 355. Act of God — not liable for — contract: 356. Same continued — express contract. 357. Same continued — burden of proof. 358. Public enemy. 359. Same continued. 360. Same continued — mobs, strikes, etc. 361. Same continued — strikes, not liable — must supply places. 362. Same continued — in cases of express contracts. 363. Connecting lines. 364. Negligence of the sender or sendee. 365. Proximate cause — burden of proof. § 354. In general. Telegraph companies are not, strictly speaking, common carriers; and are not, therefore, held to such strict accountability as ar-e the latter. The public, however, is interested in their business, in that they are exercising a public function and must, to that extent, as has been seen, manage and control their business affairs. The sources from which the public has obtained the power to exercise this con- trol are now derived from statutes and the common law, and to these the reader must resort in order to ascertain such powers. Common carriers, under the common law, were held to the most strict account- ability for their seiwices to the public, and the question of negligence did not enter into consideration of the courts in determining a loss incurred. In other Avords, they were held strictly liable as insurers, and were responsible for all losses incurred, except such as may hare been caused by the act of God or the public enemy. On account of these companies enlarging their lines of business and thereby holding themselves out to the public as willing to transport many and varied things which were not contemplated as subjects of transportation at the time the business was first begun — and many of which were of a peculiar perishable nature and otherAvise more subject to loss or in- jury — the common-law rule has been somewhat relaxed and they are (340) (^ 355] DUTIES UNDKll COMMON LAW. uil not now held liable i"or every loss as they formerly were. Telegraph companies are not insurers, but in every other respect they are held to the same liability for losses and injuries, as are common carriers. They may, however, as will be seen hereafter, limit their common- law liabilities ; and in most states, there are statutes which, more or less, give them the power to exercise this right. S 355. Act of God — not liable for — contract. As we have seen, the common law holds that telegraph companies are exonerated in those cases where the act of God has been the prox- imate cause of the loss or injury to the business intrusted to their care — and in this respect there is no diversity of opinion — but what are such causes as may be considered the act of God, and such as will be sufficient to exonerate them for losses resulting therefrom, is not clearly defined by the courts ; and this fact has brought about, to a certain extent, a diversity of opinion. It may be safely said, however, that if there is intervening any human agency which contributes in any manner, to the production of the loss or injury, and without Avhich the company would be exonerated, on the ground that the loss was caused by the act of God, it will be liable.^ Thus, if the condi- tion of the company's lines or instruments are such that they cannot be used — and such conditions were originally caused by the act of God — the eoiii])iniy will, nevertheless, be liable for any loss thereby incurred, if it is negligent, in anywise, in making a reasonable effort to repair, as speedily as possible, the defects. It is fairly well settled, that these companies will not be liable for losses caused by extraordi- nary tempest, storms or tlic like, unless their own negligence contrib- uted to llio ])nHluc(ion <'10. 346 TEIiEGEAPH AND TELEPHONE COMPANIES. [§ 359 ment — imder Avhicli these business enterprises assumed public du- ties — in protecting them in their inheritable rights and guaranteeing them a free exercise of their business, unmolested by any act which should be protected by the government. As the government has failed to carry out its part of the agreement, the other contracting party, as in all contracts, cannot be forced to continue operating un- der the same agreement; and any loss or injury which has been brought about by the party at fault, cannot afterwards be taken ad- vantage of by this party or any of his agencies. It is their duty, however, when the business of any of these corporations is being in- terfered with by the public enemy, to use due care and diligence to prevent any loss which might likely be caused by the latter ; and, so where they are derelict in this respect, or where their own negligent acts have intervened and contributed to the production of the loss, they will not be exonerated for such acts, since their negligence will be deemed the proximate cause of the loss. They can never be re- lieved from liability for the acts of the public enemy until such fact is proven affirmatively by them to be the proximate cause of the loss.^® IsTot only is the burden of proof cast upon these companies, but they must further show by competent and sufficient evidence that the loss was not the result of any negligence or want of care on their part. It may seem strange, from what has been said with respect to the government failing to perform its part of the contract in protect- ing these corporations in their business, that there should be any duty on the part of the latter to exercise care in attempting to avoid losses arising from acts of the public enemy. But it must be understood that, while these corporations stand in a most peculiar relation to- ward the government, in that they do not have, strictly speaking, the same senses which a real human possesses, and that their privileges, duties and exemptions are different, in some respects, to a private citizen, yet tHey are considered, under the rules of law, to be classed and comprehended under the term "citizen." It is the duty of every citizen — whether he be but a common layman, toiling through the chilly climes of the ISTorth or the sultry suns of the South, in the faithful performance of his manual services; or, whether he be a bonded officer in the discharge of his official duties — to protect the '«Halliclav v. Kennard. 12 Wall. 254. § 360] DUTIES UNDER COMMON LAW. 347 government in its laws and in its property. To this extent, as all other citizens, these corporations must extend a willing hand. And whenever it is possible for them, by exercising due and reasonable care, to protect any property of the government, or any citizen thereof, from the depredation or destruction of the public enemy, it most assuredly is part of their duty to do so. § 360. Same continued — mobs, strikes, etc. Under the ancient rule, carriers were not exonerated for losses caused by the acts of mobs, or other riotous persons; but the strin- gency of this rule has been somewhat relaxed by the more modern au- thorities. They are still held liable for all losses caused by such acts, but are not liable for loss in the transportation of goods by any de- lay caused thereby. There is a difference, however, in the applica- tion of this rule to carriers and to telegraph and telephone com- panies. As a general rule, the latter companies are not liable for losses arising from acts of mobs and other riotous persons. The acts of the mob stand, with respect to these companies, in almost the same categoiy as those of the public enemy. The different means and in- strumentalities through which they accomplish their respective cor- porate purposes bring about the difference in the application of this rule. It is never presumed that mobs intend to take possession of goods and convert them to their o^^^l use : and, the tangible property to such, being in the custody of the carriers, they are more able to protect and deliver them safely to the consignee; and, as has been said, they are not liable for losses caused by such delay. On the other hand, the main and principal object of mobs and other riotous persons, who interfere with the business of telegraph companies, is to prevent and obstruct the transmission of news; especially, until they shall have accomplished some particular purpose. As has often been said, they are never held liable as insurers, unless an express agreement has been entered into to that effect. And for the reason that they are not in possession of the tangible property of the mes- sage in transit, they do not have the same opportunity to protect it as the carrier has his goods. It is the duty, however, of these com- panies, where they have been thus interfered with, to make a reasou- .iblc effort to transmit tlie toleii'rani bv other lines or bv other means; o4S TELEGRAPH AXD TELEPIIOXE CO-MPAXIES. [§ 360 and on a failure to do so, they ^Yill be keld lial)le for all losses snf- fered. § 361. Same continued — strikes, not liable — must supply places. The same rule applies, where the mob is composed of employees of the company who are on a strike. One of the most puzzling questions which confront these large corporations and other public institutions in this day and time is, How they may be able to manage and control their employees to their best interest, and at the same time faithfully discharge the duties the^^ owe to the public? The term "strike" is applied commonly to a combined eifort on the part of a body of work- men employed by the same master to enforce a demand for higher wages, shorter hours, or some other concession, by stopping work in a body at a prearranged time, and refusing themselves to resume work, or often allowing other to tender their services to assist in car- rying on such work, until the demanded concession shall have been granted." There is a distinction to be drawn between the liabilities of common carriers and telegraph companies, for the acts of their re- spective employees, w^hose object is to accomplish some of the above mentioned concessions. Common carriers, being insurers, are liable- for all losses caused by the acts of their employees while on a strike ; provided, the same has not become such as would be considered a crime or an unlaw'ful act of the employees. For a loss resulting solely from lawless violence of men not in the employment of the company, the latter will not be responsible, even though the men, whose violence caused the loss, had but a short time before been em- ployed by the company. ■''^ If they have employed other competent men within a reasonable time to supply the places of the striking em- ployees, but these have been prevented from accepting employment by the violent acts of the latter, they will not be liable for any loss resulting thereby.^'' Telegraph companies are not insurers and are not, therefore, liable for losses caused by the acts of their employees while on a strike. If, however, the strike has been caused by any '^Anderson's L. Diet.; Black's L. '' Pittsburf,', ete., R. Co. v. Ilozen, 84 Diet.; Bouvier's L. Diet.; Delaware, 111. .30. etc., Pv. Co. V. Bowers, .58 X. Y. 582. '» Id. > 3G3] DUTIES UNDER COMMOX LAW. 340 fault of the company, in unreasonably rctlncing the wages of the em- ployees, or increasing the time of service unreasonably long, or in otherwise refusing to grant reasonable concessions to them, it will be liable. TelegTaph companies must exercise reasonaljle diligence in making an effort to supply the places of the employees with compe- tent men; and on a failure so to do, tluy will be liable for all losses resulting therefrom. If the strike is among the employees discharg- ing a certain particular line of business, and the same can be per- formed by those who have not made a strike, it is the duty of the company to see that the latter discharges this duty. § 362. Same continued — in cases of express contracts. Where a t('k'gra])h company makes an express contract with the sender, wherein it undertakes without limitation or qualification to safely transmit and (Icliver a message within a time definitely fixed by contract, the fact that a mob, or the employees while on a strike, prevents the company from performing the contract, will not exon- erate it from liability for a loss suffered during the transmission of the message. It is necessary in these contracts, as in those expressly made, wherein these companies enlarge their common-law liability with respect to losses caused by the act of God or the public enemy, that the extra risk or hazard assumed must be very explicitly given ; for if there is any doubt or ambiguity on the face of the contract, it will be construed most forcibly in favor of the company. So, it will be very clearly seen that there is a marked distinction between cases where there is no express contract to transmit and deliver within a limited time and cases where there is such an express contract. An express contract, binding a telegraph company to transmit a message irrespective of its being interfered with by any act of God or the public enemy, will not bind the com|)aiiy for losses caused by the act of a mob or that of a strike. § 363. Connecting lines. As has been seen, a telegraph company may enter into an express contract to transmit and deliver safely certain messages intrusted to it, irrespective of the liabilities from which it may have been exon- 350 TELEGRAPH AND TELEPHONE COMPANIES. [§ 363 erated under the common law. In other words, it may make an ex- press contract to transmit a message correctly or be liable for any losses incurred by a failure to do so, although such loss may be the result of an act of God or the public enemy, or acts of mobs or strikes. But where such contract is entered into between the sender and a telegraph company, it will not bind a connecting company over whose lines it is necessary to transmit the message, even though it is the custom to transmit messages over these connecting lines.^^ If, however, there is an express agreement with the connecting com- pany to assume all risk or undertaking of the initial lines ; or, if they are carrying on a partnership business; or, if they are leased or owned by the initial company, they will be bound by the contracts of the former. It seems that where they are bound only by an express agreement, this should be conditional on the connecting company ac- cepting the message. As was said, the companies could, under cer- tain circumstances, refuse to enter into a contract to this effect, and the same right should be extended to a connecting company ; because the conditions there stated, which would give the initial company the right to refuse to enter into a contract of this nature, might not ex- ist with respect to this company at the time the message was tendered to it, but would with the connecting line. Of course the initial com- pany would, nevertheless, be liable. Where there is such an extraor- dinary risk assumed, and it is necessary for the message to be trans- mitted over connecting lines to reach the destination, the initial com- pany should ascertain as to whether the connecting company would accept the message, before the former accepts it. When this is done, and all the connecting lines agree to accept the message, under the contract of the initial company, they will then be liable. § 364. Negligence of the sender or sendee. Another ground allowed, under the common law, for exonerating a telegraph company for losses caused in a failure to correctly transmit and deliver a message, is by acts of either the sender or sendee. There is no consideration of policy which demands that these com- panies should be held to account for an injury occasioned by the =» Smith V. West. U. Tel. Co., 84 Tex. 359, 31 Am. St. Rep. 59, 19 S. W. 441. (^ 365] DUTIES UNDER COMMON LAW. 351 sender or sendee's own act; and it is immaterial whether or not such act of either of these parties, causing the loss, amounts to negli- gence.2^ Thus, if the sender fails to address the message correctly; or, where he fails to make prepayment of charges on demand; or, where the operator, who is the sender, fails to correctly transmit and loss is incurred, the company will not be liable. When the addressee misconstrues an ambiguous telegram ; or, when he refuses to pay the extra charges for delivery beyond the free delivery limit, his acts will exonerate the company for any loss caused thereby. § 365. Proximate cause — burden of proof. When a telegraph company relies on the defense that the cause of the loss was the act of a mob or that of a strike of its own employees, it must be shown that this act was the proximate cause of the loss, since if any wrong or negligence of the company contributed to the act, the company's act will be presumed to be the proximate cause of the loss; and the burden of proof is cast upon it to show that the proximate cause of the loss was the act of the mob or the strike, and not any negligence on its part. But in case of any wrong or negli- gence on the part of either the sender or addressee, contributing to the act which produced the loss, the rule is different. There, the in- jured party must show that the loss or injury was not caused by any injury on his part, but that the proximate cause of the injury was that of the company. ^Hart V. Chicago, etc., R. Co., 69 Crawenshield, 3 Cliff. (U. S.) 184, 5 Iowa 485, 29 N. W. 597; Choate v. Fed. Cas. No. 2691. CHAPTER XVII. LIMITING COMMON LAW LIABILITIES. 366. Stipulation in contract of sending. 367. Negligence — cannot contract against — in most states. 368. Applicable to statutory penalty. 369. May contract against negligence in some states. 370. Prohibited by statutes in some states. 371. Gross negligence. 372. Gross negligence — what constitutes. 373. Ignorance of operator of the locality of the place. 374. Conflict of laws. 375. Stipulation for repeating messages. 376. Same continued — validity of such a stipulation. 377. Same continued — further 'reasons for their own protection. 378. Same continued— extra charge — no increase of duty. 379. Same continued — delay in delivery — non-delivery. 380. Same continued— not a contract— compared to a bill of lad- ing. 381. Same continued — contract — no consideration. 382. Same continued — duress. 383. When requested to be repeated — question of fact. 384. Same continued — binding on sender only. 385. Times within which claims are to be presented. 386. Same continued — reasons for rule. 387. Same continued — statutory penalty— applicable. 388. Same continued— not to be prosecuted by the public. 389. Stipulation held void as against public policy. 390. When limitation begins to run. 391. Same continued — delay in receiving messages — does not modify stipulation. 392. Same continued— unaware of wrong — not binding. 393. Compliance with stipulation — what constitutes. 394. Same continued — waiver of written claim. 395. Same continued — nature of the claim. 396. Must be presented to proper officer. 397. Commencement of suit^whether sufficient notice. 398. Contrary holding — better view. 399. Limiting liability to specific amount. 400. Same continued— nature of— liquidated damages. 401. Same continued^insured — same rule. ■ 402. Night messages — time to be delivered. 403. Unavoidable interruption — special contract. 404. Over connecting lines — stipulation — exemptions. 405. Stipulation against cipher messages— valid. (352) <§ 366] COMMON LAW LIABILITIES, 353 40G. Same continued — contrary view. 407. Where and when messages accepted. 408. Delivery to messenger — valid. 409. Waiver of stipulation limiting company's liability. 410. Burden of proof. 411. Proof of assent to stipulation. 412. Contrary holding. 413. Special contracts — not applicable. 414. Small type — not fraud. 415. Assent of addressee. 416. Same continued — illustrations. 417. Same continued — actions in tort. 418. The correct view as considered. 419. Assent — proof of — what amounts to. 420. Stipulation posted in company's office — not binding. 421. Messages written on blanks of another company — binding. 422. Same continued — knowledge of company's stipulations. 423. Messages delivered to company by telephone or verbally. 424. Principal bound by the knowledge of the agent. § 366. Stipulation in contract of sending. Telegrams are invariably written on blanks furnished by telegraph companies, on the backs of which are generally found stipulations exempting them from certain liabilities, and which are apparently agreed to by the sender when he attaches his signature thereto. The question with which the courts have been and are still confronted is, whether such contracts or stipulations are binding, either on the sen- der or on the addressee, or on both ? The courts are not in harmony on this subject. Some hold that some of these stipulations are rea- sonable and binding and others hold that none of them can be en- forced; ^ still others hold that all of them are binding where they are not in conflict with any statute or against public policy. Many states have adopted statutes which provide that these companies may adopt and enforce reasonable rules and regulations for the purpose of car- rying on their business, and thereby relieve themselves from some of their common-law liabilities ; and where statutes have not been enacted to this effect, the courts, in some of those states, have held ^West. U. Tel. Co. v. Reals, 56 Neb. Xeb. 661, 44 N. W. 1064. 26 Am. St. 415, 76 N. W. 903, 71 Am. St. Rep. Rep. 363; West. U. Tel. Co. v, Eii- 682'; Kemp v. West. U. Tel. Co., 28 banks. 100 Ky. 591, 38 S. W. 1068, (iO T & T— 23 '^"'- St. Rep. 361, 36 L. R. A. 711. 354 TELEGRAPH AXD TELEPHONE COMPANIES. [§ 36G that they had the right, without such statutes, to make such rules and regulations. It is held in most, if not in all, of the states that the company may, by a special express contract, limit its common- law liability. There is, however, some conflict among the courts as to how far they may be limited and what is sufficient to constitute a valid special contract. The various phases of these stipulations will be considered in the following sections. § 367. Negligence — cannot contract against — in most states. The general rule, supported by the weight of authority is, that telegraph companies cannot by any kind of a contract exempt them- selves from losses caused by their own negligence or that of their ser- vants.2 The rule rests upon the consideration of public policy and ^ VVillock V. Pennsj^lvania R. Co., 166 Pa. St. 184, 30 Atl. 948, 27 L. R. A. 228; Thomas v. Wabash, etc., R. Co., 63 Fed. 200; Eels v. St. Louis, etc., R. Co., 52 Fed. 903; Mobile, etc., R. Co. V. Houkins, 41 Ala. 486, 94 Am. Dec. 607; Louisville, etc., R. Co. v. Grant, 99 Ala. 325; 13 So. 599; Stand- ard, etc., Co. V. White Lim., etc., Co. 122 Mo. 258, 26 S. W. 704 ; Johnson v. Alabama, etc., R. Co., 69 Miss. 191, 11 So. 104; Squire v. New York, etc., R. Co., 98 Mass. 239, 93 Am. Dec. 182; American U. Tel. Co. v. Dougherty, 89 Ala. 181, 7 So. 433; Stiles v. West. U. Tel. Co. 15 Pac. 712; West. U. Tel. Co. v. Short 53 Ark. 434, 14 S. W. 649; West. U. Tel. Co. V. Graham, 1 Colo. 230, 9 Am. Rep. 136; West. U. Tel. Co. v. Blanch- ard, 68 Ga. 299, 45 Am. Rep. 480. Com- pare West. U. Tel. Co. v. Fontaine, 58 Ga. 433 ; Tyler v. West. U. Tel. Co., 60 111. 421, 14 Am. Rep. 38; West. U. Tel. Co. V. Tyler, 74 111. 168, 24 Am. Rep. 279; West. U. Tel. Co. v. Meek, 49 Ind. 53; West. U. Tel. Co. v. Fen- ton, 52 Ind. 1; West. U. Tel. Co. v. Adams, 87 Ind. 598, 44 Am. Rep. 776; West. U. Tel. Co. v. Meredith, 95 Ind. 93; Central U. Tel. Co. v. Swoveland, 14 Ind. App. 341; Sweetland v. Illi- nois, etc., Tel. Co., 27 Iowa, 433, 1 Am. Rep. 285; Manville v. West. U. Tel. Co., 37 Iowa 214, 18 Am. Rep. 8; Harkness v. West. U. Tel. Co., 73 Iowa, 190, 34 N. W. 811, 5 Am. St. Rep. 762; Camp V. West. U. Tol. Co. 1 Met. (Ky.) 164, 71 Am. Dec. 461; Smith v. West. U. Tel. Co., 83 Ky. 104, 4 Am. St. Rep. 126; LaGrange v. Southwestern Tel. Co., 25 La. Ann. 383 ; Bartlett v. West. U. Tel. Co., 62 Me. 209, 16 Am. Rep. 437 ; Ayer v. West. U. Tel. Co., 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353; West. U. Tel. Co. v. Goodbar, 7 So. (Miss.) 214; Reed v. West. U. Tel. Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, 58 Am. St. Rep. 609, over- ruling Wann v. West. U. Tel. Co., 37 Mo. 472, 90 Am. Dee. 395; Kemp v. West. U.Tel. Co.. 28 Neb. 661, 26 Am. St. Rep. 363. Compare, Becker v. West. U. Tel. Co., 11 Neb. 87, 7 N. W. 868, 38 Am. Rep. 356. Sherrill v. West. U. Tel. Co., 116 N. Car. 655, 21 S. E. 429; Brown v. Postal Tel. Co., HI N. Car. 187; 16 S. E. 172, 17 L. i'v. A. 648, 32 Am. St. Rep. 792; West. <^ 3G8] COM.M X. W. 407. 843; West. I'. Tel. Co. V. Neill, 57 Tex. MVest. V. Tel. Co. v. Ciaham. 1 283. 11 S. W. 783, 44 Am. Rep. 589; Colo. 2.30, Am. Rep. 140. Womack v. West. U. Tel. Co.. 58 Tex. "West. l'. Tel. Co. v. Adams, 87 Ind. 17G, 44 Am. Rep. 614: Wirtz v. West. 508, 44 Am. Rep. 776; West. U. Tel. r. Tel. Co., 7 rtali 44(1. 27 Pae. 172. Co. v. Cobbs. 47 Ark. 334, 1 S. W. ;5 L. K. A. .■)10ii: (;illis v. West. U.Tel. 558, 58 Am. Rep. 756; West. U. Tel. 356 TELEGRAPH AND TELEPHONE COMPANIES. [*§ 369 § 369. May contract against negligence in some states. In those states where the lines are sharply drawn as to their char- acter as common carrier, and where their business is considered as purelj of private concern, it is held that telegraph companies may limit their liability for their own negligence or errors, especially when arising from any cause except willful misconduct or gross neg- ligence ;* but the weight of authority is to the contrary. And, in these states it seems that there is a distinction bet^veen slight or or- dinary negligence and such as amounts to gross negligence, or willful default; and they hold that these companies can only contract against liabilities caused by slight or ordinary negligence ^ and not such as are caused by gross negligence. As was said, "The exemption is not extended to acts or omissions involving gross negligence, but is con- fined to such as are incident to the service, and may occur when there is slight attaching culpability in its officers and employees." "^ It has also been held that these companies could contract against lia- bilities of inadvertence, but not against gross negligence, misconduct or bad faith.^ The rule in 'New York seems to be that while a tele- graph company cannot contract against its own negligence, yet it Co. V. Buchanan, 35 Ind. 429, 9 Am. " Illinois Central R. Co. v. Morrison, Rep. 744; West. U. Tel. Co. v. Young, 19 111. 136; Wabash, etc., R. Co., v. 93 Ind. 118. Brown, 152 111. 484, 39 N. E. 273. * West. U. Tel. Co. v. Carew, 15 ^ Lassiter v. West. U. Tel. Co., 89 N. Mich. 525; Birkett v. West. U. Tel. C. 33G; Pegram v. West. U. Tel. Co., Co., 103 Mich. 361, 50 Am. St. Rep. 97 N. C. 57; Becker v. West. U. Tel. 374, 61 X. W. 645; Redpath v. West. Co., 11 Neb. 87, 7 N. W. 868, 38 Am. U. Tel. Co., 112 Mass. 71, 17 Am. Rep. Rep. 356; Grennell v. West. U, Tel. 69; Wann v. West. U. Tel. Co., 37 Mo. Co., 113 Mass. 299, 18 Am. Rep. 485; 472, 90 Am. Dec. 395; U. S. Tel. Co. Redpath v. West. U. Tel. Co., 112 Mass. V. Gildersieeve, 29 Md. 232, 96 Am. 71, 17 Am. Rep. 69. Dec. 519; Hart v. West. U. Tel. Co., » Wann v. West. U. Tel. Co., 37 Mo. 66 Cal. 579, 6 Pac. 637, 56 Am. Rep. 472, 90 Am. Dec. 395; U. S. Tel. Co. 119. This question, with full citation y. Gildersieeve, 29 Md. 232; 96 Am. of the earlier cases, is fully and learn- Dee. 519; Ilart v. West. U. Tel. edly considered in a note of 71 Am. Co., 66 Cal. 579; 56 Am. Rep. 119; Dec. 463, 466, 467, etc.; West. U. Tel. White v. West. U. Tel. Co., 14 Fed. Co. V. Stevenson, 128 Pa. St. 442, 15 710, 5 McCrary (U. S.) 103; MacAn- Am. St. Rep. 687, 18 Atl. 441; Pearsall jrew v. Electric Tel. Co., 17 C. B. 3, V. West. U. Tel. Co., 124 N. Y. 256, 21 S4 E. C. L. 3. Am. St. Rep. 662, 26 N. E. 534. ^ 370] COMMON LAW LIABILITIES. 357 may against the nodigcnce of its servants in any degree.® And it socms to be the holding in other states that they can relieve them- selves from liability for negligence where the services are done gratui- tously.^'' In those states which hold that these companies may con- tract against liabilities for negligence, the contract under which they claim the exemption must be clear and free from doubt, for the ex- emption will not be granted whoro the language of the contract is am- biguous.^^ § 370. Prohibited by statutes in some states. In some states, in which it may have formerly been the rule that these companies could contract against their own negligence, to some extent at least, the same has been changed either by statute or later decisions. Thus, the rule in Nebraska has been established by a statute which eliminates considerations of degree of negligence in this connection.^- In Georgia it was intimated in one case that these companies might restrict their liability except for gross negligence,^^ but in a later case the rule was announced that they could not con- tract against their negligence in any degree.^"* In Texas it was held that the stipulations of these companies will not extend to injuries caused by the "misconduct, fraud or want of due care on the part of company, its servants or agents." ^^ It is held, however, that this statute does not extend to interstate messages. ^*^ Statutes similar to 'Maynarcl v. Syracuse, etc.. R. Co., 'Mvoiiip v. West. U. Tel. Co., 28 Neb. 71 N. Y. ISO, 27 Am. Rep. 28; Nich- (Uil. olas V. Xew York, etc., R. Co., N. Y. 'MVest. U. Tel. Co. v. Fontaine, 58 370; Smith v. New York, etc., R. Co., Ga. 433. 24 N. Y. 222; Crogin v. Now York, "West. U. Tel. Co. v. Blanchard, 68 etc., R. Co., 51 N. Y. 61, 10 Am. Rep. Ga. 299, 45 Am. Rep. 480. See. also, 559, West. U. Tel. Co. v. Goodbar, 7 So. "Griswold v. New York, etc., R. Co., (Miss.) 214. 53 Conn. 371: Higgins v. New Orleans, 'MVest. U. Tel. Co. v. Neill, .57 Tex. etc., R. Co., 28 La. Ann. 133; Quimby 283, 44 Am. Rep. 589; Womack v. V. Boston, etc., R. Co., 150 Mass. 360, West. U. Tel. Co., 58 Tex. 176, 44 Am. 5 L. R. A. 846; Kinny v. Central R. Rep. 614. Co., 32 N. J. L. 407, 34 N. J. L. 513; '"Missouri Pac. R. Co. v. Sherwood, Annas v. Milwaukee, etc., R. Co., 67 84 Tex. 125, 19 S. W. 455, 17 L. R. A. Wis. 46. 648; iMissouri Pac. R. Co. v. Inter- "Maynard v. Syracuse, etc., R. Co., national, etc., Co., 84 Tex. 140, 19 S. 71 N. Y. 180, 27 Am. Rep. 28. See W. 459. note 7 for other cases. 358 TELEGRAPH AXD TELEPHONE COMPANIES. [^ 370 these have been passed in other states, and in one of these, at least, it was held that such a statute was not repugnant to the federal con- stitution as a regulation of commerce.-''^ § 371. Gross negligence. As has been seen, there seems to be a holding among some of the courts that there are different degrees of negligence, or that there is a difference between negligence and gross negligence, but the weight of authority is that there are no degrees of negligence; and yet, what the term ''gross negligence" means is not to be easily ascertained. There is authority for holding it to be equivalent to fraud or inten- tional wrong. ^^ But a majority of the cases seem to hold it to be a failure to exercise ordinary care. It was said by Baron Rolfe that he could "see no difference between gross negligence and negligence ; that it was the same thing with vituperative epithet." ^^ There is really no intelligible distinction existing between the two words,- '^ but if the act of the company should extend to what might be consid- ered a willful or intentional wrong — if this is meant to be gross neg- ligence — there is a distinction. Telegraph companies which hold themselves out to the public, must exercise the same diligence and care that any pradent and careful person would do under similar circumstances, and whenever they attempt to shield themselves from performing such duties by claiming an exemption therefrom by any contract or regulation entered into by them with their patrons, they then step beyond the bounds of right, justice and good conscience. When they fail to discharge their duty it is negligence, whether it be simplv ordinary or gross negligence.^ ^ § 372. Gross negligence — what constitutes. In those states where it is claimed that there is a distinction be- tween negligence, and gross negligence it seems that it is rather diffi- "Hart V. Chicago, etc., E. Co., G9 ''^ Gill is v. West. U. Tel. Co., Gl Vt. Iowa 485, 29 N. W. 597. 461, 17 All. 736, 4 L. R. A. 611n, 15 'STones on Bailees, 8-46 et seq. Am. St. Rep. 917; Aiken v. West. U. "Wilson V. Brett, 11 M. & W. 113. Tel. Co., 5 S. Car. 358; Beal v. South ^Hinton v. Dibbon, 2 Ad. & El. (U. Devon R. Co., 3 H. & C. 337. S.) 646; Austin v. Manchester R. Co., 11 Eng. L. & Eq. 573. ^ ;j72] common law liabilities. 359 cult for the courts therein to detenuiiie what facts are necessary to constitute gross negligence. It has been held by some authorities that, where a message is improperly transmitted, this is sufficient evi- dence to show gross negligence in the absence of proof showing why such error was made ; but the weight of authority is to the contrary.^^ Thus, where the only evidence of negligence is that the operator sent in the message the word "bain" for ''bail," it was held that there was no proof of gross negligence. ^^ The same rule is true where the word ••fourths" is written instead of '•eighths," in a message from an agent informing his principal of the price of cotton.^^ But to make as many as three eiTors in a message containing only nine simple words, is gross negligence. Thus, a message tendered to be sent contained the following words : "Ship Bones, sulky and traps to Valley Falls, immediately, G. Grail;" and the message received by the addressee read, thus: "Ship Beans, sulky and trap to iSTeosha Falls immed- iately, G. Crawley." Here it was held that the evidence showed gross negligence.-^ In another case it appeared that the message was plainly written out and not to be easily mistaken by anybody with ordinary understanding who should examine it with ordinary care. The operator materially changed the message by transmitting the word, "Salina" for "Salene." There being no exonerating or ex- planatory evidence offered by the company, the court held that it was a case of gross negligence. ^^ It was held gross negligence for the re- ceiving operator, who had been informed that the message contained nine words, to deliver the message with only seven words.-^ In or- der for any court to arrive at an accurate determination as to whether a telegraph company has, in the transmission, committed an error which amounts to gross negligence within the meaning of the rule stated, it is necessary for all the facts and circumstances suiTOunding the particular case to be carefully considered. Because of the fact " Pogram V. West. U. Tel. Co., 97 N. N. C. 334; White v. West. U. Tel C. 57; West. U. Tel. Co. v. Neill, 57 Co., 14 Fed. 710. Tex. 283, 44 Am. Rep. 589; Becker v. "West. U. Tel. Co. v. Crall, 38 Kan West. U.Tel. Co., 11 Neb. 87, 7 N. W. 679, 5 Am. St. Rep. 795, 17 Pac. 309. 868, 38 Am. Rep. 356; Jones v. West. =»West. U. Tel. Co. v. Howell, 3S U. Tel. Co., 18 Fed. 717. Kan. 685, 17 Pac. 313. =»Hart V. West. U. Tel. Co.. 66 Cal. "West. U. Tel. Co. v. Goodbar. 7 So. 579, 56 Am. Rep. 1.19. (Miss.) 214. =*Lassiter v. West. U. Tel. Co., 89 360 TELEGRAPH AND TELEPHONE COMPANIES. [§ 372 that different circumstances alter all cases, it would be difficult to lay down any fixed rule by which courts might be guided. An error of a single word, in the transmission of a message, may or may not amount to gross negligence. § 373. Ignorance of operator of the locality of the place. It is the duty of telegraph operators to know the localities of the towns in the state to which their lines extend, and the ignorance of the operator of such a fact, especially where it is of sufficient near- ness to the office in which he works or is of some importance, whereby he fails to make a transmission thereto, is evidence of gross negli- gence. Thus, where the message was addressed to a party at the county seat of the adjoining county, it was held gross negligence in him sending it to another place."^ The court said, in this case : "That if the agent of a company should not know of the existence of a town which is the county seat of a neighboring county, the town being one of the stations on the lines of the company, shows his utter unfitness for the position . . . the company was guilty of gross negligence in employing such an operator." In another case it was held by the court that the operators are bound to know the locality of any state to which a message is sent.^^ It was held that an error in the name of the destination, unexplained, is evidence of gross negli- gence.^^ And where the message has not been sent at all, it is purely evidence of gross negligence.^ ^ § 374. Conflict of laws. It has been held that the contract exempting telegraph companies from common-law liabilities must be proved, as a matter of evidence, according to the law of the forum ; ^^ but the general rule is that the law of the place, w^hcre the contract of sending is made, and not that of the state to which the message is sent or where the error occurred, ^West. U. Tel. Co. v. Buchanan, 35 785 (message directed to Toledo sent Ind. 429, 9 Am. Rep. 744. to Chicago), ^ West. U. Tel. Co. v. Simpson, 73 "" Garrett v. West. U. Tel. Co., 83 Tex. 422. Iowa, 257, 49 N. W. 88. ^West. U. Tel. Co. v. Howell, 38 '^ Gildhall, 58 Fed. 796; Hoadley v. Kan. 685, 17 Pac. 313; Po.stal Tel. Ca- Northern Transf. Co., 115 Mass. 304. ble Co. V. Robertson, 36 Misc. (N. Y.) <^ 375] COMMON LAW LrAIilLlTIES. 361 governs as to its nature, validity and interpretation.''" So it has been held that, if the state in which the contract of sending is made does not give these companies the right by statute to contract against com- mon-law liabilities, they cannot exonerate themselves from losses or injuries caused in another state, and one in which they may limit their liabilities, even though the action is brought in the latter state.^^ As said in the above case, "One state cannot be made the dumping ground for lawsuits between citizens of another state when they can- not recover from each other in their own state, where they made the contract." But if the law of the state in which the contract is made is not pleaded or shown, it will be presumed to be the same as that in which the suit is brought,^^ especially where the common law pre- vails in the latter state. While this is the general rule, yet there may be exceptions to it, founded upon the supposed intention of the par- ties, gathered from surrounding circumstances. Thus, if it be gath- ered from circumstances surrounding the particular case that it was the intention of the parties to be bound by the laws of the state in or through which the message was sent, and not by those of the state in which the contract of sending was made, the rule of law in the former state must control in the construction of the contract.^® It is also a general rule that a contract will not be enforced if it would be against the policy and institution of the state in which it is sought to be en- forced. § 375. Stipulation for repeating messages. The blanks commonly used by telegraph companies contain a stip- ulation to the effect that they will not be liable for errors, delays or non-delivery of messages for more than the amount received by them for transmission, unless the same is ordered to be repeated. The stip- =*West., etc.. R. Co. v. Exposition lins, 10!) Wis. 477, 85 X. \V. 703, 83 Cotton Mills, 81 Ga. 522, 7 S. E. 916, Am. St. Eep. 928. 2 L. R. A. 102; Liverpool, etc., Co. v. "Palmer v. Atchison, etc., R. Co., Phoenix Ins. Co., 129 U. S. 397, 9 Sup. 101 Cal. 187, 35 Pac. G30. Ct. R. 469; Dj-ke v. Erie, etc., R. Co.. "'Burnett v. Pennsylvania R. Co.. 31 45 N, Y. 113, 6 Am. Rep. 43. Atl. 972; Clark on Contracts, 503; "* Show V. Postal, etc., Cable Co., 79 Whart. Conft. L. 388 ; Story. Cpnft. L. Miss. 670, 31 So. 222, 89 Am. St. Rep. 371, §244. G66, 56 T.. i;. A. 48(i: Bartlett v. Col- 362 TELEGRAPH AND TELEPHOI^E COMPAjSTIES. [<^ 375 ulatiou has not varied in form or language from that now used bj the Western Union Telegraph Company. It provides that: "To guard against mistakes, the sender of the message should order it repeated, that is, telegraphed back to the original office. For re})cating, one- half the regular rate is charged in addition. And it is agreed be- tween the sender of the following message and this company, that the said company shall not be liable for mistakes or delays in the trans- mission or delivery, or for non-deliveiy of any unrepeated message, 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 messages beyond fifty times the sum received for sending the same, unless specially insured.^' § 376. Same continued — validity of such a stipulation. The validity of the stipulations in the blank form by which these companies have attempted to exonerate themselves for all losses caused by errors made in the transmission or delays in delivering messages, except the amount received for sending, unless the message is ordered to be repeated, has been variously viewed by the courts; yet the weight of authority is, that they are void and unenforcible.^^ ^Alabama. — American U. Tel. Co. v. Eep. 744; West. U. Tel. Co. v. Adams, Dougherty, 89 Ala. 191, 7 So. 660; 87 Ind. 598, 44 Am. Rep. 777; West, West. U. Tel. Co. v. Crawford, 110 Ala. U. Tel. Co. v. Meek, 49 Ind. 53. 460, 20 So. Ill; West. U. Tel. Co, v. Iowa. — Sweetland v. Illinois, etc., Cliamblee, 122 Ala. 428, 25 So. 232. Tel. Co., 27 Iowa, 433, 1 Am. Rep. Arkansas.— West. U. Tel. Co. v. 285 ; Mandville v. West. U. Tel. Co., 37 Short, 53 Ark. 434. Iowa 214, 18 Am. Rep. 8. Colorado.— West. U. Tel. Co. v. Kentucky.— West. U. Tel. Co. v. Eu- Graham, 1 Colo. 239, 9 Am. Rep. 136. banks, 100 Ky. 591, 38 S. W. 1068, 36 Georgia.— West. U. Tel. Co. v. Elan- L. R. A. 711, 66 Am. St. Rep. 361; chard, 68 Ga. 299, 45 Am. Rep. 480. Postal Tel. Cable Co. v. Scheafer, 62 S. /Hmois.— Tyler v. West. U. Tel. Co., W. 1119, 23 Ky. L. Rep. 344. 60 111. 421, 14 Am. Rep. 38; West. U. Maine.— Ajer v. West. U. Tel. Co., Tel. Co. V. Tyler, 74 111. 168, 24 Am. 79 Me. 493, 1 Am. St. Rep. 353, 10 Atl. Rep. 279; West. U. Tel. Co. v. Harris, 493. 19 111. App. 347; North Packing, etc., Minnesota. — Francis v. West. U.Tel. Co. V. West. U. Tel. Co., 70 111. 275. Co., 58 Minn. 252, 49 Am. St. Rep. 507, Indiana.— West. U. Tel. Co. v. Fen- 25 L. R. A. 406, 59 N. W. 1078. ton, 5^ Ind. 1 ; West. U. Tel. Co. v. Missouri.— Reed v. West. U. Tel. Co., Todd, 22 Ind. App. 701; West. U. Tel. 135 Mo. 601; 37 S. W. 904, 34 L. R. A. Co. V. Buchanan, 35 Ind. 429, 9 Am. 492, 58 Am. St. Rep. 609, overruling § .377] COMMOX LAW LIAIJILITIKS. 36:] These courts considered these stipidatioiis as a mere device for avoid- ing liabilities for acts of their own negligence or willful wrongs. As has been seen, they cannot enforce any regulation or contract, by means of which they may relieve themselves for any losses caused by their own negligence or ihat of their servants. Any rule which seeks to relieve them from exercising their employment with diligence, skill and integrity contravenes public policy as well as the law,^* and whenever they attempt to avoid these duties, they do so at the ex- pense of and injury to their patrons.^^ These companies claim that, as they are required to exercise very great care and diligence in mak- ing an accurate transmission of messages, this is the best means of l)erforming this duty, and for this reason the regulation is a reason- able one. This is unquestionably true, but that is no reason why they should not in the exercise of reasonable care in transmitting the messages delivered to them, repeat such messages in order to avoid mistakes and errors, irrespective of an agreement to that effect. It does not require very much more time to repeat the message, and the expense is but little increased. § 377. Same continued — further reasons for their own protection. These companies have accepted valuable privileges from the pub- lic, and in consideration of these they have undertaken to do certain 378; Gulf, etc., R. Co. v. Wilson, 69 Tex. 739, 7 S. W. 653; West. U. Tel. Co. V. Tobin, 5G S. W. 540; West. U. Tel. Co. V. Norris, 25 Tex. Civ. App. 43, 60 S. W. 982; West. U. Tel. Co. v. Fxagland, 61 S. W. 421; Mitchell v. West. U. Tel. Co., 12 Tex. Civ. App. 262, 33 S. W. 1016; West. U. Tel. Co. V. Nagle, 1 1 Tex. Civ. App. 539. Utah.— \Wertz v. West. U. Tel. Co.. 7 Utah 446, 13 L. R. A. 510n. 27 Pac. 172. Vermont.— GiWis v. West. U. Tel. Co., 61 Vt. 461, 4 L. R. A. 61 In, 15 Am. St. Rep. 917, 17 Atl. 736. Wisconsin. — Thompson v. West. U. Tel. Co., 64 Wis. 531, 54 Am. Rep. 644. ^West. U. Tel. Co. v. Blanchard, 68 Ga. 229, 45 Am. Rep. 480. ^Ayer v. West. U. Tel. Co., 79 Me. 493, 1 Am. St. Rep. 353, 10 Atl. 495. Wann v. West. U. Tel. Co., 37 Mo. 472, 90 Am. Dec. 395. Nebraska. —West. U. Tel. Co. v Lowry, 32 Neb. 732, 49 N. W. 707 Kemp V. West. U. Tel. Co., 28 Neb 661, 44 N. W. 1064, 26 Am. St. Rep 363 ; West. U. Tel. Co. v. Reals, 56 Neb 415, 71 Am. St. Rep. 682, 76 X. W. 903 'North Carolina. — Brown v. Postal Tel. Cable Co., Ill N. Car. 187, 16 S. E. 179, 17 L. R. A. 648, 32 Am. St. Rep. 793, overruling Lassiter v. West. U. Tel. Co., 89 N. Car. 334; Thompson V. West. U. Tel. Co., 107 N. Car. 449. 12 S. E. 447. Tennessee. — Marr v. West. U. Tel. Co., 85 Tenn. 529; Pepper v. West. U. Tel. Co., 87 Tenn. 554, 4 L. R. A. 660. 10 Am. St. Rep. 699. Texas.— West. U. Tel. Co. v. Bur- row, 10 Tex. Civ- App. 122, 30 S. W. 364 TELEGKAPII AXD TELEPHONE COMPANIES, [<§, 377 duties for the public — that is, to exercise due care in transmitting all messages presented to them after payment of the charges ; and to ex- ercise due diligence to find and deliver to the addressee a copy of the same. In order for them to perform these duties, they must provide themselves with proper and suitable instruments, and employ skilled operators. When a message is presented, with payment of charges, the sender has done what the law requires of him. He has performed his part of the contract entered into between him and the company, the same being that Avhich the Jatter holds itself out to the public to be ever willing and ready to perform. It then devolves upon the company to comply with its part of the contract — that is, to exercise good faith, due care and diligence in the transmission and delivery of the message. As was said : "If their wires and instruments are in proper order, and their operators skillful, and careful, it will tra- verse the wires precisely in the words and figures which composed it when placed upon the wires, and is sure, in that shape and foiiu, to reach its destination, no atmospheric causes intervening to pre- vent." ^^ To hold that a company could exempt itself from any lia- bility by such a stipulation would be relieving it from duties which have been placed upon it in exchange for a valuable right which none save it could enjoy — the right of eminent domain. They are as much bound to perform this duty as a public carrier is to deliver safely the goods in its charge. § 378. Same continued — extra charge — no increase of duty. The additional charges for reiDcating the message do not increase the duty which the company owes to the public, and that which was prescribed inferentially in the granted privileges. There is nothing on the part of the sender's contract which could be considered as in- creasing this duty. It is not such a charge as to make the company insurers,^ ^ since they are not so held by the common law. It is not a contractual consideration, for there is nothing given by the company in return for the consideration. Then, it must only be an additional source of revenue to the company and a protection to the latter for its own negligence; it can be nothing else — a free gift which is within «West. U. Tel. Co. v. Tyler, 74 111. "Tyler v. West. U. Tel. Co., 60 111. 168, 24 A)n. Eop. 280. 421, 14 Am. Rep. 51. ■§ 379] COMMON LAW LIA15IL11IKS. 365 the discretion of the render to make. The sender presents a telegram to be sent and the company says what it will charge for sending same ; this being paid, the company must then exercise that care and diligence in transmitting and delivering the message correctly that riny person would exercise under similar circumstances, for himself. How this duty must Ix' performed is left entirely with the company. If it should deem it proper and advisable tliat the message should be repeated in order to determine whether or not the duty had been per- formed, then it should repeat the message,^- and that, too, without any extra charge or consultation with the sender. If it cannot cor- rectly transmit messages without repenting them, they should be re- j)eated, but in either instance, it cannot exempt itself from losses caused by a failure to transmit correctly. § 379. Same continued — delay in delivery — non-delivery. Another reason why these stipulations should not be binding is, that they are not provided for with a view to enable these companies to make a correct transmission of messages, but rather to protect them from liability. In these contracts it is stipulated that the company will not be liable for a failure to make a prompt delivery, or, in other words, they will not be liable for losses caused by a delay in the delivery or non-delivery of the message, unless it is ordered to be re- peated. As it may be clearly seen, the object in repeating a message is to ascertain whether it has been correctly transmitted and not whether it has been promptly delivered at all. If, after having the message repeated, it was ascertained that it had been correctly trans- mitted, this fact would not remedy a loss caiTsed by a failure to de- liver promptly or for a non-delivery. To exonerate a company from losses caused by acts of the company which could not be prevented by repeating the message, would of course be absurd."*^ As will be seen, some courts hold tliat while the stipulation may be reasonable in so far as its object is to protect the company from loss caused by errors made in the transmission, yet it is not reasonable when its fur- ther object is to protect the company from loss caused by a delay in delivery or for non-delivery. "Ayor V. West. U. Tel. Co., 70 ]Me. ^ Thoinp-on on KlcitiiiMty, §241. 4!)3, 1 Am. St. Kop. 855, 10 Atl. 495. 366 Ti-:j.Et;K'Arii am) rKi.iaMio.M-: co.mi'Axies. [^ 380 § 380. Same continued — not a contract — compared to a bill of lading. Whether or not the i^aper on which the sl'ikIcv writes the message. and to which he attaches his name, is a contract and such as will bind him to all the stipulations contained therein, depends upon circum- stances ■*■* which will be discussed hereafter. The general rule is, that a receii)t or bill of lading, when assented to by the consignor, is a contract between him and the shipper, and all reasonable stipula- tions therein contained are binding on both.'^^ In order, however, for the receii:)t or bill of lading to be binding, the minds of the par- tics, as in other cases, must meet; that is, the terms of the contract must be accepted and assented to by the consignor. It has 1)ecn lield that when the terms of the bill of lading, or the stipulations con- tained therein, are sufficiently clear and conspicuous, and the con- signor has signed his name thereto, this fact is prima facie evidence that he has assented to the terms of the contract. The blank forms furnished b}^ telegraph companies to their patrons, and on which the messages are required to be written cannot be compared with the re- ceipts or bills of lading of carriers, with respect to their contractual nature, because the contract is not the same. One of the main inci- dents to telegraph companies is to accomplish their purposes in the shortest time possible. Quickness and celerity is the life and main- spring of their existence. It is seldom that a "person applies to these companies for sendee unless his business is of the utmost importance and, therefore, needs immediate attention, For these reasons he has not time to deliberate and consider the stipulations contained in these blank forms and reject them if they should not be acceptable. This is not always the case with the consignor of goods. In the lat- ter case the advantages of each are more equal. There is also some- thing given by the carrier to the consignor, in the nature of consid- eration, to enforce the stipulation, which is not given in the former case, and which will be hereafter considered. It may be proper to ** Tyler v. West. U. Tel. Co., Gl 111. 7.3 N. Y. ,S.5I, 29 Am. Eep. 1G3; Erie 421, 14 Am. Rop. 45. etc, R. Co. v. Dater, 91 111. 195, 3.3 *' Steele v. Townsend, 37 Ala. 247, Am. Rep. 51; Mobile, etc., R. Co. v. 79 Am. Dec. 49; Cincinnati, etc., R. VVeiner, 49 Mi.ss. 725; Levering v Co. V. Pontins, 19 Ohio St. 221, 2 Am. Union Transfer, etc., Co., 42 Mo. 88. Rep. 391 ; Hill v. Syracuse, etc., R. Co. •^ ,3S1] COMMON LAW LIAltlMTIES. 307 state hero, that wlicre the stipuhitioiis are reasonable, the same rtile will apply to both of these companies. Tlie above variance in the application of the rule is where it is necessary that a special express contract shall l)o made to exempt these companies from the nsnal conmion-law liabilities. § 381. Same continued — contract — no consideration. It is a general rule of the law of contracts that, in order for an agreement between two parties to be valid and enforcible, then- minds must not only come together at the same time with respect to the same subject matter, but there must be a mutual consideration. In the cases in ^vhich the courts held that the receipts or bills of lad- ing were contracts, there were mutual corfsiderations. The consignor agreed to release the carrier of some of the eonunoii-law liabilities in consideration of the latter making a reduction in the charges for shipping.^" In the case of a telegTam, however, the facts are dif- ferent. It is very clear that there is an additional charge exacted of the sender, and it is presumed to be a consideration; but, in order for it to be such, there must be given something in return for its value, and unless there is, the first is not a consideration, but rather a gift — as said, an additional source of revenue. Telegraph companies are public servants, and it is their duty as such to exercise a veiy great dearee of care to make correct and accurate transmission of all mes- sages tendered to them. In order to do this it devolves upon them to employ skilled and competent servants'*' and prepare themselves with all the modern facilities and improvements. Then, any act on the part of the sender in compensating them additionally for re- peating the message, increases this obligation or duty. These com- panies hold themselves out to the public to be ready and willing to perform certain duties with the greatest degree of care and fidelity. Then, is it ]-)0ssible for them or any other party entering into a con- tract for a valuable consideration, to promise and not to promise, or to create and not to create an obligation or duty, at one and the same moment and by one and the same act ? The inconsistency and impos- "Tyler v. West. U. Tel. Co.. GO 111. '" Sweetlaiul v. Illinois, etc.. Tel. Co.. ■121, 14 Am. Rep. 50. Compare T. C. 27 Iowa, 4.33. 1 Am. Rep. 202. ]\. Co. V. Moni^.m. l'.> 111. 1.30. 36S TELEGRAPH AND TELEPHONE COMPANIES. ['§ 381 sibility of such thiugs are obvious.'*^ A further question which pre- sents itself is, Can this stipulation be considered a contract whereby the company has bound itself as an insurer ? These companies are not insurers under the common law and, unless made so either by statute or by a special express contract to that effect, they will be re- quired to exercise only the greatest degree of care, and not as insurers of absolute correct transmission of messages under any and all cir- cumstances. They may, as has been seen, bind themselves as in- surers, but in order to do so, it must be done by an express contract made by a properly authorized officer of the company. The amount of the risk must also be specified in the contract, and paid at the time of sending the message.*^ So, it is very clear, that for these rea- sons, these stipulations cannot be considered contracts whereby the companies bind themselves as insurers. Neither can it be said that there is any consideration given by these companies in exchange for the extra charges paid by the sender for repeating the message. ^° § 382. Same continued — duress. These companies have become very important factors in the com- mercial world, and, in fact, they have become almost matters of nec- essity, without which the progress of our country would be seriously retarded.^^ Being of such vital interest to our commercial welfare, and clothed with many privileges and exemptions not enjoyed by the people at large, they must exercise their business with care and fidel- ity and not take any advantage of their position over the patrons who seek their services. As has been said, their services are most often employed at a time when the party employing them is not in aposition to consider contracts which attempt to exempt them from performing their public duties, and at a time when the employer would be wil- ling to undergo almost any risk to accomplish the purpose for which the message is to be sent. To give the companies the power to enforce these stipulations would not only have a tendency to destroy and ham- *»Bartlett v. West. U. Tel. Co., G2 108, 24 Am. Rep. 281; Candee v. West. Me. 209, 16 Am. Rep. 444. I'. Tol. Co., 34 Wis. 471, 17 Am. Rep. "Tyler v. West. U. Tel. Co., GO 111. 452. 421, 14 Am. Rep. 50. " Smith v. West. U. Tel. Co., 83 Ky. "West. U. Tel. Co. v. Tyler, 74 Til. 10+. 4 Am. St. Rep. LSO. § 382] COM.NrOX T.AW LIABILITIES. 360 per the objects for which they were incorporated, but it would also give them the power to take advantage of their situation, and be able to enforce a contract induced by a species of moral duress.^^ The weight of authority, for these reasons, seems to be opposed to uphold- ing such stipulation."''^ -■•Jl" it be a contract, the sender en- iciing into it was under a species of moral duress. His necessities compell- ed him to resort to the telegi-aph as the only means through which he could speedily transact the business in hand, and was compelled to submit to such conditions as the company, in their corporate greed, might impose and sign such papers as the company might- pre- sent. Credentials, rules and regula- tions, such as the company is autho- rized by statute to establish, cannot be understood to embrace such regulations as shall deprive a party of the use of their instrumentalitj', save by com- ing under most onerous and unjust conditions." Tyler v. West. U. Tel. Co., 00 111. 421, 14 Am. Rep. 51. In Gillis V. West. U. Tel. Co., 61 Vt. 461, 17 .\tl. 736, 4 L. E. A; 61 In, 15 Am. St. Itep. 917, the court, said: "Telegi'aph companies do not deal with their em- ployers on equal terms. There is a ne- cessity for their employment. Neither the commercial world nor the general public can dispense with their services. It is, therefore, just and rea- sonable that they should not be allow- ed to take advantage of their situation, and of the necessities of the public, to exact exemption from that measure of fluty that the law imposes upon them, and that public policy imposes." See, also, Dorgan v. West. U. Tel. Co., 1 Am. L. T. Rep. N. S. 406; West. U. Tel. Co. v. Griswold, 37 Ohio St. 311, 41 Am. Rep. 500; Marr v. West. U. Tel. Co., 85 Tenn. 529, 3 S. W. 496. "West. U. Tel. Co. v. Short, 53 Ark. 4.S4, 14 S. W. 649; American U. Tel. Co. v. Dougherty, 89 Ala. 191, 7 So. T. & T.— 24 660; West. U. Tel. Co. v. Graham, 1 Colo. 230, 9 Am. Rep. 136 ; West. U. Tel. Co. V. Blanchard, 68 Ga. 299, 45 Am. Rep. 480; West. U. Tel. Co. v. Meek, 49 Ind. 53; West. U. Tel. Co. v. Fentoii, 52 Ind. 1 ; West. U. Tel. Co. v. Harris, 19 111. App. 347; Tyler v. West. U. Tel. Co., 60 ill. 421, 14 Am. Rep. 38; West. U. Tel. Co. v. Tyler, 74 ill. 168, 24 Am. Rep. 279; Sweetland v. Illinois, etc., Tel. Co., 27 Iowa 433, 1 Am. Rep. 285; Ayer v. West. U. Tel. Co., 79 Me. 493, 1 Am. St. Rep. 353, 10 Atl. 495; West. U. Tel. Co. v. Lowry, 32 Neb. 732, 49 N. W. 707; Kemp v. West. U. Tel. Co., 28 Neb. 661, 44 N. W. 1064 (stipulation declared invalid by stat- ute) ; Brown v. Postal Tel. Cable Co., Ill N. C. 187, 16 S. F. 179, 17 L. R. A. 648, overrul- ing Lassiter v. West. U. Tel. Co., 89 N. Car. 334; Marr v. West. U. Tel. Co., 85 Tenn. 529, 3 S. W. 496; Pepper v. West. U. Tel. Co., 87 Tenn. 554, 11 S. W. 783, 4 L. R. A. 660, 10 Am. St. Rep. 699; Wertz v. West. U. Tel. Co., 7 Utah 446, 27 Pac. 172, 13 L. R. A. 576n; Gillis v. West. U. Tel. Co., 61 Vt. 461, 17 Atl. 736, 4 L. R. A. 611n, 15 Am. St. Rep. 917; Thompson v. West. U. Tel. Co., 64 Wis. 531, 84 Am. Rep. 644; Bartlett v. West. U. Tel. Co., 62 M.>. 209, 16 Am. Rep. 437; True v. International Tel. Co., 60 Me. 9, 11 Am. Rep. 156; Candee v. West. U. Tel. Co., 34 Wis. 471, 17 Am. Rep. 452; West. U. Tel. Co. v. Richmond, 8 Atl. 171; Bimey v. New York, etc., Tel. Co., 18 Md. 341, 81 Am. Dec. 607; :\Ionville v. West. U. Tel. Co., 37 Iowa, 370 TELEGRAPH AND TELEPHONE COMPANIES. [§ 383 § 383. When requested to be repeated — question of fact. In those jurisdictions in which it is held that telegraph companies may exempt themselyes from losses caused by errors made in the transmission of messages, unless the same is ordered repeated, it is a question of fact to be decided by a jury as to whether or not the company was ordered to repeat the message. In a certain case, de- ciding this point, when it appeared that on receipt of the dispatch the plaintiff, the addressee, went at once to the operator and re- quested him to ask the sender whether certain words were "five six" or "five sixty," it was held that this amounted to a request by the plaintiff to have the message repeated, and that it was immaterial whether or not the forms established by the company for the repeat- ing of messages were complied with.^^ § 384. Same continued — binding on sender only. The above case was brought by the addressee and not by the sen- der ; it seems that the stipulation as to repeating is not a matter to be considered — except under certain circumstances — when the suit is brought by the addressee. "The receiver can be guided or informed solely by what is delivered to him, and has no opportunity to agree upon any such conditions before delivery," ^^ But whether this is always the case depends upon the view in which the addressee's right of action is regarded. It was held, in one case, that the express stip- ulation in the contract of sending binds the receiver as well as the sender,^^ and it is considered by Mr. Thompson, in his work on Electricity, that in so far as the receiver's right of action rests in contract, he is bound by the agreement entered into by the sender as much so as the sender himself. But, "if the telegraph company, when it delivers an erroneous message to the person to whom it is ad- dressed by the sender, puts itself in the condition of a mere tort- 214, 18 Am. Rep. 8; U. S. Ex. Co. v. ^De La Grange v. Southwestern Tel. Backman, 23 Ohio St. 155; Lamb v. Co., 25 La. Ann. 383; Tobin v. West. Camders, etc., Co., 46 N. Y. 271, 7 Am. U. Tel. Co., 146 Pa. St. 375. 20 Atl. Rep. 327; So. Ex. Co. v. Moon, 39 Miss. 324, 28 Am. St. Rep. 802. 822. '« Aiken v. West. U. Tel. Co., 5 S. »*West. U. Tel. Co. v. Laudis, 21 Car. 358. Am. & Eng. Cas. (Pa.) 206. <^ 385] COMMON LAW LIAHILITII-IS. 371 feasor, one guilty of a misfeasance toward a stranger by which that stranger has incurred a loss, then this conclusion (i. e., that the re- ceiver is not bound) is supportable. "^'^ § 385. Times within which claims are to be presented. The blank forms on which the messages are to be written generally contain stipulations providing that all claims against the company for failure to transmit messages correctly must be presented in writ- ing, and within a certain prescribed time. The language of these stipulations is generally as follows: ''The company will not be lia- ble 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." When the sender signs these forms, these stipulations enter into and become a part of the contract of sending. ^^ There is a difference of opinion on this sub- ject, as to whether they are reasonable and enforcible, but the bet- ter weight of authority is that they are valid stipulations. They do not at all exempt or relieve the company from performing its duties in a faithful, diligent and careful manner, being still held to the same responsible duty. Neither does it lead to an affirmance of a right to contract for relief against responsibilities for negligence ; nor does it put them in the power of the company to nullify or evade the law f^ but such stipulations do relieve the company somewhat "Thompson on Electricity, §237. 17 j\Io. App. 257; Young v. West. U. "Hill V. West. U. Tel. Co., 85 Ga. Tel. Co., 65 N. Y. 163; Wolf v. West. 425; West. U. Tel. Co. v. Way, 83 Ala. a. Tel. Co., 62 Pa. St. 83; West. U. 542, 4 So. 844; West. U. Tel. Co. v. Tel. Co. v. Rainis, 63 Tex. 27; West. Henderson, 89 Ala. 510, 7 So. 419, 18 U. Tel. Co. v. Reynolds, 77 Va. 173. Am. St. Rop. 148; West. U. Tel. Co. v. 46 Am. Rep. 715; Hartzog v. West. Cobbs, 47 Ark. 344; 1 S. W. 558; V. Tel. Co., 84 Miss. 448, 36 So. 539. West. U. Tel. Co. v. Dunfield, 11 Colo. 105 Am. St. Rep. 459; Hermann v. 335; West. U. Tel. Co. v. IMeredith, 95 West. U. Tel. Co., 57 Wis. 562, 16 N. Ind. 23; West. U. Tel. Co. v. Jones, 95 W. 32, Beasley v. West. U. Tel. Co.. Ind. 228, 48 Am. Rep. 713; West. U. 39 Fed. 181. Tel. Co. v..McKibben, 114 Ind. 511, 14 '» Harris v. West. U. Tel. Co., 121 N. E. 894; West. U. Tel. Co. v. Yopst, Ala. 519, 25 So. 910, 77 Am. St. Rep. 118 Ind. 248, 20 N. E. 222, 3 70; West. U. Tel. Co. v. Jones, 95 Ind. L. R. A. 224n; Cole v. West. U. 228, 48 Am. Rep. 713; West. U. Tel. Tel. Co., 33; Minn. 227; Mas- Co. v. Yopst, 118 Ind. 248, 20 N. E. sengale v. West. U. Tel. Co., 222, .S L. R. A. 224n; West. U. Tel. 372 TELEGRAIVir AXD TKLEI'HOXE COMPANIES. [§ 385 from being hold for some alleged liabilities, about Avliich it would be unable to make a proper and expedient defense/''* In order, how- ever, for these stipulations to be reasonable, the time within "which the presentation is to be made must be reasonably long to enable the party claiming damages to become aware of the injury and to pre- sent his claim properly. Thus, it has been held that a stipulation was reasonable which required all claims against the company to be presented within sixty days ^^ after the filing of the message for transmission. It has also been held that thirty days,'''- and even twentj^ days,'*'^ was a reasonable time to limit the presentation of these claims. But the reasonableness of any particular time may vary according to circumstances.*'^ It was held in one case that seven days was a reasonable time to give the injured party for presenting his claim. ^^ § 386. Same continued — reasons for rule. There is no question but that these regulations are equitable, pro- vided the time in which they are to be made is reasonable.^*^ It is a general rule that a common carrier may make and prescribe a certain limited time within which all claims must be presented. These corn- Co. V. Dougherty, 54 Ark. 221, 15 S. Colo. 335; Cole v. West. U. Tel. Co., W. 468; So. Ex. Co. v. Colwell, 21 33 Minn. 228; Massengale v. West. U. Wall. (U. S.) 264. Tel. Co., 17 Mo. App. 257; West. U. «» Id. Tel. Co. V. Culberson, 79 Tex. 65, 15 S. «MVest. U. Tel. Co. v. Way, 83 Ala. W. 219; West. U. Tel. Co. v. Pells, 2 542, 4 So. 844; West. U. Tel. Co. v. Tex. L. Eev. 246; Beasley v. West. U. Dougherty, 54 Ark. 221, 15 S. W. 468; Tel. Co., 39 Fed. 181. Compare, John- Hill V. West. U. Tel. Co., 85 Ga. 425 ; ston v. West. U. Tel. Co., 33 Fed. 362 ; West. U. Tel. Co. v. Yopst, 118 Ind. So. Ex. Co. v. Caperton, 44 Ala. 101^ 248, 20 N. E. 222, 3 L. R. A. 224n; 4 Am. Rep. 118, holding such a stipu- West. U. Tel. Co. v. Jones, 95 Ind. 228, lation void. 48 Am. Rep. 713; Young v. West. U. "^ Aiken v. West. U. Tel. Co., 5 S. Tel. Co., 65 N. Y. 163; Sherrill v. Car. 358; Heimann v. West. U. Tel. West. U. Tel. Co., 109 N. Car. 527, 14 Co., 57 Wis. 562, 10 K W. 32. 8. E. 94; Wolf V. West. U. Tel. Co., «* Massengale v. West. U. Tel. Co., 62 Pa. St. 83, 1 Am. Rep. 387; West. 17 Mo. App. 257. U. Tel. Co. V. Rains, 63 Tex. 27; West. «= Louis v. Great West. R. Co., 5 H. U. Tel. Co. V. Brown, 84 Tex. 54, 19 S. & N. 807. W. 336; Tester v. West. U. Tel. Co. 84 «" West. I'. Tel. Co. v. Jones, 05 Ind. Tex. 313, 19 S. W. 256. 228, 4S Am. Kcp. 710. "MVest. C. Tel. Co. v. Dunfidd, 11 (^ 3S(J I COMMON LAW r.IAI'.II.nil. 373 ]ianios ni-c iiisunix of" the CMods iiitnistod to tlioiii aiul can onlv Ijc ro- lifvod of lialiiliiv for loss cansod liy llic acts of (;od <.r tlio i)nblic OTicmv. At coiiiiiioii law. IclciiTapli coiiiiianics arc not li<'lressages are usually di-stroyed after Ix-ing kept six months, and the company's ability to defend would naturally be affected by a delay in its being informed of a claim. If a sender of a message has sustained a loss by the failure of the company to ]iroi)erly transmit it, he could very easilj' ascertain this fact within sixty, thirty, twenty, or even within a shorter time, after the message was hied, and it would be no unrea- sonable rule to require Iiiiu to ]>roinprly notify the company of this fact in order that the latter might remedy the loss or defend itself for such. The object in transacting business over telegraph lines is to accomplish the desired results in the shortest time possible, and surely the sender of the message Avould find out very soon after it was filed whether or not the message had acconii)lished its purpose: and it would be no burden or inconvenience on his part to notify the com- pany that the objects had not been accom]dished, to his loss. The presumptions are, that if he fails to notify the company of the im- proper transmission of the message, the rights acquired under this aoTcement are waived.''^ Another reason justifying the reasonable- ness of the provision for notice of the cbiiiu. is found in the multi- tude of messages transmitted requiring a speedy knowledge of claims to enable the company to keep an account of its transactions, b' fore, bv reason of their great number, they cease to be within their recol- lection and control.'''* "•Wolf V. Wost. f. Tel. Co.. CrJ I'a. 'Wnlf v. WV^t. T. IVl. Co.. &> I'a. S3, 1 Am. Kep. 387. J^-". ' \'"- '''''l'- '■^^'^ *«Wost. V. Tel. Co. V. Jones, 05 Iiul. 228, 48 Am. Ucp. 716. 374 TELEGRAPH AND TELEPHONE COMPANIES. [§ 387 § 387. Same continued — statutory penalty — applicable. In many states there are statutes which impose a penalty upon telegraph companies for a failure to properly perform their duties, and the question has come up in several instances as to whether these stipulations were applicable to such claims. In some states, as in Arkansas, it has been held that they were not applicable J ^ In Greorgia it is held that while the stipulation does not apply to claims for the statutory penalty, it does apply to all claims for special dam- ages, and operates not only against the sender of a message, but also against the receiver, where the message is in reply to a previous mes- sage sent by the receiver.'^ ^ "While this is the holding in some states, the majority of the states hold, however — and the preponderance of authority is to that effect — that these stipulations are as applicable to statutory penalties as they are to any other elaims."^- § 388. Same continued — not to be prosecuted by the public. As was ably said by Judge Elliott on this subject : ''The penalty provided by the statute is given to one who contracts with a tele- graph company for the transmission of a message, and it is not a pen- alty recoverable by public prosecution, but is one for which a civil action will lie. ITor is the civil action for the benefit of the public, for the formal right of action and the entire beneficial interests are exclusively in the individual who contracts with the company in the particular instance. The case is therefore entirely unlike public prosecutions for offenses affecting the community at large, which are conducted by public officers and in which individuals have no private interest. Penalties given exclusively to private individuals may be compounded, while penalties prescribed for purely public offenses cannot be, even though part of the penalty be given to the in- former." "^^ But it has been held that these stipulations were not ap- plicable to an addressee who was attempting to recover the statutory penalty.''* And in order for the company to take advantage of the '"West. U. Tel. Co. v. Cobbs, 47 Ark. U. Mel. Co., 42 Mo. App. 546; West. 344, 1 S. W. 558, 58 Am. Rep. 756. U. Tel. Co. v. Meredith, 95 Ind. 93. "West. U. Tel. Co. v. James, 90 Ga. "West. U. Tel. Co. v. Yopst, 118 Ind. 254, 16 S, E. 83. 248, 20 N. E. 222, 3 L. R. A. 224n. '2 West. U. Tel. Co. v. Jones, 95 Ind. '* West. U. Tel. Co., v. McKibben, 114 228, 48 Am. Rep. 713; Barrett v. West. Ind. 511, 14 N. W. 890. ^ 389] COMMON LAW LIABILITIES. 375 plaintiff's failure to present the claim within the required time, it must be specially pleaded."^ '^ § 389. Stipulation held void as against public policy. It is held in some jurisdictions that these stipulations, requiring all claims against telegraph companies to be presented within a cer- tain fixed time, are void in that they are against public policy and as an attempt to establish limitations which are fixed by the general statutes of limitation.'" As was said: ''It would introduce into tho local jurisprudence of every state, territory and country, a species of private statutes of limitation or non-claim. It would avoid the policy of the state in the matter of the time in which actions, both in tort and contract, should be brought." ^^ Another reason why the stipu- lation is not reasonable is that it furnishes the company a means of avoiding liability for its negligence, in that the injured party may possibly not know of his loss in time to comply with the requirements of the stipulation.'^ 8 In Nebraska it is held that if these stipulations are viewed as a contract between the telegraph company and the sen- der, they are void, as there is no consideration given."^^ It will be <)bservcd, however, that in most of the cases which hold that these itipulations are unreasonable and void, the validity of these stipula- tions was denied on the ground that they could not be made applica- ble to actions for the statutory penalty, or to the addressee.^" Thus, in Indiana it has been held that an addressee of a message, suing to "West. U. Tel. Co. v. Scircle, lO.'i illation which has the effect to pi - Ind. 227. elude from the right of action the per- " Johnston v. West. U. Tel. Co., 33 son to whom a prepaid telegram is di- Fed. 302; West. U. Tel. Co. v. Eu- rected and to whom it has never been banks, 100 Ky. 591, 38 S. W. 1068, 36 delivered, no matter how gross the neg- L. R. A. 711, 60 Am. St. Rep. 361; ligence of the company may be, a rea- Francis v. West. U. Tel. Co., 58 Minn. scnable regulation? In the opinion ot 252, 59 N. W. 1078, 25 L. R. A. 466, this court it is clearly unreasonable 49 Am. St. Rep. 507 ; Pac. Tel. Co. v. and is contrary to public policy." Underwood, 37 Neb. 315, 55 N. W. '"Pac. Tel. Co. v. Underwood, 37 1057, 40 Am. Rep. 490. Neb. 315, 40 Am. St. Rep. 480, 5.-) N. "Vvest. U. Tel. Co. v. Longwill. 21 W. 1057. Pac. 339. *» Johnston v. \\est. U. Tel. Co., 3.3 " In Johnston v. West. U. Tel. Co., Fed. 362. 33 Fed. 302. tho court said: "Is a stip- 376 TELEGRAPH AXD TELEPHONE Co.Nn'AMKS. [§ 38U recover damages, is not bomid liv these stipulations, nl though the val- idity in other respects is recognized.^ ^ In Texas these stipulations are valid so long as the time for filing the claim is not less than thirty days,®- but if the time is made any number of days less than thirty, they become void.^^ In other states these stipulations are held in- valid in that they are prohibited by positive statutory provisions.^* § 390. When limitation begins to run. These limitations, within which claims must be presented to the company, begin to run from the time specified in the stipulation. They are for the exclusive benefit of the company and are in the na- ture of conditions precedent to the bringing of a suit, and in order for the injured party to take advantage of his loss, he must comply with, the terms of the conditions.^ ^ As they are for the benefit of the company, and must be complied with by the party injured, the for- mer must also be held to their conditions.^" The principal condition in the stipulation is, that the claim must be presented Avithin a cer- tain fixed time. The question, then, which presents itself is, When does the limitation begin to run ? In the old blank form, used by these companies for message blanks, the wording of these stipula- tions was different from that now in use. The old form provided for a presentation within "sixty days after sending the message." Un- V der this form many decisions arose, and it was held in all these that the limitation did not licgiii to run until aftci' the message was ac- tually sent; so, if there was a total failure to transmit, the limita- tion wonld not a])])ly.*''^ Under tlie present forms used by these com- ^' West. U. Tel. Co. v. :MeKil)ben, 114 ^^ch. 194, 4S Am. St. IJc]). 72^. ()2 X. Ind. 511, 14 K. E. 894. W. 451. ^^Tex. Kev. Stat. 1895, Art. 3379. «nVest. I^ Tel. Co. v. Way, S3 Ala. ^=West. U. Tel. Co. v. Jobe, 6 Tex. 542, 4 So. 849. Civ. App. 403, 25 S. W. 168, 1036. »« West. 1. Td. ( o. v. rnniihiill. 1 "West. U. Tel. Co. v. Eubanks, 100 hid. .\\>]>. 121: West. V. Tel. Co. v. Ky. 591, 36 L. R. A. 711, 60 Am. St. ^..|.s^. J IS Ind. 248. 20 X. K. 222, 2 L. Kep. 361; Donio v. West. U. Tel. Co., K. A. 224ii. 107, Ky. 527, 92 Am. St. Rep. 371; "' Soo note SO for roforonce cases. Pac. Tel. Co. v. Underwood, 37 Xeb. Sec. also. Slicirill v. WCst. l'. WA. Co.. 315, .55 X.- W. 10.57. 40 Am. St. l^-]'- '•"■' ^'- <^''" ■ '•-"■ ' ^ '^^ '''• •'^• 490; West. U. Tel. Co. v. Kemp. 44 ^ 391] COMMOX LAW LIABILITIES. oit panics, it i> iirn\i(lcd tliat the company will not Ix- liable for damages or for statiitnry penalties in any case where the claim is not pre- sented ill writiii£i- within sixty days after the message is filed with the comically for transmission. There have l)een but few decisions on these new forms with respect to the time when the limitation be- gins to run. In these cases it was held that the decisions under the old form were applicable under the new on the ground that these companies conld not avail themselves of any provision in a contract which they faih-d to aceept.^^ We think this is the proper construc- tion to be plne('§ 409] COMMON LAW LIABILITIES. 391 are not invested by tlie company with the powers of receiving the company's charges or fees for the transmission of telegrams." ^^^ This stipulation affords no protection to the company, if the message, de- livered by the messenger, request a reply, and the company directs the messenger to obtain from the addressee such reply. ^^^ The com- pany may, however, waive its rights acquired under the stipulation. Thus, if it has been the custom of the company to consider a delivery to the messenger a delivery to the company, it cannot obtain protec- tion under this stipulation. § 409. Waiver of stipulation limiting company's liability. Stipulations limiting the liability of telegraph companies, or fixing the time and manner of presenting claims or notices, may be waived by the company impliedly by conduct as well as expressly. ^^^ Thus, where the company received a claim and acted upon it after the ex- piration of the time, without any objection on that account, it will be presumed that the stipulation has been waived. ^^^ So, also, it is required that the claim shall be presented in writing, but if they are received and acted upon, or there is a promise to act upon them ^\^thout objection by the company on this account, it will be deemed that it has made a waiver of this requirement. ^^^ And a stipulation limiting the company to a certain sum is waived when the company, in adjusting the damages, agrees to pay the injured party a larger sum than that stated in the contract limiting its liability. ^^^ But it has been held that an injured party has no right to rely upon the promise of one of the company's agents to waive a provision as to "'Stamey v. West. U. Tel. Co., 92 '*" International, etc.. R. Co. v. Un- Ga. 613, 44 .\in. St. Eep. 98, 18 S. E. dcrwood, 62 Tex. 21; Hudson v. North- 1018. ern Pac. R. Co., 60 N. W. (Iowa) 608. , '" Will V. Postal Tel. Cable Co., 3 N. '" Bennett v. Northern Pac. Ex. Co., Y. App. Div. 22. 12 Oregon 49, 6 Pac. 160; Rice v. Kan- "* Galveston, etc., R. Co. v. Ball. 80 sas Pac. R. Co., 63 Mo. 314; Atchison. Tex. 602, 16 S. W. 441; Hess v. Mis- etc., R. Co. v. Temple, 47 Kan. 7, 27 soiiri Pac. R. Co., 40 Mo. App. 202; Pac. 98, 13 L. R. A. 302n. Merrill v. American Ex. Co., 62 N. H. '» Chicago, etc., R. Co. v. Katzen- 514; Glenn v. South. Ex. Co. 86 Tenn. bach, 118 Ind. 174, 20 N. E. 709. 594, 8 S. W. 152; Hudson v. Northern Pac. R. Co., 60 N. W. (Io^Ya) COS. 392 TELEGKAPH AND TELEPHOS-E COMPANIES. [^ 4:09 the time within which suit must be brought, when he knows that such agent has no riiiht to adjust such claim without authority from the company. ^^* § 410. Burden of proof. It may often become of great importance when these companies attempt to exonerate themselves from losses by these stipulations or special contracts, to determine upon whom the burden of proof rests. There is some conflict of authority upon some phases of this subject. But the proposition seems to be pretty well settled, that proof of loss, caused in the transmission or delivery of messages, generally raises a presumption of negligence or fault on the part of the company; and the burden rests upon the latter to explain or account for the loss in some way in order that it may be exoner- ated.^*" If the company claims that the loss or damage occurred from some cause excepted by the stipulation or special contract, the burden is upon the company to show that fact.^*^ As we have seen, however, the company is generally liable for its own negligence, even though the loss was from some excepted cause, occasioned by its fail- ure to exercise due care. In many states the burden is upon the company not only to show^ that the loss was within the terms of the exception, but also that the loss was not caused by any negligence on its part, at least, none which was a proximate cause of the loss. There is some authority which supports the rule that, after the loss is shown to be within the exception, the burden of proof then rests upon the plaintiff to show negligence upon the part of the company. ^^^ ^rai- nent judges and textwriters approve the former rule, and we are in- clined to think that the better reasoning is in favor of it.^"^ '«»Gulf, etc., R. Co. V. Brown, 24 S. '"Little Roek, etc., Co. v. Talbat, 39 W. (Tex.) 918. Ark. 523; The same v. Harper, 44 Ark. 1^' Canfield v. Baltimore, etc., R. Co., 208 ; Whiting v. St. Louis, etc., R. Co., 93 N. Y. 532; Grogan v. Adams Ex. 101 Mo. 631, 14 S. W. 743, 10 L. R. A. Co., 114 Pa. St. 523, 7 Atl. 134; Adams 002; Smith v. Xorth Carolina R. Co., Ex. Co. V. Haynes, 42 111. 89; Mann 04 N. C. 235; Railway Co. v. Man- V. Birchard, 40 Vt. 326; Chapman v. Chester Mills, 88 Tenn. 653; Buck v. New Orleans, etc., R. Co., 21 La. Ann. Pennsylvania R. Co. 150 Pa. St. 170 224, 99 Am. St. Rep. 722. 24 Atl. 678. '"Maghee v. Camden, etc., R. Co., "'Id. 45 N. Y. 514; Keeney v. Grand Trunk K. Co., 47 X. Y. 525. § ^11] coM:\r()X i,A\v i-iahii-itiks. I Jo § 411. Proof of assent to stipulation. Ordinarily a party is not buiiiid lo a rule or regulation by which a carrier seeks to limit his liability, \inless the same has been brought to his notice.^"*'* But in the case of telegraph companies, the rule seems to bo somewhat different. The message blank, furnished by these companies to their customers, contains contracts and stipula- tions which are so arranged therein that the sender, when he affixes his name thereto, is conclusively presumed, in the absence of fraud or imposition, to have assented to the terms of the contract, and is bound by all these "which are reasonable, ^■*'^ even though he did not read or notice them, or was not able to read them.^^" He is presumed to have had notice of these from the fact that they are contained on the blanks and, in a sense, he has notice of them. A very common- '" Adams v. Hayles, 42 111. 89; De- Rutte V. New York, etc., Tel. Co., 1 Daly (N. Y.) 559, 30 How. Pr. (N. Y.) 433. ^^ United States. — Beasley v. West. U. Tel. Co., 39 Fed. 181; Primrose v. West. U. Tel. Co., 154 U. S. 1. Georgia.— nm v. West. U. Tel. Co., 85 Ga. 425, 11 S. E. 874, 21 Am. St. Rep. 166; Stamey v. West. U. Tel. Co., 92 Ga. 613, 44 Am. St. Rep. 95, 18 S. E. 1008. Iowa. — Sweetland v. Illinois, etc., Tel. Co., 27 Iowa, 433, 1 Am. Rep. 285. Kentucky. — Camp v. West. U. Tel. Co., 1 Met. (Ky.) 164, 71 Am. Dec. 461. Maryland. — Bimey v. New York, etc.. Printing Tel. Co., 18 Md. 341, 81 Am. Dec. 607. Massachusetts. — Redpath v. West. U. Tel. Co., 112 Mass. 71, 17 Am. Rep. (I!); Grinnell v. West. U. Tel. Co., 113 Mass. 299, IS Am. Rep. 485. .l/jc7ii(7a».— West. U. Tel. Co. v. Ca- rew, 15 Mich. 525. Minnesota. — Cole v. West. U. Tel. Co., 33 Minn. 227. Xchraska.— Becker v. West. U. Tel. Co.. 11 Neb. 87, 38 Am. Rep. 356, 7 N. W. 808. New York. — Breese v. United States Tel. Co., 48 N. Y. 132, 8 Am. Rep. 526.; Young V. West. U. Tel. Co., 65 N. Y. 103, 34 N. Y. Sup. Ct. 390; Kiley v. \Vest. U. Tel. Co., 109 N. Y. 231 ; Pear- sail V. West. U. Tel. Co., 44 Hun 532 : Schartz v. Atlantic, etc., Tel. Co., 18 Ilun 159. Pennsylvania. — Wolf v. West. U. Tel. Co., 62 Pa. St. 83, 1 Am. Rep. 387 ; I'as^iiore v. West. U. Tel. Co., 78 Pa. St. 238. South Carolina. — Young v. West. U. Tel. Co., 65 S. Car. 93, 43 S. E. 448: Pinckney v. West. U. Tel. Co. 19 S. C. 73, 45 Am. Rep. 765. Tennessee. — Marr v. ^Vest. U. Tel. Co., 85 Tenn. 530. Texas. — Womack v. West. U. Tel. Co., 58 Tex. 179, 44 Am. Rep. 614; West. U. Tel. Co. v. Ed.-5all. 63 Tex. 068; Anderson v. West. U. Tel. Co.. 84 Tex. 17. '" West. U. Tel. Co. v. Henderson, 89 Ala. 510, 7 So. 419, 18 Am. St. Rep. 148; West. U. Tel. Co. v. Edsall. 63 Tex. 068. 394 TELEGRAPH AIN'D TELEPHONE COMPANIES. [<§ 411 sense rule — and one the reason of which there is no necessity for argument — is. that no statement, agreement or any other kind of writ- ing, should be signed until it shall have been read and understood. The rule applies to contracts and regulations of telegraph companies as it does to writings given out by any other corporation or individ- ual. So, it has been held that it will be presumed the sender under- stood the contents of the blank and accepted the terms; and he is therefore estopped from denying or disputing the agreement. ^^"^ ISTei- ther can he, in absence of misrepresentation or fraud, with full op- portunity to be informed of its contents, avoid the contract upon the ground of his negligence or omission to read it, or to avail himself of such infoi-mation.^'*^ Fraud will vitiate all contracts, and if there has been any misrepresentations or fraud perpetrated by the company on the sender, of course the contract will not be binding. It may seem to be a hard rule to impose such laws upon people who may be too ignorant to read the contents of these' blanks, or who may not have had the time to read them. But, as it has often been said, these companies, like all other public institutions, have the right to pass and enforce all reasonable rules and regulations for the betterment of their business; and they may also limit to a certain extent some of their common-law liabilities by stipulations and contracts assented by their customers. These rules are certain, fixed and universal, and become part of the laws of their institution, and are, in a sense, pro- mulgated to the public by notices on placards conspicuously tacked in their oflSces and elsewhere, and by notices given in their message blanks. This is the only means by which their regulations and con- tracts would likely come into the hands of those who should desire to employ them, and it is the duty of the latter — even though it may be some imposition on them — to accept the notice of these in this way; and it is presumed that they have been so accepted and agreed to when the sender has attached his signature to the blank. ^^® "^Breese v. United States Tel. Co. 48 N. Y. 132, 8 Am. Rep. 526; Soumet 48 N. Y. 132, 8 Am. Rep. 526; Belger v. .National, etc., 66 Barb. 284; Wom- V Densmore, 51 N. Y. 166; Womack ack v. West. U. Tel. Co., 58 Tex. 176, V. West. U. Tel. Co., 58 Tex. 176, 44 44 Am. Rep. 614. Am. Rep. 614. "'Gray on Tel., p. 52. ^"Breese v. United States Tel. Co., <§, 413] co>r>rox i,aav liabilities. 395 § 412. Contrary holding. It is held ill some jurisdictions that the mere fact that the sender aflBjtes his signature does not of itself make the contract binding upon him, unless it is actually brought to his notice, and he signs with full knowledge of its terms. ^^" In those states in which this is the holding, the question of knowledge and assent is a question of fact ^"^ to be left to a jury upon evidence aliunde. As was said on the sub- ject: ''Whether he (the sender) had knowledge of its terms and as- sented to its restrictions, is for a jury to determine, as a question of evidence aliunde, and all the circumstances attending the giving of the blank are admissible in evidence to enable the jury to deter- mine that fact," ^^- and ''slight evidence of acceptance of, or assent to, such regulations, would no doubt suiRce, but it is for the jury to determine." ^"^ While this is the rule in some courts, yet the weight of authority, both court decisions and text-writers, is to the effect as stated heretofore. It will be seen, further, that some of these decis- ions were rendered in cases where the messages were written out by the sendee on paper other than on the blank forms furnished by the company, but were later attached to these forms by the operator. ^^"^ § 413. Special contracts — not applicable. The rule first stated, we think, should not be applicable where the contract is special, or one which has been but recently adopted by the company, when its purpose is to exempt it from some of its com- mon-law liabilities. ^^^ In these instances the sender should be spec- '" Tyler v. West. U. Tel. Co., 60 111. '"In Webbe v. West. U. Tel. Co., 421, 14 Am. Eep. 38; Brown v. Eastern 169 111. 610, 48 N. E. 670, 61 Am. St. R. Co., 11 Cush. (Mass.) 97; Illinois Rep. 210, the court, said: "Some Central R. Co. v. Frankenburg, 54 111. of ' the cases seem to hold that 88, 5 Am. Rep. 92; West. U. Tel. Co. v. the printed conditions upon blank Stevenson, 128 Pa. St. 442, 15 Am. St. forms of telegraphic dispatches, in- Rep. 686, 18 Atl. 441, 5 L. R. A. 515. eluding the one in reference to ■" West. U. Tel. Co. v. Stevenson. the limit of sixty days, are mere regu- above cited. lations, and not contracts between the •"Tyler v. West. U. Tel. Co., 60 111. sender of the message and the tele- 421, 14 Am. Rep. 38, approved by 61 graph company. The force of the dis- Am. St. Rep. 209. tinction thus sought to be made lies "« Id. in the fact that, if the conditions or '"See note, 151. stipulations arc considered as mere reg- 396 TELEGKAPH AKD TELEPHONE COMPANIES. [^ 41u i;illv referred to these contracts, in order that lie may give special consideration to their terms before agreeing to them. It is a rnle in the law of contracts that the contracting parties must be equally situated, in order to consider fairly the tenns of the contract. In other words, neither should have any advantage over the other by the position held; and nothing should be given out or retained by either party, which would have the tendency to mislead the other. It would be unfair and illegal to attempt to force the terms of such a contract u}ion senders who had no knowledge of them, or who may not have had an opportunity to consider them fairly and uninflu- enced. As Avas said in the preceding section, those rules therein were binding on the sender, although he fails or is unable to read them ; but if he is unable to read special contracts on the account of his illiteracy, it is the duty of the company to inform him of their terms, or to give him special notice of them, in order that he may get others to read them for liim. These contracts and stipulations contained in the message blanks are more especially beneficial to the company, and for this reason no advantage should be taken on ac- count of its position, and no fraud, therefore, should be perpetrated on the public. § 414. Small type — not fraud. It very often becomes necessary for these stipulations to be written ill small type, otherwise, on account of the number and length of them the message blanks would be too large, cumbersome and inconvenient. Should, however, this matter be written so as to mislead the sender, but, on the other hand, the same is referred to by larger type, this will not be such an imposition or fraud as will aifect the validity of the stipulation. ^^"^ The general method by which the sender is re- ferred to these stipulations, is by a notice written out on the front part and at the bottom of the message blank, and in the following words: "Head the notice and agreement on liack." So, whenever ulations, the assent of the sender to sent of the sender must he shown in them is not necessary, hut that he order to hind liim." will be bound if they are brought home «« Wolf v. West. U. Tel. Co., 62 Pa. to his knowledge; whereas, if they are St. 83, 1 Am. Rep. 387. held to be parts of a contract, the as- § 415] COMMON LAW LIABILITIES. 397 the sender tills out one of these message blanks, he is presumed to have observed this notice and complied with its request. At the top and on the front of these blanks may also be seen notices referring the sender to certain agreements which are to be accepted by him. Then, turning to the back of these blanks, there may be seen written at the top in large letters, a notice that all the stipulations thereunder enter into and become a part of the contract for sending. There is nothing about these blank forms which would have a tendency to mi.^- lead anyone, but nearly all of them contain notices which point al- most directly to each and every stipulation, whether it be written in bold type or in other type not so large. § 415. Assent of addressee. One of the most dithcult subjects with which we have been so far confronted in this work is. Whether the assent of the addressee is necessary to make these stipulations binding on him ? This subject lias been very ably discussed both ways by the most eminent judges and textwriters, who have advanced reasons which appear unanswer- able. We shall atcmpt to set out the ideas given each way, and then endeavor to harmonize these as far as it is possible. The answer to this question depends upon the ground upon which the court bases the right of recovery. Some of the courts consider that the receiver's right to recover rests entirely upon the contract made by the sender, upon the princii)le that where two parties contract for the benefit of a third, such third party may maintain an action for the breach of the agreement in his own right.^^' Whenever it is considered in this light, it necessarily follows that the receiver can assert no rights except such as are embodied in the contract made by the sender, and he is, therefore, bound by the conditions and stipulations appearing upon the blank ujion which the message is sent, and to which the -ender has assented. ^^^ , '^■ManiiM- v. West. U. Tel. Co.. 94 i)0 Ga. 2r)4, IG S. P.. S.3 ; Sweetlaml v. reiiii. 448. Illinois, etc.. Tel. Co.. 27 Iowa 433, 1 "MVest. U. Tel. Co. v. Waxclhauui. Am. Rep. 285: Russell v. We^^t. U. Tel. 113 Ga. 1017, 3!) S. E. 443, 50 L. R. Co.. 57 Kan. 230, 45 Pao. 5!18 : Ellis v. A. 741n; Stanley v. West. U. Tel. Co.. American Tel. Co.. 13 Allen (Mass.) 02 Ga. 613. IS S. E. 1008, 44 Am. St. 22(1 : :\la>s,'njiale v. West. U. Tel. Co.. R,.]). 05: West. V. Tel. Co. v. James. 17 M<>. Aj.p. 257: Curtin v. West. U. 398 TELEGEAPII AXD TELEPHONE COMPANIES, [§ 416 § 416. Same continued — illustrations. In an action brought by the receiver of a telegram to recover dam- ages for a failure to promptly deliver the message, according to these decisions the plaintili" would be governed by the contract as made by the sender in his behalf. ^^^ In one case it was held that both the addressee and the sender were bound by the stipulations in the mes- sage blanks. ^^'^ So, it has been held that in order for the receiver to recover, he must have presented his claim in writing within the limitation. ^^^ As was said: ''The plaintiff had no cause of action independent of the contract made by the sender of the message. Hav- ing failed to present his claim within the time required by the con- tract, he has lost whatever right of action the contract gave him." ^^^ It has been held, however, that if the blank form on which the mes- sage w^as written, when delivered to the company, contained -no stip- ulations in regard to a certain time within which the claim should be presented, the addressee would not be bound by such stipulation, although this condition may have been in the message blank delivered to him.-^^^ It has also been held that, when one of these blanks con- tained a stipulation that the company would not be liable in damages beyond a certain amount for errors made in its transmission, unless the same was ordered to be repeated, the addressee was bound by this condition. In this case the message was delivered to the addressee on a blank containing the same condition, and it was shown that there was no further proof of negligence inthe sending of the message other than that resulting simply from the error. ^•^'^ The opinions, in the Tel. Co. IG Misc. (N. Y.) 347; Aiken Ga. 613, 44 Am. St. Kep. 95, 18 S. E. V. West. U. Tel. Co., 5 S. C. 358; 1008. Mania v. West. U. Tel. Co., 94 Temi. '" Manier v. West. U. Tel. Co., 94 442; West. U. Tel. Co., v. Neill, 57 Tenn. 442; Russel v. West. U. Tel. Tex. 283, 44 Am. Rep. 589; West. U. Co., 57 Kan. 230, 45 Pac. 598. Tel. Co. V. Culberson, 79 Tex. 65; See '"^Eussel v. West. U. Tel. Co., 57 note to Camp v. West. U. Tel. Co., 71 Kan. 230, 45 Pac. 598. Am. Dec. 466; Berkett V. West. U. Tel. '"West. U. Tel. Co. v. Ilinkle, 30 Co., 103 Mich. 361, 61 K. W. 645, 33 L. Tex. Civ. App. 518. R. A. 404, 50 Am. St. Rep. 374; West. '"'Ellis v. American Tel. Co., 13 Al- U. Tel. Co. V. Neel, 86 Tex. 368, 40 len 226; West. U. Tel. Co. v. Neill, 57 Am. St. Rep. 847. Tex. 283, 44 Am. Rep. 589; Sweetland 150 Id. V. Illinois, etc., Tel. Co., 27 Iowa 433, '""Stanley v. West. U. Tel. Co., 92 1 Am. Rep. 285. <^ 417] COMMON LAW LIAIilLITlES. 399 above cases, have lioen held differently in other jurisdictions, in which the courts say that the stipulation applies to the sender, and not to the addressee.*"^ ''The proposition," as was said, ''that the defendants are liable, if at all, only in case the message is repeated, as contained in the printed conditions, can be invoked only as against the sender, if against any, for it is his message, his language, that is to be transmitted, and it is only known to the receiver when deliv- ered. He is to be g-uided or informed by what is delivered to him, and he has no opportunity to agree upon any such condition before delivery." '^"^ § 417. Same continued — actions in tort. Some of the authorities maintain that the right of action which rests in the addressee of a telegram, to recover for the negligence of the company, does not arise out of the contract made between the sender and the company, nor out of the contract at all, but for a tort, that is, for a breach of public duty on the part of the com- pany. ^^'^ In England, the doctrine is that the receiver of a telegraphic message cannot sue the telegraph company on the ground that the obligation of the company springs entirely from the contract, and that the contract for the transmission of the message is with the sender of it.^°^ This doctrine, however, has never prevailed in the United States, but here it is held by all courts, that the receiver of a message may maintain an action against the company for a breach of the latter's public duty, or an action on tort.^^^ In those juris- dictions where the rule is that the receiver can only maintain his ac- tion on tort, it is universally held that the stipulations contained in the original blank or contract are not binding upon the addressee and do not affect his right of action.^' ° Under this doctrine, the ad- '«Tobin V. West. U. Tel. Co., 140 111. 248, 21 N. E. 4, 15 Am. St. Rep. Pa. St. 375, 20 Atl. 324, 28 Am. St. 109; West. U. Tel. Co. v. Fenton, 52 Rep. 802; New York, c-tc, Tel. Co. v. Ind. 1; West. U. Tel. Co. v. [McKibbin, Dryburg, 35 Pa. St. 298, 78 Am. Dec. 114 Ind. 511. 338. »«nVest. U. Tel. Co. v. Dubois, 128 "•La Grange v. Southwestern Tel. 111. 248, 15 Am. St. Rep. 110, 21 N. Co., 25 La. Ann. 383. See also Tyler E. 4. V. West. U. Tel. Co., 60 111. 421, 14 '«» Id. Am. Rep. 38. '"See note 167. 1" West. U. Tol. Co. V. Dubois, 128 rtOO TELEGRAPH a:^D TELEPHONE COMPANIES. [§ 4l7 dressee is not bouiul hy the stipulation in these bhmks, where it is required that the claim must be presented in writing within a speci- fied time.^"^ jSTeither will the addressee's right of action be affected h\ a non-compliance Avith the stipulation, wherein it is required that, in order to avoid mistakes in the transmission, all messages should be ordered to be repeated ; otherwise, the company will not be liable in damages beyond a certain amount. ^''^- It has been said by these courts that, although these companies endeavor to incorporate the stipulations upon their blanks into the message as delivered, they are of no effect upon the receiver of the message, under this rule — considering him as not a party to the contract and whose only right is to sue in tort — for the reason, that he does not sign the message; and unless it can be shown that such stipulations were brought to his notice and assented to by him, he is not bound thereby. ^'^^ § 418. The correct view as considered. Whenever the fruits and benefits of a contract made between the sender and the telegraph company flow directly and exclusively to the use of the receiver of the message, and the terms of the stipulations contained therein are not unreasonable with respect to the position in which he stands as receiver, he is bound by all the conditions of such contract just as the sender would be if the latter were receiv- ing the benefits of such a contract. We do not mean to say, however, by this, that the receiver may not sometime sue the company in tort; '"^ West. 17. Tel. Co. v. McKibbin, 114 form its iniblie duty of transmitting Ind. 511. Croswell, in his work on dispatch'.'S promptly and with due care, the Law Relating to Electricity, Sec. and has nothing to do with the special 557, says: "In actions of tort by the contract between the sender and the addressee of a message, it is difficult telegraph company, and, therefore, to see how any limit of time, in which wliatever stipulations the sender may claims must be made against a tele- make with the telegraph company graph company for damages occasioned should not bind the addressee." by error or negligence in sending the ''- West. U. Tel. Co. v. Fenton, 52 message, can aflect the plaintiff. In ind. 1. .such cases, the plaintiff has no privity '" West. U. Tel. Co. v. Lycan, 60 111. with the sender of the message, but App. 124; \Vebbe v. West. U. Tel. Co., sues solely for the breach of duty by 1(59 111. 610, 61 Am. St. Rep. 207, 48 the telegraph company, i. e., the fail- N. E. 670. ure of the telegraph company to per- <§, 418] COMMON LAW LIABILITIES. 401 for there may be instances where the addressee should sue the com- pany for a breach of its public duties. But as a general rule, he should sue for the breach of contract made by the sender and the company for his benefit. It follows, therefore, that the receiver is bound by the terras of the stipulations contained in the contract of sending, and it is presumed that the receiver, at the time the sender attaches his sii>-nuture to the message, gives his assent to the stipula- tions therein and is bound from that time. It has been expressly held in one case, that the sender, under such circumstances, acts as agent for the receiver, and that the latter, as principal, is bound by all the acts of his agent which fall within the scope of his express or apparent authority. ^'^ In order, however, to bind the receiver by nil the conditions of the contract, made by the sender in his behalf, they must be reasonable to him as receiver. As will be clearly seen, the terms of the stipulations contained in these blanks may be rea- sonable and therefore binding, if considered to have been made by the sender in his own behalf; but they would not be, if viewed in the light that they were entered into by him for the exclusive bene- fit of the addressee. If, however, the addressee knows of the con- tract about to be made, or has notice that the message has been sent, the reasonableness of the stipulations would be the same, both to the addressee and the sender; but this is not alwa^'s the case, and, of course, this fact must be considered in determining the reasonable- ness and binding effect of them upon the addressee. For instance, if a message which contains business matter for the exclusive bene- fit of the addressee was delivered to the company without the former's knowledge, but was never sent, whereby he suffers great injury, he will not be precluded from recovering such loss, although the claim, as required in the contract for sending, was not presented to the company within the limitations. If he should have had notice of such message having been sent before the expiration of the limitation, a claim should have been presented if there remained a reasonable time to have done so by reasonable diligence on his part.^'^ The same reasons would be applicable if the message had been sent but '"* Coit V. West. U. Tel. Co., 130 Cal. "» West. U. Tel. Co. v. Phillip?. 2 657, 63 Pac. 83, 80 Am. St. Rep. 53 Tex. Civ. App. 608. L. R. A. 678. T. & T.— 26 402 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 41S never delivered. ^''^' Therefore, it will be seen that these rules may be reasonable with respect to the sender, but at the same time may not with respect to the addressee. It may be said, however, that if the addressee has received notice by letter or otherwise from the sender that the contract of sending the message had been made, and that this laiowledge had been ascertained within a sufficient time to have given him a reasonable opportunity to have complied with the terms of the stipulations, he will be bound by them. § 419. Assent — proof of — what amounts to. The opportunity of the addressee to know and be familiar with the regulations of the company are primary facts and do not create any conclusive presumption of knowledge, no matter what the opportu- nity was.^'^'^ In a case on this subject, the company showed that for a long time it had required messages to be written on a blank con- taining these stipulations. The plaintiff admitted that he was famil- iar with the appearance of the blanks, had frequently used them for ^vriting messages, and that a parcel of them was always on his office desk, but averred that he had never read the stipulation and had no knowledge of its terms. It was held that, in the absence of evidence that the terms of the stipulation were brought home to him, it was proper to exclude the blanks from the consideration of the jury.^'^^ It will be seen, in reading this case, that the message was written out on a blank piece of paper, and in this manner delivered to the company. Of course, if the message had been written on one of the message blanks containing these stipulations, the plaintiff, as said at another place, would be bound by all the conditions therein, al- though he failed to read them or even had an opportunity to do so. We think that a correct and proper conclusion was arrived at in the above case, and that it is not repugnant to the decision in the case where the message was written on a mutilated blank of the com- '"Sherrill v. West. U. Tel. Co., 109 207; Merchants' Dispatch, etc., Co. v. N. C. 527, 14 S. E. 94; Herron v. Moore, 88 111. 136, 30 Am. Eep. West. U. Tel. Co., 90 Iowa 129, 57 N. 541; Pearsall v. West. U. Tel. Co., W. 696. 124 N. Y. 256, 21 Am. St. Eep. 662. ^"Webbe v. West. U. Tel. Co., 169 "'Pearsall v. West. U. Tel. Co., 124 111. 610, 48 N. E. 670, 61 Am. St. Rep. X. Y. 250, 21 Am. St. Rep. 662. i^ 420] COMMON LAW LIABILITIKS. 4:0'^ \}anj^~^ In this latter case, the opportunity of the plaintiff to know the conditions contained in the message blanks were about the same as that of the plaintiff in the above case. But in the first place, there was some doubt as to whether the message blank was mutilated at the time the message was written thereon, but even though it may have been mutilated at this time, we think the court had a coi-rect view of the case in holding that the plaintiif's opportunity was suffi- cient to give him knowledge of the terms of the stipulation. Part, if not all, of the stipulations were on this message blank, and if part of these were torn off or mutilated, this fact would not of itself de- stroy the effect of the stipulation ; for that part which remained on the blank, would be, if necessary, sufficient to put him on inquiry. We do not think that either of these cases would be affected by the fact that the plaintiff was a stockholder of the company, for it is not presumed that stockholders have any better knowledge of the regu- lations adopted by the directors of the company than any other per- son.^80 § 420. Stipulation posted in company's office — not binding. Occasionally telegraph companies may see fit to post some of their regulations in conspicuous places in their offices. It has been held that, when this has been done, these regulations enter into and be- come a part of the contract for sending. ^^^ But it is almost univers- ally held that they do not any more become binding on the sender than other stipulations about which he is absolutely ignorant. ^^- There is no doubt but that the latter holding is the correct view of the subject, aside from the fact that it is not a contract assented to. It would be very unwise to give these companies the power to bind anyone in their business with such regulations, because it would have the tendency to give them room to perpetrate fraud or impc^sition upon their patrons. '""Kilev V. West. U. Tel. Co., 109 X. Tel. Co., IS Md. 341, SI Am. Dec. 607. V. 231. >»=Carland v. West. U. Tel. Co., 118 '«*Pearsall v. West. U. Tel. Co., 124 Mich. 3C9, 76 N. W. 762, 74 Am. St. N. Y. 250, 21 Am. St. Kep. 662. Rep. 394, 43 L. R. A. 280. "' Birney v. New York, etc.. Printing 404 TELEGKAPH AND TELEPHONE COMPANIES. [<§, 421 § 421. Messages written on blanks of another company — binding. It has been held that if the message has been written, through mis- take, on the blanks of another company, whose terms therein are substantially the same as those of the first company, the plaintiff will be bound by such stipulations. ^^^ It may be said that the contract for sending was not made with the first company, since its name was not on the message blank, biit this cannot be asserted with any effec- tive defense. A sound principle of the law of contracts is, that if the agent, through mistake of any kind, writes his principals name in- correctly, or even uses that of another, but it is intended by him to write his principal's name; or, if the contract is made for him and the same is known by the other party, but another's name is inserted instead of his, the contract will be binding, although it shows on its face that it was made between the other parties. In such cases, where the contracting parties are in dispute as to the real parties, parol evi- dence may be admitted to show this fact. The same rule is applicable here. So, when the message blank of another company should, by mistake, be mingled with those of the contracting company; or, if this blank is used for the message sent, but the contract is with the company in whose possession they have become carelessly throAvn, the stipulations and conditions contained therein, which are substan- tially the same as those on its own blanks, will be binding on the ]>a- tron. It has not been decided, to our knowledge, as to whether any stipulation, other than such as are substantially the same as those contained in the company's own foi-ms, would be binding on the sender, but we think that only such as are substantially the same would be binding; nor do Ave think that stipulations contained in these forms, used by mistake and not in those of the contracting company, would be binding. All the regulations of these companies must be adopted by its proper officers, at legally-called meetings for that purpose. Stipulations in other companies' forms, differing sub- stantially from those of the contracting company, or which are not ''MA'est. U. Tel. Co. v. Waxelbaum, 519; Clement v. West. U. Tel. Co.. 137 113 Ga. 1017, 56 L. R. A. 741n, 39 Mass. 463; Young v. West. U. Tel. Co., S. E. 443; United States Tel. Co. v. 65 S. C. 9.3, 43 S. E. 448. Gildersleeve, 29 Md. 232, 96 Am. Dec. <^ 422] COM-MOX LAW LI Uill.I TIES. ^OTi contained therein at all, have not been adopted in any manner by this com]iany, and cannot, therefore, lie enforced 1)V or aiiain^^t it. § 422. Same continued — knowledge of company's stipulations. it must be remenihered^ however, that where ulher eijinpaiiies forms are used, the sender must have had knowledge of the terms of the conditions containecl in those of the company, before they be- come binding on liim;^^"* fOr, almost the same rule, in regard to mes- sages being on blank paper, is applicable in these cases. If the con- ditions on these blanks were identically the same in every respect, we think this would not be the case ; but if they arc similar in nature, the comjjliance of each only being different, the knowledge which the sender may have of those contained in one could not be asserted against him in the use of the other. For instance, the stipulation in regard to the time within which claims must be presented to the com- pany may, and generally does, vary in the different forms, as to the length of the limitation. Some of these stipulations require the claims to be presented within ninety days after the message shall have been filed for transmission, and others limit the time to sixty and some to thirty and others to twenty days. So it will be seen that the nature of these conditions is similar, yet the compliance of each is different ; and a knowledge of the condition of the terms of a stip- ulation, in tliis resi)ect, could not be ascertained from the stipulation contained in a blank form not used by the company. The sender would not, however, be placed in the same position if he should write the message on a blank piece of paper. In using the forms of another company he would be referred (and it is presumed that he followed (»ut this reference) to sufficient evidence on the face of the message blank which would ])nt liini on inquiry to ascertain the true facts of the condition of terms in the company's blank; but of this evi- dence he is de])rived when merely using the blank ]iaper. We think that this rule sliouM be more partic-uhirly aiq>lied to cases where it is known by the sender that the blanks are those of another com- ])any; and yet t1ii> is not absolutely necessary to make it applicable. ""'Pearsall v. West. U. Tel. Co.. 124 442, 5 L. Yl. A. 515, 15 Am. St. Rep. X. Y. 25.;. 21 Am. St. Rop. Gf.2 : West. CST ; West. I'. Tel. Co. v. liinkle, 3 V. Tel. Co. V. Stevenson. 120 Pa. St. IVx. Civ. App. 518. 406 TELEGRAPH AND TELEPHONE COMPANIES. [^ 422 It is generally the rule of these companies that its own blanks shall be used by parties employing their services, and that the operators shall not accept any message written on other than their own blanks ; this will be the case although the sender was ignorant of such a rule.^s5 § 423. Messages delivered to company by telephone or verbally. As has been said, the sender must have had actual notice of the terms of the stipulations of the company, in order for them to be binding on him, and it is presumed that he had this notice when he attached his signature to the message blanks. It is only when these forms are not used that this question is generally litigated. For in- stance, this question has come up where the message was accepted by the company by telephone, or when orally given to its operator. It has been held in these cases that if the sender has actual knowledge of the terms of these stipulations, at the time the message was so given to the company, he will be bound by them ; and that this knowledge is a question of fact to be determined by the jury from the evidence adduced on this point. ^^^ It was attempted to be shown in some of these cases that the company's operator, when receiving the message over a telephone, was acting as agent, in that particular matter, for the sender, and that the operator's knowledge of the terms of these conditions was knowledge of the sender; but this was held not to be the case.^^''' The question has also come up in such eases as to wheth- er it was the object of the company to relieve the sender of these stip- ulations; but it was also held that this was a question of fact to be left to a jury.^^^ § 424. Principal bound by the knowledge of the agent. It is a general law of agency that the principal is bound by all the acts of his agent which fall either within the scope of his express authority or that of his apparent authority; and any knowledge of '<^ Beasley v. West. U. Tel. Co., 39 R. A. 280, 76 N. W. 762. Fed. 181 ; West. U. Tel. Co. v. Arwine, ^ Id. .S Tex. Civ. App. 156, 22 S. W. 105. "'West. U. Tel. Co. v. Stevenson, ^Garland v. West. U. Tel. Co., 118 128 Pa. St. 442, 18 Atl. 441, 15 Am. Mich. .360, 74 Am. St. Rep. 394, 43 L. St. Rep. 687, 5 L. R. A. 515. <§, 424] COMMON LAW LIABILITIES. 407 facts pertaining to such acts coining to the agent while exercising this authority, is presumed to have been known by the principal, and he is therefore bound by such knowledge. It therefore follows that, if the sender of a message is acting for the receiver, as his agent and he has knowledge of the terms or conditions contained in the message blanks, the receiver is bound by all these stipulations, although he, himself, was ignorant of thera.^^^ There is an exception to this rule, however, as said elsewhere, brought about by the position in which the receiver may stand. For instance, the sender may be acting as the receiver's agent in this particular matter, without the latter having any knowledge of this fact, and the message may be delivered to the company but never transmitted ; or, the company may fail to deliver it after it has been transmitted. Unless the receiver knew these facts he would not be bound by these stipulations. If the agent acts on any occasion, in the capacity of such, although it is for that parti- cular matter, and he knows of the terms of these stipulations, the principal will be bound by them. So, where the operator fills out one of these blanks at the request of the sender, the latter, upon attaching his signature thereto, is bound by the stipulations, notwithstanding his failure to notice them ;^^*' or, if the message is written out by tin.' sender on a blank piece of paper, and given in this manner to the operator who transcribes it on these forms and reads the stipulation therein to the sender without his objecting to them, he will be bound by them.^^^ The operator acts in these cases in the capacity of agent for the sender. It is otherwise, however, if the sender does not see and does not sign or otherwise agree to these conditions. ^^^ And if th message is written on blank paper by the sender and delivered in this style to the operator, who attaches it to one of these message blanks without the authority of the sender, the latter will not be "•Clement v. West. U. Tel. Co., 137 «^ West. U. Tel. Co. v. Phillips, 2 Mass. 463; Coit v. West. U. Tel. Co.. Tex. Civ. App. 608, 21 S. W. 638. 130 Cal. 057, SO Am. St. Rep. 153, 53 '"West. U. Tel. Co. v. Uvalde Xa- L. E..A. 678, 63 Pac. 83. tional Bank, 72 S. W. (Tex.) 232: '•*West. U. Tel. Co. v. Edsall, 03 Beasley v. West. U. Tel. Co., 39 Fed. Tex. 668; Gulf, etc., R. Co. v. G«er, 5 181; West. U. Tel. Co. v. Powell. 04 Tex. Civ. App. 349, 24 S. W. 86; West. Va. 268, 26 S. E. 826. U. Tel. Co. V. Henderson, 89 Ala. 510, IS Am. St. Rop. 148, 7 So. 419. 408 TELEGRAPH AND TELEPHONE COMPANIES. [§ 424 boinid by these stipulations, if lie bad no knowledg-c of tbem \'^^^ and it is bis duty, when the company attempts to bind bini by tbeir terms, to plead and prove non est factum.^^^ It sbould be borne in mind that if the plaintiff ascertains a knowledge of the terms of the stip- ulations or regulations of the company, as they appear on the message blanks furnished by them through his agent or otherwise, and he as- sents to them, he will be bound ; but this knowledge must be brought to the mind of the plaintiff or his agent, while acting as such to the knowledge of the former. '*' Harris v. West. U. Tel. Co., 121 (Tex.) 78; Anderson v. West. U. Tel. Ala. 519, 25 So. 910, 77 Am. St. Rep. Co., 84 Tex. 17, 19 S. W. 285. 70; West. U. Tel. Co. v. Shumate, 2 '^ West. U. Tel. Co. v. Hayes, 63 S. Tex. Civ. App. 429, 21 S. W. 109; W. (Tex.) 171. West. U. Tel. Co. v. Pruett, 75 S. W. CHAPTER XVIII. LIABILITY OF COMPANIES IN PARTICULAR CLASSES OF CASES— CONTRACT TO FURNISH MARKET REPORTS AND OTHER NEWS. § 425. In general. 426. Market reports, etc. 427. Same continued— organized for collecting news. 428. Gambling transactions— messages in regard to. 429. Indecent language not bound to accept. 430. Liable civilly or criminally- indecent language. 431. Libel— liable for. 432. Interstate messages. 433. Recover of statutory penalty— not applicable. 434. Sunday Messages— no duty to send. 435. Sunday contracts— void. 436. Same continued— matters of necessity or charity. 437. Same continued— illustrations. 438. Statutory penalty— applicable. 439. Action of tort— rule not applicable. 440 Forged and fraudulent messages. 44l' Same continued-negligence must be proximate cause. 442. Same continued-operator author of forged message. 443 Same continued— sub-agent, forgery of. 444. Same continued— no bar to action ex delicto. 445. Amount of damages. 446. Connecting lines-passage over-initial line-general rule. 447. Same continued— English rule. 448 Accept all the charges— rule not changed. 449 Initial company-diligence to deliver to other Ime. 450. Same continued— telephone-same rule applied. 451. Special contract— may become liable by. 452 Same continued— who may contract. 453' Where statutes make the initial carrier liable. 454. Actions on extra-terminal contracts-against whom. 455. Connecting lines. 456. Same continued-duty to accept messages tendered. 457. Same continued — duty of. 458. Liability of connecting lines. 459 Burden of proof. 460' Partnership arrangements between the several Imes. 461. Effect of contract of sending on connecting lines. 462. Liability for defaults of common agent. (400) 410 TELEGRAPH AND TELEPHONE COMPANIES. [§ 425 463. Sender's right to select route. 464. Same continued — result of bad selection — initial company- not liable. 465. Same continued — exact extra fee or charges. 466. Liability of companies between themselves — actions. § 425. In general. The duty of telegraph companies, with respect to the nature of in- telligence to be sent, is to transmit promptly and correctly only such intelligence as is general, and that which they are employed to trans- mit ; it is not their duty to collect and transmit news, unless a special contract is made to that effect. These companies may, however, enter into a special contract, for a consideration greater in amount than that charged for their general services, to insure the correctness of the message.^ These contracts may be of two kinds, and in determining the liability of the company this fact should be considered, since they may be liable under one and not under the other. For instance, the company may contract to insure a safe transmission of messages as delivered to it; or, it may insure the correctness of the intelligence sent. In other words, these companies may contract to insure the correctness in the transmission of a message, and assume all hazards with which it may come in contact, which gives them the qualities of a common carrier; or, they may assume, under a special contract, even a greater responsibility than that of merely insuring a correct transmission, by contracting to transmit the correctness of the intel- ligence. Under the latter contract, they must not only transmit ac- curately and correctly, but the other contracting party is guaranteed 'Good.sell V. West. U. Tel. Co., 130 places for those named; and, if the re- N. Y. 430; West. U. Tel. Co. v. Ste- ports were transmitted to "any great- vcnson, 128 Pa. St. 442, 18 Atl. 441, er number of places" than were enum- 15 Am. St. Rep. 687, 5 L. R. A. 515. erated in such schedule, then an addi- In the first case, it appeared that a tional payment should be made. The telegraph company contracted to deliv- schedule contained 38 difTerent places, er certain news reports of an average It was held that the company was number of words per day, one-third to bound, without additional payment, to be transmitted in the day time and transmit the day reports to 38 places two-thirds at night, to all the places and the night reports to 38 places, al- named in a certain schedule, for a though the latter places were different gross sum per month, the other party from the former, to have the right to substitute other ^ 427] LIABILITY IN PAKTICULAR CASES. 411 or insured that the intelligence was correctly collected or received by the company, before its transmission ;- and, it is the latter kind we next discuss. § 426. Market reports, etc. Contracts whereby telegraph companies agree to insure the correct- ness of the intelligence sent are generally such as are made to fur- nish market reports, stock quotations and other like news. In such contracts as these., it becomes the duty of these companies to collect the news and then to transmit it to the other party ;and an error made in either part of this transaction, whereby the other party suffers, will render the company liable for damages. These contracts are extraordinary in their nature, and become much greater in their per- formance than those ordinarily made in the general course of these companies' public duties. It follows, of course, that the consideration given in return for the extra hazard assumed should be much gi-eater and it seems that the contracts should be more strictly construed than those made in the ordinary manner. The position has been taken in some of the cases arising out of these contracts, that these companies should not be liable where the message w^as incorrectly given to them, and which was no fault on their part; but it is generally held that they become as liable for an error made in one part of the transaction as that made in the other; in fact, the receiving or collection of the news is the more responsible part of their undertaking. So, they should be held for errors made in the collection of the news independ- ent of the question as to how the error was made.^ § 427. Same continued — organized for collecting news. In some instances, telegraph companies are organized for the ex- press purpose of collecting news, but when this is the case they are ^ Gray on Tel. 31. indicator in their office in New York "Gray on Tel. 31; Turner v. Hawk- from which they received their infor- eye Tel. Co., 41 Iowa 458, 20 Am. Rep. mation. It was held that this did not 605; Bank of New Orleans v. West. release them from liability, since they U. Tel. Co., 27 La. Ann. 49. In this had contracted to deliver to plaintitls last case the company's defense was correct information which they should that the error in the reports was cans- have obtained, without relying wholly ("U bv the workiii!.' of the "old stock (in the indicator. 412 TELEGKAl'II AXJ) TEl^Kl'lIOXE COMPAXIES. [§ 427 possessed of the sniiie general poAvers, and snl)j('('t to the same obli- gations, as oi'dinarv telegraph companies. Thns, they may adopt and enforce reasonable rules and reiziilations with res])ect to the use of their instrnments, and provide that the messages shall not be given out to non-subscribers. It is generally i)rovided in these contracts made with subscribers, that "these reports are furnished to subscrib- ers for their own private use in their own business exclusively. It is stipulated that subscribers will not sell or give up copies of the reports in whole or in part, nor permit any outside party to copy them for use or publication. Under this rule, subscriptions by one party for the benefit of himself and others at their joint expense will not be received."^ It has been held that these stipulations were rea- sonable and did not conflict with any duty the company owed to the public. And it has been further held that if the subscriber should furnish such report to another firm of which he was a member, the company would be justified in removing its machine from his office.^ These companies are exercising a public function and must therefore perfomi such duties as are imposed upon other orporations of a public character. They cannot, therefore, discriminate between their subscribers, but are under obligation to discharge their duties to one the same as to an other, and may be enjoined from refusing to con- tinue sei^ving a subscriber who has complied with all their reasonable regulations.^ They are not, however, under any obligation to fur- nish these rej^orts to a gambling place, although they may have con- tracted to do so, as they can be under no obligation to further an il- legal undertaking.'^ * Shepard v. Gold., etc., Tel. Co., 38 l)nsiiioss, and Avithoiit the prompt sup- Hun (N. Y.) 338. .^ ])ly of which, his business was a fail- " Id. mo. Can the appellee be compelled to 'Friedman v. Gold., etc., Tel. Co., to continue the supply? We think not. 32 TTun (X. Y.) 4; Smith v. Gold, Xnt upon the ground that the appel- etc, Tel. Co., 42 Hun (N. Y.) 454; Ice is the innocent victim of an il- Metropolitan, etc., Ex. v. Mut. U. Tel. le" West. U. Tel. Co. v. Ferguson, 57 not be reject^'d on account of its sub- Ind. 495. 416 TELEGRAPH A^T) TELEPHOI^E COMPAXIES, ["§. 420 ble for a failure to transmit this message, on the ground that its ob- ject was indecent, in that its pui*pose was to have prostitutes attend the fair; but the court held that the language of the message was ambiguous and that the plaintiff should have had the benefit of the ambiguity.-^" The amount of damages to be recovered for an eiTor made in the transmission of such messages is the same as that to be recovered in a similar error made in a message relating to "fu- tures,"^^ and is founded on the groimd that the message is for an un- lawful purpose, or an attempt to accomplish something in an illegal manner. § 430. Liable civilly or criminally — indecent language. It is not the object of the law to impose upon these companies the duty to transmit any message which would subject them to a civil or criminal action, and any message whose object is to accomplish such, may be rejected by the company. ^^ But it is not every message whose object is illegal which will subject the company to a liability ; and, if there is any doubt of its illegal purpose, the doubt must be con- strued in favor of the company.^^ Thus, it has been held that these companies will not be held indictable, as being guilty of maintain- ing a common nuisance, for transmitting information concerning horse races to a pool room, although it appears that the place is re- sorted to by idle and evil-disposed persons, for selling pools and bet- ting on races, to the common annoyance of all good citizens of the neighborhood.^^ "See notes 15 and 16 for eases. able offense at common law, and one ^* See § 428. who leases a house with the knowl- "West. U. Tel. Co. v. Ferguson, 57 edge that it will be used for that pur- Ind. 495. In Pugh v. City, etc., Tel. pose is subject to an indictment: 9 Co., 27 Alb. L. J. 163, it was held Am. & Eng. Ency. of Law, 2 Ed. 527. that a telephone company may provide A telephone company could refuse to that no indecent or profane language furnish such a house with telephonic shall be used over its line and may facilities: Godwin v. Tel. Co., 136 N. refuse to serve a subscriber who uses Car. 258, 48 S. E. 636, 103 Am. St. such language in speaking throu<;li its Rep. 741, 67 L. R. A. 251. line. In this case the subscriber, being "" Gray v. West. U. Tel. Co., 87 Ga. annoyed because unable to get the num- 350, 27 Am. St. Rep. 259, 14 L. R. A. her he wished call up, said: "If you 95, 13 S. E. 562. don't get that party I Avant, you can -^ Com. v. West. U. Tel. Co., 67 S. shut up your damned old telephone." W. 59, 57 L. R. A. 614. Keeping a bawdy-house was an indict- <^ 431] LIABILITY IX PARTICULAU CASES. 417 § 431. Libel— liable for. Any means whereby a writing, wliicii is libelous per se, is commun- icated to the party injured, is a publication of the libel.^^ So, if a message, which is libelous per se, or if it clearly shows on its face, statements which would be understood by a man of ordinary intelli- gence as being a sufficient gTOund to lay the Avriter or sender liable for an action of libel, and the company transmits such a message, it will be guilty of a publication of the libel and will be just as liable for damages arising out of it as the writer of the message would be. Thus, where a company accepted and transmitted a message directed to the plaintiff, reading: "Slippery Sam, your name is pants," and signed, "Many Republicans," it was held that the message sufficiently indicated to the company its libelous character, and that plaintiff was entitled to recover damages for the libel.-^ And it was held that the company was giiilty of publishing a libel by transmitting a message stating that "the citizens of Wisconsin demonstrated you are an un- scrupulous liar," and was liable for all damages arising out of such publication.-^ It is generally hold that the libelous matter directed to the party defamed, without having been seen or heard by any other person, will not support a civil action,-^ but this rule cannot -^Alabama, etc., R. Co. v. Brooks, 69 tating it, is a publication of its con- Miss. 1G8, 13 So. 847, 30 Am. St. Rep. tents, so as to entitle the person to 528; Adams v. LaAvson, 17 Gratt 250. Avhoni it is addressed to maintain ei- 94 Am. Dec. 455; Miller v. Butler, tlier libel or slander upon it, although Cush. 71, 52 Am. Dec. 768; Fogg v. there is no communication of its con- Boston, etc., R. Co., 148 Mass. 513, 20 tents to any other person: Gambrili N. E. 109, 12 Am. St. Rep. 583; Even- v. Schooley, 93 Md. 48, 48 Atl. 730, ing Journal Assn. v. ]\IcDermott, 44 86 Am. St. Rep. 420, 52 L. R. A. 87; N. J. L. 430, 43 Am. Rep. 392; John- ilonson v. Lathrop, 96 Wis. 386, 71 N. son V. St. Louis Dispatch Co., 65 :Mo. ^^'. 596. 65 Am. St. Rep. 54. 539, 27 Am. Rep. 293; Maynard v. "Peterson v. West. U. Tel. Co., 65 Fireman's Fund Ins. Co., 34 Cal. 48. Minn. 18, 33 L. R. A. 302, 72 Minn. 91 Am. Dec. 672. The publication of 41, 40 L. R. A. 661. 71 Am. St. Rep. a libelous letter is complete when it 461, 75 Minn. 3(iS. 74 Am. St. Rep. is received and read: McCarlie v. At- 502, 43 L. R. A. 581. kinson, 77 Miss. 594, 27 So. 641, 78 -* :\Ionson v. Lathrop, 96 Wis. 386, Am. St. Rep. 540. The dictation of a 65 Am. St. Rep. 54, 71 N. W. 96. libelous letter to a confidential short- " Spails v. Poundstone, 87 Ind. 522, hand writer and the copying of it by 44 Am. Rep. 773; Wilcox v. Moon, 64 him on a typewriting machine, after Vt. 450. 33 Am. St. Rep. 936, 24 Atl. which it is signed by the person die- 244. 15 L. R. A. 700. T. & T.— 27 418 TELEGRAPH A>;D TELEPIIOXE COMPANIES. [§ 431 apply here, for, if a message is sent to th(^ pnrtv defamed bj telegi-aph the contents of the telegTam are necessarily communicated to all the clerks through whose hands it passes.-*' If, however, the message is couched in such language as an ordinal- person, ignorant of the cir- cumstances and knowing nothing of the parties, would not suppose it to be defamatory, the company w^ould not be liable,^^ unless it had been informed of the character of the message. Under such circum- stances, the message may be libelous, and one for which the sender would be liable, yet if the company has no information of its char- acter, or has no means by which it may ascertain this fact, it will not be liable. ^^ § 432. Interstate messages. A great many cases have grown out of suits brought to recover damages for errors made in the transmission of messages which are sent from one state into another.-^ A question which has presented itself in such cases is. Whether an action can be maintained for a breach of the company's common-law duty to use proper care to se- cure a correct and prompt transmission and delivery, where the mes- sage falls within the cases of interstate messages ? This question has been answered by an almost unanimity of decisions in the affirma- tive. It has been held that the sender may recover damages for such breach, although it happened in the state other than that from which the message was sent.^^^ The receiver of the message may, as held, maintain the suit also, with respect to a civil action, and it does not matter where the breach occurred.^^ The contract for sending the -^ Peterson v. West. U. Tel. Co., cited Richmond, 8 Atl. (Pa.) 171; Smith v. in note 23. We.st. U. Tel. Co., 83 Ky. 104, 4 Am. " Nye V. West. U. Tel. Co., 104 Fed. St. Rep. 126. See also Kemp v. West. 628; Stockhan v. West. U. Tel. Co., U. Tel. Co., 28 Neb. 661, 26 Am. St. 10 Kan. App. 580, 63 Pac. 658. Rep. 363, 44 N. W. 1064. ^»Weir V. Hoss, 6 Ala. 881; Mayne =" Id. V. Fletcher, 9 Barn. & Co., 382; Park ■'Young v. West. U. Tel. Co., 107 V. Detroit Free Press Co., 72 Mich. 560, N. C. 370, 11 S. E. 1044, 22 Am. 1 L. R. A. 59!), 16 Am. St. Rep. 544. St. Rei). 883, 9 L. R. A. 669n; Wads- -MVest. U. Tel. Co. v. Reynolds, 77 worth v. West. U. Tel. Co., 86 Tenn. Vt. 173, 46 Am. Rep. 715; Dougherty 605, (i Am. St. Rep. 864. Compare V. Am. U. Tel. Co., 75 Ala. 168, 51 Carnahan v. West. U. Tel. Co., 89 Ind. Am. Rep. 435; West. U. Tel. Co. v. .j26, 46 Am. Rep. 175. <^ 433] LIAIJILITV I.N I'AKTICLLAlt CASES. 410 message was made in the state from which it was sent, and there the action should be maintained irrepective of the place or places where the breach occurred. '"It is wholly immaterial," as was said, "where the act or omission occurred, whether at the office where it was re- ceived, at some intermediate point, or at the office to which it was sent. The contract cannot in such case be said to have been violated at one place any more than at another. It is violated everywhere because it is performed nowhere."^- This rule would only apply where the action was to recover damages for a breach of its public duties, or on an action of tort. And it seems that the fact that a statute exists which is declaratory of the common-law duty, and which further provides that the company shall not contract to limit its liability for the consequences of its negligence, does not create a different case or necessitate a different rule of law.^^ § 433. Recover of statutory penalty — not applicable. The above rule is different when the action is to recover a statutory penalty imposed on these companies for a violation of their duties. It is a general law that penal statutes cannot be enforced beyond the state creating them, and this rule is applicable in the present in- stance.^^ While they are enforcible against these companies when the violation of the statute occurs within its limits, notwithstanding the fact that the message falls under the class of interstate messa- ges,^ ^ yet they cannot be eifective beyond the state boundaries. One of the reasons for holding to such a rule is, that to enforce such would necessarily involve these companies in endless difficulty, in that they would be punished in different ways for the same wrong. As was "West. U. Tel. Co. y. Hamilton, 50 ■'-■Thus where the company fails to Ind. 181. This case is overruled by deliver a telegram, tlie penalty may be the Supreme Court of the United lecovered, although the message was States in AVest. U. Tel. Co. v. Pendle- sent from a point without the state: ton, 122 U. S. 347. West. U. Tel. Co. v. James, 90 Ga. *='Kemp V. West. U. Tel. Co., 28 Neb. 254. So, Where there is a refusal or 661, 44 X. W. 1064, 26 Am. St. Rep. failure to transmit, the sender may 363. enforce the penalty, although the point ^Alexander v. West. U. Tel. Co.. 66 or destination of the message is in an- Miss. 161, 5 So. 397, 14 Am. St. Rep. other state: Connell v. West. U. Tel. 556, 3 L. R. A. 71; West. U. Tel. Co. Co., 108 Mo. 459, 18 S. W. 883. V Pendleton. 122 U. S. 347. 4:20 TELEGRAPH AND TELEPHONE COMPAiS'IES. [<§> 433 ably said : "Unless we adopt the view that the statute only applies to contracts made in this state, we shall be involved in endless difficulty. Any other rule would make the telegraph company amenable to different punishments for the same wrong, for it is quite clear that if the wrong is punishable by the laws of the place where the contract is made, it would be no answer to a prosecution there to plead a judg- ment rendered in another forum under a different law^" ^*^ If, how- ever, as often is the case, the initial and terminal points of the line are within the same state, but the message is circuitously sent through another i)i order to reach its destination, the message will not be classed as an interstate message and so governed by the laws appli- cable to such,^^ § 434. Sunday messages — no duty to send. As has been said at another place, telegraph companies may adopt and enforce reasonable regulations with respect to their office hours, and this embraces the right to close their offices on Sundays when the locality of the place does not necessitate them to do otherwise. With exception of M'orks of necessity, it is not the duty of any institution, possessed with the principles of a public character to discharge any of its public duties on these days. So, it follows, that telegraph com- panies are not under any obligation to perform any of their common- law duties on Sundays, unless the performance of same is a matter of necessity. Of course, some of their offices are kept open on Sun- days, especially where they are at places of some size,^^ in order that they may transmit messages concerning matters of necessity, and about other business matters which they desire to look after. For the reason that some of their offices may be closed on Sundays, by a right acquired under such a regulation, does not prevent the agent at those places from accepting messages for transmission, yet the acceptance is. always conditional; and when this has not been removed and there has been a failure to promptly trans- mit the message, the company will not be liable. If there ^'Carnahan v. West. U. Tel. Co., 89 ^« Brown v. West. U. Tel. Co., 21 Ind. 526, 40 Am. Rep. 175. Pac. (Utah) 988. ^ Campbell v. Chicago, etc., R. Co., 53 X. W. (Iowa) 351. § 435] LIAUII.ITY IX PARTICULAR CASES. 421 were no conditions to the acceptance of a message, har Squire v. West. U. Tel. Co., 98 ^'^ jj,jt(.}jinson on Carriers (2 Ed.), Mass. 232, 93 Am. Dec. 157. See, also, § 169; Smith & Elliott v. Mo., etc., R. Adams Ex. Co. v. Harris, 120 Ind. 73, Co., 58 Mo. App. 80. 21 N. E. 340, 7 L. R. A. 214n; Ban- "« Midland Railway v. Bromley, 17 croft V. Merchants', etc., Co., 47 Iowa Com. B. 372; Chicago, etc., R. Co. v. 262, 29 Am. Rep. 482; Cen. R., etc., Northern, etc., Co., 70 111. 217; South- Co. V. Bridger, 94 Ga. 471, 20 S. E. western, etc., Tel. Co. v. Taylor, 26 349. Tex. Civ. App. 79. ^ 465] LIABILITY IX PARTICULAE CASES. 44;j errors made beyond the terminus of its own line, and will only act as the sender's agent to engage the services of another connecting line. When this is the case, it is the right of the sender to name the route the message shall go after it reaches the terminus of the initial line. It was decided in a case on this subject, where the destination could be reached from the company's terminus by two telephone lines, that the sender had the right to indicate which line should be used, al- though it was the rule of the company that the message should be sent over the nearest line that was open, and that it was negligent in the company to use the other, in consequence of which, a delay occur- red. ^^" Should the sender neglect to exercise the right of selecting the route, or if the route selected cannot for any cause transmit the message, and the company has unsuccessfully attempted to inform the sender of this fact, it should exercise ordinary judgment in selecting a route for the sender and promptly deliver the message to this line with the instruction to forward it on to its destination. ^^^ § 464. Same continued — result of bad selection — initial com- pany — not liable. The initial company, in the absence of any partnership arrange- ment, only represents the sender in the capacity of agent so far as to the selection of the connecting route over which the message must necessarily be sent in order to reach its destination. It must comply with the instructions of the sender, and it is not liable for errors made by the latter in the way of a bad selection. So, if the sender has selected a certain route, the initial company will not be liable for any delays in consequence of such selection. The initial company may know it to be a mistake of the sender in making the selection, but it is under no duty to adopt another route when it knows, at the time of sending, that the selected route is not opened.^^^ § 465. Same continued — exact extra fee or charges. When the sender has selected the route, this necessarily puts the company to some additional expense, and increases their duties to the "'West. U. Tel. Co. v. Turner. 94 ""West. U. Tel. Co. v. Sininis, 30 Tex. 304, 60 S. W. 432. lex. Civ. App. 32. 00 S. W. 464. "'Mitchell V. West. U. Tel. Co.. 12 Tex. Civ. App. 262, 33 S. W. 1010. 444 TELEGRAPH AND TELEPHONE COMPANIES. [^ 465 extent that the wishes of the sender must be carried out ; and, while the expense and additional liability of the company have been slightly increased, yet it seems but right that they may require of the sender a small additional charge to cover this.^^^ One of the addi- tional expenses incurred in the transmission of such messages is, that the name or names of the connecting lines must be transmitted along with the message, and this of course creates an extra trouble and ex- pense. § 466. Liability of companies between themselves — actions. As said before, connecting companies may be liable to third per- sons as partners, when, as between themselves, they are not partners, and any private arrangement made between themselves may bind them without affecting their liability toward third persons. The sen- der may institute suit,either against the initial company whose liabil- ity extends beyond its own terminus, or he may sue the connecting company guilty of the default; but,as between the companies,the gen- eral rule is that each is liable for its own negligence or breach of duty. And while the initial company may have assumed the respon- sibility for the transmission of the message beyond its own line, and damages may be recovered against it for the default of the connecting line, yet the company which actually caused the injury will be liable to the first for such damages. ^-^ If the company guilty of the de- fault is duly notified to come into court and defend an action against the initial line for such injury ; or, it seems, if it is not expressly no- tified to defend but knows that it alone caused the injury and is lia- ble, and is aware of the pendency of such a suit and its right to de- fend against the initial company for such injury, the judgment against the latter therein will be conclusive against the connecting line to the amount of damages recovered from the initial company. ^"- "While a contract, made by the sender and the initial company to transmit a message over a certain connecting line, may be of benefit '^ U. S. V. Nortliern Pac. R. Co., 120 inont, etc., R. Co. v. Fitchburg R. Co., Fed. 546. 14 Allen (Mass.) 462. ^Mo. Pac. R. Co. V. Twiss, 35 Xeb. "='Mo. Pac. R. Co. v. Twiss, 35 Neb. 267, 53 N. W. 76; Chicago, etc., R. Co. 267, 53 N. W. 76. See, also, Elliott V. Northern, etc., Co., 70 111. 217; Ver- on Roads and Streets, 656, 657. *§ 466] LIABILITY IN PARTICULAK CASES. 445 to the latter, jet it is not a contract for its benefit in such a sense as will give the connecting company a right of action against the initial company for violating the contract, by delivering the message to an- other connecting line.^-^ '=*St. Louis, etc., R. Co. v. :Mo. Pac. R. Co., 35 Mo. App. 272. CHAPTER XIX. ACTIONS FOR DAMAGES RESULTING FROM NEGLIGENT DELAYS OF TRANSMISSIONS. § 467. Parties — sender — in general. 468. Same continued — sender — action in tort or contract. 469. Same continued — message — sent by agent. 470. Addressee — right of action — in general. 471. Same continued — grounds on which rules are based. 472. English rule — in general. 473. Rule applicable to telegraph companies. 474. American rule — in general. 475. Same continued — with respect to telegraph companies. 476. Addressee beneficial party. 477. Same continued — sender agent of addressee. 478. Action for breach of public duty. 479. Same continued — action in contract or tort. 480. Same continued — damages under either. 481. Agent for addressee. 482. Right under statute. 483. Right of action — altered message. 484. Sender paying charges — effect upon the addressee's right. 485. Third party — right of action. 486. Under special statutes — penalty. 487. Addressee's right not affected— by failure to have message- repeated. 488. Actions between sender and addressee. 489. Contract made where last act of assent was done. 490. Same continued— actions between sender and addressee — contract — where made. 491. Same continued — action where brought. § 467. Parties — sender — in general. After having discussed, at some lengtli, the liabilities of telegraph companies for losses occurring in negligently transmitting or deliver- ing messages, we shall now discuss actions growing out of such neg- ligence. In discussing this subject we shall first take up the rights of certain persons to sue, and then the nature of the action. In com- menting on the last subdivision of this subject, we shall consider the rights of the sender to sue. The sender of a message may always maintain an action against a telegraph company to recover damages (446) § 468] ACTIONS FOR DAMAGES. 447 resulting from a negligent transmission or delay of the message/ but the questions with which the courts have been confronted are, What is the nature of -the action to bo maintained, and who is the rightful person to be considered as the sender ? - In many instances the right- ful sender is represented in making the contract by an agent. Should the undisclosed principal in the contract bring the action, or is it the duty of the agent who sends the message ? § 468. Same continued — sender — action in tort or contract. It has been held that a telegraph company was the agent of both the sender and sendee,^ and that either could maintain an action against it for its negligence. The prevailing view, however, is, that it is not an agent for either of these parties, but is an independent principal, and one of a public nature.^ They are institutions incor- porated to perform public functions, and in discharging these, they must exercise reasonable and ordinary care and diligence ; for a fail- ure to do so, they will be liable in damages to the party thereby in- jured.^ So, if a party contracts with one of these companies to trans- mit a message to a certain place, and it fails to exercise care in the transmission, whereby the sender suffers loss, he may recover damages for such loss.^ It has been held by some courts that, when a contract was made with one of these companies to send a message and it negli- gently transmitted or delayed in delivering the message, the com- pany was guilty of a breach of contract and the sender's action should be in contract. But the weight of authority is that the sender may maintain an action for the breach of the contract, or he may proceed •against the company for the breach of its public duty or sue in tort.''^ We are inclined to think that the latter view is the correct one. ^Playford v. United Kingdom, etc., 14 Am. St. Rep. 556. See, also, Chap- Tel. Co., L. R. 4 A. B. 706, 10 B. & ter on Contracts made by telegraph S. 759. companies. = West. U. Tel. Co. v. Brown, 108 * Alexander v. West. U. Tel. Co., 66 Ind. 538; West. U. Tel. Co. v. Kinney, Miss. 161, 3 L. R. A. 71, 14 Am. St. 106 Ind. 468. Rep. 556, 5 So. 397. ^N. Y. & W. Printing Tel. Co. v. "Gray v. Tel. Co., 108 Tenn. 39, 64 Dryburg, 35 Pa. St. 298, 78 Am. Dec. S. W. 1063, 91 Am. St. Rep. 706, 56 338. L. R. A. 301n. * Alexander v. West. U. Tel. Co., 66 ^ Shingleur v. West. U. Tel. Co., 72 Miss. 161, 5 So. 397. 3 L. R. A. 71, Miss. 1030, 18 So. 425, 30 L. R. A. 448 TELEGKAPH A^•l) TELEPHONE COMPANIES. [*§, 469 § 469. Same continued — message — sent by agent. The most difficult question \vliich has come up in reviewing this subject is, Who should maintain the suit when the message is sent for an undisclosed principle ? It has been generally held by most of the courts that the agent cannot maintain the suit unless he is interested in the contract, but that it is the duty of the principal to bring the ac- tion. The person who sends the message, or the person with w^hom the contract was made, is the proper party to recover damages for its breach ; and he may recover in his own name, although the message was signed by another person as his agent.^ The principal is entitled to all the advantages and benefits of the contract made by his agent ; and the fact that the company only contracted with the agent, and had no knowledge that the plaintiff was in fact the principal, is im- material, except that it might set up as a defense any matter occur- ring prior to the disclosure of the principal and which would consti- tute a defense in a suit by the agent.^ The principal may sue upon a contract made by his agent without giving notice of his interest, al- though the other party supposed the agent was acting solely for him- self.^" So, a telegraph company need not be informed that the sen- der of a telegram is acting as the agent for another, where it is not shown that the company would have acted differently had it known of the agency of the sender. -"^^ But where one party writes a dispatch 444, 48 Am. St. Rep. 604; Francis v. making the negligence of the company West. U. Tel. Co., 58 Minn. 252, 49 the ground of his right of recovery." Am. St. Rep. 507, 59 K W. 1078, 25 « Young v. West. U. Tel. Co., 107 N. L. R. A. 406; McPeek v. West. U. Tel. C. 370, 11 S. E. 1044, 22 Am. St. Co., 107 Iowa 362, 10 Am.. St. Rep. Rep. 883, 9 L. R. A. 669n; Thompson 205, 78 K W. 63, 43 L. R. A. 214. v. West. U. Tel. Co., 107 N. C. 449, See, also, Brown v. Chicago, etc., R. 12 S. E. 427; Dougherty v. American Co., 54 Wis. 342, 41 Am. Rep. 41, 11 U. Tel. Co., 75 Ala. 168, 51 Am. Rep. N. W. 356, 911. In this case the court 435. said: "All these matters are a breach *Harlaiess v. West. U. Tel. Co., 73 of contract to carry the passenger Iowa 190, 34 N. W. 811, 5 Am. St. safely, yet the carrier is hold liable in Rep. 672. an action for tort, .... All the "Foster v. Smith, 2 Colwell (Tenn.) cases hold that the person injured 474, 88 Am. Dec. 604; Shapp v. Jones, through the negligence or carelessness 18 Ind. 314, 81 Am. Dec. 359. of the carrier may proceed either upon " West. U. Tel. Co. v. Broesche, 72 the contract, alleging the negligent Tex. 654, 10 S. W. 734, 13 Am. St. act of the defendant as a breach of the Rep. 843. contract, or he may proceed in tort, i§ 471] ACTIONS FOlt DAMAGES. 449 and gives it to anorlur to soiul, who, instead of sentling it, writes an- other and signs and sends it without notifying the company that it is sent on behalf of tlie first party, the latter cannot hold the company liable in damages for losses sustained through failure of delivery. '- There are some instances where the agent may sue in his own name for the breach of a contract made by him for the principal ; as where lie is interested in the contract to the extent of his commission, or by reason of a special i)roperty in the subject-matter.^-'* So, a broker may sue a telegraph company in his own name for a breach of con- tract to transmit an order in his name, in behalf of his principal, for the purchase of gold. In such a case, however, he sues and recovers as tnistee for his principal.^'* § 470. Addressee — right of action — in general. One of the most difficult questions with w'hich the courts and text- writers have been confronted, and one which has not been settled with any degree of harmony, is. The rights of addressees to maintain suits against telegraph companies for negligently transmitting or deliver- ing a message, or for delivering a forged or fraudulent message, and also the nature of the action to be brought. There are two general rules upon which the rights of the addressee have been based. Th€^y are known as the English Rule and the American Rule. Some of our ■courts, seemingly becoming confused, have to a certain extent fol- lowed both of these rules ; and for this reason their decisions are not at all in harmony, nor very clear in their reasons. We shall attempt, in a few of the following pages of this work, to describe these rules and the grounds on which each is based, where each has been fol- lowed, and if possible, harmonize the various holdings of the courts. § 471. Same continued — grounds on which rules are based. Before entering into the discussion of either of these rules, it is necessary- to discuss the grounds upon which each is based. The gen- ;>> •> ' ■ '-Elliott V. West. U. Tel. Co., 75 Benedict, 5 Gray (Mass.) ofil. 66 Am. Te.K. 18, 12 S. W. 954, IG Am. St. Rep. Dec. 384. S72. '* United States Tel. Co. v. Gilder- " Goodman v. Walker, 30 Ala. 482. sleeve, 29 Md. 232, 96 Am. Dec. 510. ]t DAMAGES. 453 tliat tlie third party to Ik' Ijciiofited should Ix' naiiKMl ; it must clearly ai)pear, liowever, that lio was intended to be benefited.-'^ And it is held, in some jurisdictions, that there must be such an acceptance by the third party to the contract as will release the promisee from any obligations he may be under to the third party.-^ Where the third ]>arty sues upon these contracts, he will be subject to the equities that may exist between the oi-iiiiiial parties to the agreement.^^ § 475. Same continued — with respect to telegraph companies. The English rule with respect to private contracts, as stated, is fol- lowed to a certain extent in some of our coui*ts, but with respect to contracts made with telegi'aph companies for transmission of mes- sages, it has never been adopted or followed by any. It has always In-en held that, where a telegraph company has negligently trans- mitted or delayed delivering a message the receiver or addressee could maintain his action against the company when he could prove actual damages.^*^ It is not even intimated, either in England or in the United States, but that the sender may maintain an action -' Chung Kee v. Davidson, 73 Cal. 522, 15 Pac. 100; Bristow v. Lane, 21 111. 194; Burton v. Larkin, 36 Kan. 246, 59 Am. Rep. 541, 13 Pac. 398. -«Ranisdale v. Horton, 3 Pa. St. 330; Stone V. Justice, 9 Phila. 22. It is not the general rule, however: Ray v. Williams, 112 111. 91, 54 Am. Rep. 209. The assent will be presumed: Rogers v. Gasness, 58 Mo. 589. -■« Dunning v. Learvitt, 85 N. Y. 30, 39 Am. Rep. 617. ™West. U. Tel. Co. v. Dubois, 128 111. 248, 21 N. E. 4, 15 Am. St. Rep. 109; West. v. West. U. Tel. Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep. 530; May v. West. U. Tel. Co., 112 Afiiss. 90; Do La Grange v. South- western Tel. Co., 25 La. Ann. »83 : West. U. Tel. Co. v. Allen, 60 Miss. 549. 6 So. 461: West. U. Tel. Co. v. Long^vill (N. M.), 10 Am. St. Rep. 699; IV Rutte v. New York, etc., Tel. Co., 1 Daly 547, 30 How. Pr. 403; Wulf-skehl V. W'est. U. Tel. Co., 46 Hun (N. Y.) 542; ]\rilliken v. West. U. Tel. Co., 110 N. Y. 403; Young v. W^est. U. Tel. Co., 107 N. C. 370, 11 S. E. 1044, 9 L. R. A. 669n, 22 Ara. St. Rep. 883 ; New York, etc.. Printing Tel. Co. V. Dryburg, 35 Pa. St. 298, 78 Am. Dec. 338; Aiken v. West. U. Tel. Co., 5 S. C. 358; Wadi?worth V. \Vest. U. Tel. Co., 86 Tenn. 695, 8 S. \\-. 574, 6 Am. St. Rep. 864; W^est. U. Tol. Co. V. Beringer, 84 Tex. 38, 19 S. W^ 336; West. U. Tel. Co. v. Jones, SI Tex. 271; Martin v. W^-^t. U. Tel. Co.. 1 Tex. Civ. App. 143, 20 S. W. SCO; Abraham v. West. U. Tel. Co., 11 Sowy. (U. S.) 28. The rule in Cana- dian courts is the same, and the re- ceiver is allowed to recover. Watson v. .Montreal Tel. Co., 5 Mont. Leg. News 87 ; Bell v. Dominion Tel. Co., 3 Mont. Leg. News 406, 25 L. C. J. 248. 454 TELEGRAPH AND TELEPHOISrE COMPANIES. [§ 47. against a telegraph company for a breach of the contract of sending ; and it has been held, in our courts, that these companies are as much responsible for their negligence to a person to whom a message is ad- dressed as they are to the sender.-^ ^ While there is no dispute among the courts as to the rights of the addressee to sue, yet the question which has puzzled the courts the most is as to the nature of the suit to be brought, whether ho should sue in contract or in tort. The courts have stated various grounds on this doctrine, and we shall now proceed to give some of them. § 476. Addressee beneficial party. One ground upon which the courts hold that the addressee may maintain a suit against a telegraph company for its negligence in the transmission of a message is, that, where a contract is made by two parties for the benefit of a third person, the latter may sue for a breach of the contract. As may be observed, this reason is founded on the early English cases.^^ The addressee is the beneficiary of such contract and is entitled to sue in his own right for damages, when by the negligence of the company he is deprived of the benefit he would otherwise have derived. ^^ It seems that it is not necessary '"Young V. West. U. Tel. Co., 107 N. C. 370, 11 S. E. 1044, 9 L. R. A 669n, 22 Am. St. Rep. 883; Wads worth V. West. U. Tel. Co., 86 Tenn 695, 8 S. W. 574, 6 Am. St Rep. 864; Elwood v. West. U. Tel Co., 45 N. Y. 549, 6 Am. St. Rep 140; Ellis V. Tel. Co., 13 Allen 227; New York, etc., Tel. Co. v. Dryburg, 35 Pa. St. 298, 78 Am. Dec. 338; Mar- kel V. West. U. Tel. Co., 19 Mo. App. 80. In the first case cited, the court by Clark, J., said: "The following may be summed up as the reasons as- signed therefor: 1. That a telegraph company is a public agency, and re- sponsible, as such, to anyone injured by its negligence, or, at least, it is the common agent of sender and receiver, and responsible to each for any injury sustained by them respectively, by its negligence: 2. That in a case like this, the receiver is the beneficiary of the contract, and the injury, if any, caused by the company's negligence must be to him; 3. The message is the property of the party addressed, in an analogy to a consignee of goods; That upon the face of the message, such as this, the sender is the agent of the re- ceiver, and the latter, as the principal, can maintain an action for breach of the contract, or for a tort, if the in- jury is done him by negligence in per- formance of the duty contracted for." The following was the message in this case: "To J. T. Young, Newberm, N. C. Come in haste; your wife is at the point of death. J. W. Rice." ^''See § 471. =3 Aiken v. West. U. Tel. Co., 5 S. Car. 371 : West. U. Tel. Co. v. Hope, <§> 477] ACTIONS FOR DAMAGES. 455 that the addressee should have known of the contract at the time it was made. Thus, it has been held that the husband of the addressee may sue for a breach of a contract made with the company by a party Avho has not been previously appointed her agent for that particular purpose ; ^* although, some courts have held that the company must have had knowledge that the sender was the agent of the addresaee.^'^ Some courts hold that the company must have some notice of the im- portance of the message and the benefit which the addressee is likely to derive therefrom. ^^ It is sufficient, however, if the benefit to be derived appear on the face of the telegram .^'^ § 477. Same continued — sender agent of addressee. This rule, we think, is particularly applicable when the sender acts as agent for the addressee in making the contract.^® As was said, by Reyer, C. J., in deciding this point: "The rule that a principle is entitled to maintain an action upon a contract made by his agent with a third person, although the agency is not disclosed at the time of making the contract, has many illustrations in the reported cases, 11 111. App. 291; West. U. Tel. Co. v. was made for the benefit of the father, Jones, 81 Tex. 271. "A person for and that he was entitled to sue for whose benefit a promise to another up- damages for the failure to deliver, on a sufficient consideration is made, ^ West, l* Tel. Co. v. Adams, 75 may maintain an action on the con- Tex. 531, 12 S. W. 857. 16 Am. St. tract in his own name against the Rep. 920. promisor:" Burton v. Larkin, 30 "West. U. Tel. Co. v. Wilson, 93 Kan. 246, 59 Am. Rep. 541; Hendrick Ala. 32, 9 So. 414, 30 Am. St. Rep. V. Lindsey, 93 U. S. 143. This doe- 23. trine is denied by the case of West. ^West. U. Tel. Co. v. Boessche, 72 U. Tel. Co. V. Dubois, 128 111. 248, 21 Tex. 654, 13 Am. St. Rep. 843; West. X. E. 4, 15 Am. St. Rep. 109, and U. Tel. Co. v, Cofiin, 88 Tex. 94: also by Gray on Tel., § 67. Butner v. West. U. Tel. Co., 2 Okla. In West V. West. U. Tel. Co., 39 234, 37 Pac. 1087. Kan. 93, 17 Pac. 807, 7 Am. St. Rep. ^^ Martin v. West. U. Tel. Co.. 1 530, a son for the benefit of his father, Tex. Civ. App. 143, 20 S. W. 860. left with the company a message ad- "Milliken v. West. U. Tel. Co., 110 dressed to his father with instructions X. Y. 403, 1 L. R. A. 281; De Rutt v. to forward it immediately, at the Xew York, etc., Tel. Co., 1 Daly (N. same time paying the fee. Subse- Y.) 547, 30 How. Pr. 403. See. also, quently the father returned to the son Kennon v. West. U. Tel. Co., 92 Ala. the amount paid, and fully ratified ^^9, 9 So. 200. liis act. It was held that the contract 456 TELEGRAPH AND TELEPHONE COMPANIES. [§ 477 and is elementary law." ^^ This principle has been frequently ap- plied in actions against telegi-aph companies, and is now the settled law of this country with respect to such corporations.'^'^ While the addressee may sue the company, there is no reason why the agent may not maintain the action in behalf of the addressee.^ ^ § 478. Action for breach of public duty. There are other authorities which base the addressee's right of ac- tion upon the breach of the company's public duty.-*- While we think this is the correct view to take of the subject, yet we do not mean to say that they may not sue for the breach of the contract. These companies have undertaken to perform public functions, and, among these, it is presumed that they have assumed the duty to trans- mit correctly and accurately and deliver promptly all messages en- trusted to them ; and on a failure to discharge these duties with due care and diligence, they will become liable to anyone who suffers damages thereby. People seldom resort to them for an employment of their sei-vices unless their business is of such importance that it must be attended to in the shortest possible time and in the most ac- curate and correct manner.^ ^ They have held themselves out to the «»Milliken v. West. U. Tel. Co., 110 L. R. A. 669n; West. U. Tel. Co. N. Y. 403, 1 L. R. A. 281. v. Adams, 75 Tex. 531, 12 S. W. 857. "De Rutt V. New York, etc., Tel. G L. R. A. 344, 16 Am. St. Rep. 920; Co., 1 Daly (N. Y.) 547, 30 How. Pr. West. U. Tel. Co. v. Reynolds, 75 Va. 403. 173, 46 Am. Rep. 715; West. U. Tel. « United States Tel. Co. v. Gilder- Co. v. Allen, 66 Miss. 549, 6 So. 461; sleeve, 29 Md. 332, 96 Am. Dec. 519; Cowan v. West. U. Tel. Co., 122 Iowa American U. Tel. Co. v. Dougherty, 89 379, 98 N. W. 281, 101 Am. St. Rep. Ala. 191, 7 So. 660; Dougherty v. Am- 268, 64 L. R. A. 545. erican U. Tel. Co., 75 Ala. 168, 57 "Mr. Bigelow suggests as a satis- Am. Rep. 435. factory ground for the American rule, '-West. y. Tel. Co. v. Dubois, 128 the fact that telegraphic communica- 111. 248, 21 N. E. 4, 15 Am. St. Rep. tion is usually resorted to only in 109; 3 Suth. on Dam. 314; West. U. matters of importance, from which Tel. Co. V. Longwill, 10 Am. St. Rep. the company ought to infer the nec- 699; Milliken v. West. U. Tel. Co., 110 essity of correct and prompt trans- N. Y. 403, 1 L. R. A. 281; West. U. mission, and that "a mistake in its Tel. Co. V. Fenton, 52 Ind. 1 ; Abraham transmission will be likely to produce V. West. U. Tel. Co., 11 Sawy. (U. S.) damage to the receiver by causing him 28. See, also, Young v. West. U. Tel. to do what he would otherwise not do. Co., 107 N. C. 370, 11 S. E. 1044, Knowing, then, the ])robable conse- § 479] ACTIOXS FOR DAMAGES. 457 public as ready and willing to accomplish such business, and when they arc coni])('nsated for their undertaking, but fail in the attempt, they, and n.i! their cniployer, shduld suffer for the negligence of the former. In other words, when they have failed to discharge their public duties in transmitting messages, whereby the addressee lias been caused to suffer, the latter should have tlie riglit to main- tain an action against the company for the breach of its public duty. The damages, however, which result from such breach should te the proximate consequence of the company's negligence. § 479. Same continued — action in contract or tort. It is often a question with the addressee as to whether he sliould liring an action in contract or in tort, and it is sometimes a doubtful question with the courts as to what kind of an action has been brought. Because the addressee has an action in contract is no rea- son why he may not sue in tort. As was said: ''In many cases an action as for tort, or an action as for breach of contract, may be brought l)y the same party on the same state of facts ;" ^'^ and, as fur- ther stated by another text-writer: "The fact that a contract existed, and was l)roken at the same time, and by the same act or omission, by which the plaintiff's cause of action arose, is only one of the incidents of the situation. The defendant owed, in respect of the same thing, two distinct duties, one of special character to the party with whom he contracted, and one of a general character to others. . . . The duty, therefore, does not grow out of the contract, but exists before and indopciidciit of it.""*^* These companies are engaged in a public queiice of transmitting an erroneous ^u Am. St. Rep. 294, 62 N. W. 1 ; Al- message, they owe a duty to the re- cxander v. West. U. Tel. Co., 66 ceiver of refraining from such acts; ■Nliss. 161, 3 L. R. A. 71, 14 Am. St. and if (by negligence) they violate Rep. 556, 5 So. 397; Shingleur v. this duty, they must, on plain legal West. U. Tel. Co., 72 Miss. 1030, 30 L. principles, ho liable for the damage R. A. 444, 48 Am. St. Rep. 604, 18 So. ])roducod:" Bigelow on Torts, 602. 425; Tobin v. West. U. Tel. Co., 146 See, also, Coit v. West. U. Tel. Co., Pa. St. 375, 28 Am. St. Rep. 802, 23 130 Cal. 657, 53 L. R. A. 678, 80 Am. At). 324; Popper v. West. U. Tel. Co.. St. Rep. 153, 63 Pac. 83; West. U. Tel. 87 Tonn. 554, 4 L. R. A. 660, 10 Am. St. Co. V. Lycan, 60 111. App. 124; Webbe Rep. 699, 11 S. W. 783: Wadsworth V. West. U. Tel. Co., 169 111. 610, 61 v. West. U. Tel. Co.. 86 Tenn. 695, 6 Am. St. Rep. 207, 48 N. E. 670; West. Am. St. Rep. 864, 8 S. W. 574. U. Tel. Co. V. Fenton, 52 Ind. 1 ; ]\Ient- '* Cooley on Torts, 103, 104. zia V. West. U. Tel. Co., 93 Iowa 572, *=* Bigelow on Torts, 586-617. 458 TELEGRAPn AND TELEPHONE COMPANIES. \_^ 479 employment and are, within certain limits, to be considered as com- mon carriers. As such, they are charged mth a common-law duty, and ^'actions may be brought in tort, although the breach of duty is the doing or not doing of something contrary to an agreement made in the course of such employment." "*" Almost all cases on this subject hold that the addressee, who is injured through the negligence or carelessness of the company, may proceed either upon contract, alleg- ing the negligent act of the defendant as a breach of the contract, or he may proceed in tort, making the negligence of the company the gTound of his right of recover}^^'^ § 480. Same continued — damages under either. The reason why this question should be considered and known is, that the amount of damages to be recovered, and the ground upon which it is allowed under each, is quite different. The general rule as to the amount of damages to be recovered for a breach of contract is, that none can be recovered save that which may reasonably be sup- posed to have been contemplated by the parties at the time the con- tract was made, as the probable result of the breach of the contract.^^ Recovery in tort is not thus limited. The rule applicable to such cases is, that a "party who commits a trespass, or other wrongful act, is liable for all the direct injury resulting from such act, although such resulting injury could not have been contemplated as a probable result of the act done." ^^ This subject is most often brought up where the addressee is suing to recover damages for mental suffering. If the action is in contract, it is pretty generally held that the ad- dressee cannot recover damages for mental suffering, since it is pre- sumed that this was not in the contemplation of the parties as a prob- able result of the breach of the contract; yet, if the action were in *« Southern Ex. Co. v. McVeigh, 20 Iowa 379, 98 N. W. 281, 101 Am. St. riratt. 264; McPeek v. West. U. Tel. Rep. 274, 64 L. R. A. 545. Co., 107 Iowa 362, 70 Am. St. Rep. 205, *" Brown v. Chicago, etc., R. Co., 54 78 N. W. 63, 43 L. R. A. 214; Brown Wis. 342, 41 Am. Rep. 41, 11 N. W. V Chicago, etc., R. Co., 54 Wis. .'U2, 356; Keenan v. Cananaugh, .44 Vt. 41 Am. Rep. 41, 11 N. W. 356. 268; Metallic, etc., Co. v. Fitchburg "Id. B. Co., 109 Mass. 277, 12 Am. Rep. ^« Cowan V. West. U. Tel. Co., 122 689; Hill v. Winson, 118 Mass. 251; 1 Sedgwick on Dam., 130. <§ 482] ACTIONS FOR DAMAGES. 459 tort, recovery coukl be had.^" So, it is of vital importance to kuo\v what kind of action should be brought, and, also, the nature of the action which has been brought. § 481. Agent for addressee. It has been held, by some courts, that the company stands in the relation of an agent to the addressee and is, therefore, liable in dam- ages to its principal for the consequence of its negligence. '^^ It was held, in one case, viewing the matter in this light, that it was reason- able for all purposes of liability, that the company should be regarded as much the agent of him who receives, as of him who sends the mes- sage, and it was considered that the company ought to be regarded as the common agent of the parties at either end of the wire.^^ We think this is clearly an incorrect view lo take of the subject. But as will be seen hereafter, the company is generally considered to be the agent of the sender, when it is not suggested by the addressee to be used as a medium of communication; but it may be sued by either for the negligent performance of its duty. § 482. Right under statute. Other authorities claim that the right of the addressee to sue tlie company for negligently transmitting or delaying the delivery of a message, arises from statutes to that effect. ^^ In some states there were statutes early adopted which gave the third party the right to maintain an action for a breach of a contract made for his benefit, although he may have been a stranger, both to the promise and the consideration.^* In two states in particular, there have been statutes ""See chapter on Damages for men- Rice v. Sovery, 22 Iowa 470; Miliani tal suffering. v. Toguini, 19 Nev. 133; McArther v. "New York, etc., Printing Tel. Co. Dryden, 6 N. Dak. 43S. V. Dryburg, 35 Pa. St. 298, 78 Pa. St. Statutes allowing the real party in 338. interest to sue have been passed in "Id. Alabama, California, Indiana, Iowa, *' Wadsworth v. \\ est. U. Tel. Co., Kansas, Kentucky, Minnesota, Mis- 80 Tenn. G95, 6 Am. St. Rep. 864, 8 souri, Nebraska, Nevada. New York, S. W. 574; West. U. Tel. Co. v. Fen- North Carolina, Ohio, Oregon, Texas, ton, 52 Ind. 1. Utah and Wisconsin. Statutes specif- " Ellis V. Harrison, 104 ^lo. 270; ically giving to a tliird party a right •±60 TELEGRAril A^D TELEPHONE COMPANIES. \_^ 482 adopted which are more specifically applicable to the negligence of telegTaph companies."^ It is often provided in these latter statutes that the right of the addressee is not affected by reason of the fact that the employees of the company may be proceeded against crimi- nally for their negligence. ^*^ While these statutes have had a ten- dency to streng-then the general rule whereby a third person, in whose favor a contract has been made, may maintain an action for a breach therefor, yet we think that the}^ are merely declaratory of the rights derived under the conmion law, and that a third person could as eas- ily recover damages for the breach of the contract made in his be- half as if the statutes were not in existence. § 483. Right of action — altered message. And still, it has been held in other jurisdictions that, where a tele- gTaph company has delivered an altered message or one materially different from that contracted to be sent, it would be a misrepresenta- tion,or a false message, and the company should be held liable for the consequences.^^ The ground upon which the right of action arises is the same as that for injuries resulting from other misrepresentations. Thus, it has been held that a physician, who negligently adminis- tered a wrong medicine, is responsible to his patient for the injury resulting therefrom, if he takes it in the belief that he was taking the right medicine. ^^ And it has been suggested by analogy that a tele- graph company must answer to an addressee for delivering to him a message which, through its negligence, has become false. ^^ But in order for the addressee to recover, he must show that he himself has suffered an injury by the negligence of the company. Therefore, where a message from a dealer to his broker is erroneously trans- of action upon a contract made for his "May v. West. U. Tel. Co., 112 benefit have been passed in California, Mass. 90. Code, § 1659 ; and Dakota, Conipt. »* Norton v. Small, 106 Mass. 143, Laws, § 3499. 8 Am. Rep. 298 ; Thomas v. Winches- ^=^Tenn. Code., §§ 1541, 1542, Indi- ter, 6 N. Y. 397, 57 Am. Dec. 455; ana Statute. Ayers v. Eussel, 3 N. Y. Supp. 338. '» WadsAvorth v. West. U. Tel. Co., =» Allen's Tel. Cas. 455; Gray on Sfl Tenn. G95, 6 Am. St. Eep. 864, 8 Tel., § 73. S. W. 574; West. U. Tel. Co. v. Fen- ton, 52 Ind. 1. <^ 485] ACTIOXS FOR DAMAGES. 461 initted, by reason of which I lie broker luakos losing coniraeLs for his ])ri]icipal, tlie broker cannot maintain an action for damages, be- cause, as he is not responsible on the contracts, he caimot claim to have suffered any damages.'"^ The courts and text-writers, as may be observed, have considered various grounds upon which the ad- dressee's rights of action have l)een based, but we are inclined to tliink, as said before, tliat liis right of action, when on contract, is founded on the ground thai a third party, in whose favor a contract is made, may sue for the breach thereof; and when the action is in tort, for the breach of the company's common-law duty. § 484. Sender paying charges — effect upon the addressee's right. The fact that the sender ])aid the company the charges for trans- mitting the message, will not affect the addressee's right of action.*^^ If the sender is acting in the relation of agent to the addressee, in the particular instance; or, if the latter is the beneficiary of the contract of sending, the payment by the sender will be a sufficient payment for the addressee. If he should sue for the breach of its public duty, the payment by the sender in the contract of sending, and out of which the action of tort arose, would be sufficient for him to maintain an ac- tion thereon. It matters not from whom it derives the compensation for its services, because, having received the charges, it is presumed that the company has assumed the duty to correctly transmit and promptyly deliver the message. In one case it was held that the receiv- er could maintain his suit although the charges had been paid by the sender, to whom they were afterwards returned by the company.^^ The same rule will apply in actions brought by the sender when the message fees have been paid by the addressee. § 485. Third party — right of action. It is not every one who may maintain suit against a telegraph com- ])any when interested in a message being correctly transmitted and ""Rose V. United States Tel. Co., G Co. v. Allon. VS :Miss. .-)49, So. 4t;i; Robt. (N. Y.) 305; 3 Abb. Pr. N. S. West. U. Tel. Co. v. Feegles, 75 Te.\. (^^. Y.) 408. 34 How. Pr. (X. Y.) 537. 12 S. W. 800; West. U. Tel. Co. 308. V. Beringer, 84 Tex. 38. 19 S. W. 330. "Wolfskehl V. West. U. Tel. Co., "MVest. I'. Tel. Co. v. Berinper, 84 4(1 Ihin (X. Y.) .-)42: West. U. Tel. Tex. 38. 19 S. W. XKk 402 TELEGKAPII AA'D TELErHOAK CO.MPAXIES. \_^ 485 promptly delivered, and who would suffer a loss by a failure of the company to properly discharge this duty. He must show that the company owed a duty to him in the particular instance. Therefore, a stranger cannot maintain an action against a telegraph company for its negligence in transmitting or delay in the delivery of a message, when the company is ignorant of his connection or interest in the message, or when he is remotely connected in the transaction. Thus, where the plaintiff delivers a message to a third person with the in- struction to deliver it to the company for transmission, but instead of the third party obeying the instruction, he writes another message and prepares and delivers it to the company as his own, and of which act the company is ignorant, the latter will not be liable to the plain- tiff for its negligence.*"^ If the plaintiff can show that either the sen- der or the addressee, or both, were acting merely as his agents, the rule would be different. So, also, where the message is sent on behalf of a wife, the husband is the proper person to sue, although he may not have been a party to the contract of sending.^^ And the parent or next friend may sue a company for its negligence in transmitting or delivering a message in which the child is interested. In such cases the contributory negligence of the parent will be no defense to the company as against the child, while it may be as against the parent.*^^ •^ Elliott V. West. U. Tel. Co., 75 company for failure to deliver a mes- Tex. 18, 12 S. W. 954; Deslottes v. sage sent to a physician. The son, a Baltimore, etc., Tel. Co., 40 La. Ann. boy of fifteen years, had broken his 183. arm and on the same day his mother, ** The fact that the company had no in his father's absence, telegraphed for notice that she was plaintiff's wife, or a physician. Through the conceded that the contract was made for her, is negligence of the company the message immaterial: ^Yest. U. Tel. Co. v. was not delivered for nine days, but Adams, 75 Tex. 531, 16 Am. St. Rep. it appeared that the parents made no 920; West. U. Tel. Co. v. Feegles, 75 further efforts to. secure a physician Tex. 537 ; West. U. Tel. Co. v. Cooper, until it was too late to save the boy's 71 Tex. 507, 9 S. W. 598, 10 Am. St. arm. It was held that the father's Rep. 772, 1 L. R. A. 728; Young v. contributory negligence in not sending West. U. Tel. Co., 107 N. C. 370, 22 for another physician would bar re- Am. St. Rep. 883, 9 L. R. A. 669n, 11 covery on his own account, but that S. E. 1044. a judgment in favor of the son was "West. U. Tel. Co. v. Hoffman, 80 pioper, as the negligence of the father Tex. 420, 15 S. W. 1048, 26 Am. St. could not be imputed to him. See, al- Rep. 758. This case was an action by so, Williams v. Tex., etc., R. Co., 60 a father and son against the telegraph Tex. 205; Galveston, etc., R. Co. v. (^ 487] ACTIONS I'OK DAMAGES. 463 § 486. Under special statutes — penalty. There are special statutes adopted in some of the states which impose a penalty on telegraph companies for every failure to prop- erly discharge its duty as to transmitting and delivering messages, and providing that the penalty may be recovered by the '"party ag- grieved." It has been held in Mississippi,*^** Tennessee ^'^ and Mis- souri,*'^ that either the sender or receiver could recover the penalty under these statutes. There is a statute somewhat similar to these in Indiana, but it is held there that only the sender has a right of ac- tion.**'-* And, in the latter state it is held that one who directs his clerk to forward to him, in his absence, an expected message from a third person, is not a ''sender" within the meaning of the statute ; '^'^ nor is one a sender who merely shows that he delivered to the company a message for transmission, signed by another but paid for by him- self."^ ^ There is another statute in this state authorizing the recov- ery of special damages, under which the addressee may sue.'- There is a statute in IvTew York which prescribes the duties of telegraph companies, and under this, a company may maintain an action against a connecting line which refuses to accept a message from the initial line for further transmission ; ' ^ although, in such cases, the original sender of the message might properly have maintained the action.*^* § 487. Addressee's right not affected — by failure to have mes- sage repeated. In some jurisdictions it is held that the stipulations in the mes- sage blank? with respect to a necessity of a message being repeated in Moore, 59 Tpx. 64, 4(5 Am. Rep. 265; Tel. Co. v. Hopkins, 49 Ind. 223; Had- Plimley v. Birge, 124 Mass. 57, 26 Am. ley v. West. U. Tel. Co.. 115 Ind. 191. Rep. 645. ""West. U. Tel. Co. v. Kenney, 106 "West. U. Tel. Co. v. Allen, 66 hid. 468. Miss. 549, 6 So. 461. -'West. U. Tel. Co. v. Brown, lOS »■ Wadsworth v. West. U. Tel. Co., Ind. 538. 86 Tenn. 695. 6 Am. St. Rep. 864, 8 'MVest. U. Tel. Co. v. ^NIcKibben. S. W. 574. 114 Ind. 511; West. U. Tel. Co. v. °*Markel v. West. U. Tel. Co.. 19 Fcnton, 52 Ind. 1. Mo. App. 80. '^United States Tel. Co. v. West. V. ■^West. U. Tel. Co. v. Pendleton, 95 Tel. Co., 56 Barb. 46. Ind. 12, 48 Am. Rep. 692; West. U. "♦Leonard v. New York. etc.. Tel. lei. Co. V. .M;d telepho>e co:\[panies. [§ 504 § 504. Actions for statutory penalty. Eollowiuii' ibc general rule tiiat penal statutes must be strictly construed, it is held that the pleadings in an action brought against telegraph companies to recover a statutory penalty, are usually en- forced with more strictness than pleadings in the ordinary actions to recover damages. The complaint or declaration must allege all the facts necessary to bring the case not only within the letter of the stat- ute but within its spirit as well.-^ Thus, it must allege that the charges were paid or tendered, and that the case comes within the statute.-*^ So, if the statute provides that only such companies as are "engaged in telegraphing for the public," and the allegations in the complaint state that it was "engaged in the business of transmitting telegraphic dispatches for hire," this will not be a compliance with the statute. 2" A statutory penalty cannot be recovered w^here the complaint avers that the defendant negligently transmitted a mes- sage whereby he suffers a loss, when the statute provides that the re- covery can only be had where the company has negligently delayed the delivery of the message, or vice versar^ It is not necessary for the copy of the message to be set out in the pleading in these cases ;^^ nor is it necessary that it should negative matters of defense."*^ Thus, where the rule of the company is that it will deliver all messages free of charge within the free-delivery limit, it is not necessary for the declaration to contain an averment that the addressee lived within the free-delivery limits, since if such .should not be the facts, it is a defense to be used by the company.^ ^ It is a general rule of proced- '^West. U. Tel. Co. v. Kinney, 106 West. U. Tel. Co., 4.5 S. Car. 344, 55 Ind. 468; Greenberg v. West. U. Tel. Am. St. Rep. 763, 23 S. E. 143. Co., 89 Ga. 754. "West. U. Tel. Co. v. Axtell, 69 -'West. U. Tel. Co. v. Mossier, 95 Ind. 199; West. U. Tel. Co. v. Rob- Ind. 32; West. U. Tel. Co. v. Fergu- erts, 87 Ind. 377; West. U. Tel. Co. v. son, 57 Ind. 495. Adams, 87 Ind. 598, 44 Am. Rep. 776. In a common law remedy to recover =^ Wilkins v. West. U. Tel. Co., 68 damages, it is not necessary to show Miss. 6, 8 So. 678. that the charges were paid: West. U. =» West. U. Tol. Co. v. Meredith. 95 Tel. Co. V. Meek, 49 Ind. 53; Milliken Ind. 93. V. West. U. Tel. Co., 110 N. Y. 403. =» Cowan v. West. U. Tel. Co., 122 But all the facts enumerated in the Iowa 376, 98 N. W. 281, 101 Am. St. statute as necessary to render the con- Rep. 268; West. U. Tel. Co. v. Hender- tract valid, must be shown: Gist v. son, 89 Ala. 510, 7 So. 419. "Id. >§ 505] PLEADING, PRACTICE AXD EVIDENCE. 477 lire that tlie proof must be consistent with the averments in the plead- ings, but if the variance is on immaterial allegations, the complaint will be good.^- It is only where the variance is on material aver- ments that the rule is api)lica])]e. If the message was delivered to the company on Sunday, the declaration must allege its necessity of being sent on that day, in order to recover nnder these statutes.^^ § 505. Plea to the declaration. At the common law, whether the action sounded in contract or m tort, it was generally sufficient for the company to plead the general issue,^* and a general denial will be sufficient in the states in which the code procedure is used, but as new matter must be specially pleaded under the code, it will sometimes be necessary, or rather ad- visable, to answer specially.'^'"' Thus, if the claim is not presented within the required time, or if the message was not ordered to be re- peated, or if there is a failure on the part of the plaintiff to comply with any of the stipulations contained in the message blank, the plea should specially aver these facts. If the message is sent in cipher, and the company is not informed of its importance, an averment of this fact should be made ; and it will be an error in the court to strike from the plea such an averment.^^ The plaintiff should have notice of the rules of the company in order for them to be binding on him ; and if a plea to a complaint against one of these companies avers that a message, received for transmission, was written on one of the blanks upon which the requirement for notice of damages within sixty days was printed, and was sent subject to the contract expressed thereon and of which this requirement was a part, it is equivalent to an averment of notice of the rule on plaintiff's part.^" ■"Thus, -where the complaint alleged "Missouri Pac. R. Co. v. Wichita, that the message sent in March, the etc., Co., 55 Kan. 525, 40 Pac. 899; plaintitT might still show it to have Atchison, etc., R. Co. v. Bryan (Tex.) been sent in January: West. U. Tel. 28 S. W. 98. Co. V. Kilpatrick, 97* Ind. 42. =""^1111 v. West. U. Tol. Co., 42 S. =^West. U. Tel. Co. v. Yopst. 118 Car. 367, 40 Am. St. Rep. 734. 20 Ind. 248; West. U. Tel. Co. v. Griffin, S. E. 135. 1 Ind. App. 46. "Harris v. West. U. Tel. Co., 121 "Hutchinson on Carriers, (2 Ed.), Ala. 519, 25 So. 910, 77 Am. St. Rep. §758; I. C. R. Co. v. Johnson. 34 111. 70. 389; St. Louis, etc., R. Co. v. Knight. 122 U. S. 79, 7 Sup. Ct. R. 1132. 478 TELEGKAPH AND TELEPHONE COMPANIES. [§ 50G § 506. The issue. In an action brought against a telegraph company for damages, the recovery will be limited as in all other cases against corporations or jirivate persons, to the issue involved, and, it seems that, if the com- plaint counts entirely upon the failure of the company to promptly deliver the message, he cannot recover where the loss has been sus- tained by a negligent transmission.^^ In such a case, however the pleadings may be amended so as to be consistent with the proof. In an action to recover damages for the death of a horse, caused by the delay of the company in delivering a message requesting the atten- dance of a veterinary surgeon, the sole issue is whether such death was due to delay in the treatment, caused by the failure to deliver the message, regardless of negligence in the treatment of the horse af- ter the dispatch was delivered."^ § 507. Presumption of negligence — ^burden of proof. In ordinary actions brought to recover damages for personal inju- ries, there is probably no presumption of negligence against either party; the mere fact of injury being sustained, creates no such pre- sumption, except where, from the peculiar circumstances involved, the familiar maxim of res ipsa loquitur is applicable.^^ But where an action is brought to recover damages from a telegraph company for negligently transmitting or delaying in the delivery of a message, the rule is different. In such cases, where it is shown that a message has been delivered to it and an error has been made in its transmis- sion;^^ or, that a delay has been made in its delivery;^- or, that it ^Connell v. West. U. Tel. Co., 116 434, 14 S. W. 649; West. U. Tel. Co. Mo. 34, 22 S. W. 345, 20 L. E. A. 172 v. Griswold, 37 Ohio St. 303, 41 Am. 38 Am. St. Rep. 575. Rep. 500; West. U. Tel. Co. v. Crall, «»Hendershot v. West. U. Tel. Co., 38 Kan. 679, 17 Pae. 309, 5 Ain. St. 106 Iowa 529, 08 Am. St. Rep. 313, 76 Rep. 975; West. U. Tel. Co. v. Dubois, N. W. 826. 128 111. 248, 15 Am. St. Rep. 109, 21 ^Thompson on Neg. 1227-1235, §3; N. E. 4; Reed v. West. U. Tel. Co., Cooley on Torts 796; Shear. & Red. on 135 Mo. 661, 37 S. W. 904, 58 Am. St. Neg. §59; Wharton on Neg. §§421, Rep. 609, 34 L. R. A. 492. 422; Addison on Torts 17, 366; Big- "-Harkness v. West. U. Tel. Co., 73 elow on Torts 596. loAva 190, 34 N. W. 811, 5 Am. St. Rep. ^'West. U. Tel. Co. v. Short, 53 Ark. (.72; Hendricks v. West. U. Tel. Co., <§. 507] PLEADING, PKACTICE AND EVlDliXCE. 479 ]ias been ti-ansmilled but not delivered;"*^ or, that it has not been transmitted ; '^^ or, that a material \vord has been omitted in the mes- sage,*^ it is presumed that the company has been guilty of negligence, and the burden is on the latter to disprove such negligence.^" This is the universal rule ; and when the plaintiff has shown a delivery to the company and that an error has been made, or that the message has been delayed in its delivery, his case is made out. The reason of the rule is obvious. If the burden were cast upon the plaintiff, he could never make out his case. It would be nothing more nor less than a fight in the dark to impose such a duty upon him, since the proof of these negligent acts are almost always in the sole possession of the defendant company. Being peculiarly within the knowledge of the company, it is no hardship on them to be required to furnish the proof of the causes of errors or delays. Therefore, one reason why we think the stipulation in the message blanks requiring the claim for damages to be presented to the company within a certain time is reasonable is, that the company may be notified of the injury in time to make a prompt investigation of the matter. The same rule will apply where the suit is against one company, when the er- ror has been made on a connecting line. The burden is on the de- fendant to show that the connecting line, and not its own negligence, caused the loss.^'^ 126 N. C. 304, 35 S. E. 543, 78 Am. ern Tel. Co., 25 La. Ann. 383; West. St. Rep. 658; Tol. Co. v. Brown, 104 I,'. Tel. Co. v. Goodbar, (Miss.) 7 So. Tenn. 56, 50 L. R. A. 277, 78 Am. St. 219; Rittenhouse v. Independent Line Rep. 906. Of Tel. 44 N. Y. 263, 4 Am. Rep. 673 ; *■ Fowler v. West. U. Tel. Co., 80 Me. Pearsall v. West. U. Tel. Co., 124 N. 381, 6 Am. St. Rep. 211. Y. 256, 21 Am. St. Rep. 662, aff'g. 44 "Id. Hun (N. Y.) 532; United States Tel. *»Ayer v. West. U. Tel. Co., 79 Me. Co. v. Wenger, 55 Pa. St. 262, 93 Am. 493, 1 Am. St. Rep. 353, 10 Atl. 495. Dec. 571; Bartlett v. West. U. Tel Co.. « Little Rock, etc., Tel. Co. v. Davis, U2 Me. 209, 16 Am. Rep. 437; Cowan 41 Ark. 79; West. U. Tel. Co. v. Fon- v. West. U. Tel. Co., 122 Iowa 379, 64 taine, 58 Ga. 433; Tyler v. West. U. L. R. A. 545, 98 N. W. 281, 101 Am. Tel. Co. 60 111. 421, 14 Am. Rep. 38; St. Rep. 281. See, also, cases cited in West. U. Tel. Co. v. Ward, 23 Ind. notes 41, 42, 43, 44, 45. 377, 85 Am. Dec. 462; West. U. Tel. "In De La Grange v. Southwestern Co. V. Meek, 49 Ind. 53; Turner v. Tel. Co., 25 La. Ann. 383, the defend- Hawkeye Tel. Co., 41 Iowa 458, 20 Am. ant company contended that it was not Rep. 605; Do La Grange v. Southwest- th.' first carrier and that the plaintiff 480 TELEGRAPH AND TELEPHONE COMPANIES. [<§, 508 § 508. Same continued — effect of stipulation. It has been held that proof of delivery of a message to the company for transmission, and an error made in the transmission or a delay in its delivery, will not alone anthorize the recovery of more than the price paid for transmission, where the contract of sending contained special limitations of the company's liability. Thus, in some of those jurisdictions which hold the stipulation reasonable which requires the message to be repeated, otherwise the company will not be liable beyond the amount paid for transmission, it is held that such negli- gence — except for willful misconduct or gross negligence — of the company is not presumed, but that the burden is cast upon the sen- der to show such by independent facts or by circumstances connected with the principal fact."*^ It was at first, and is now, difficult to show- by what method the plaintiff can prove the negligence of these com- panies ; but any independent fact or circumstance, connected with the principal fact, may be resorted to for such proof. It must be under- stood that this rule is only applicable in those jurisdictions where such stipulations are held as being reasonable.'*^ § 509. Evidence. It does not matter whether the plaintiff sues on the contract of sending, or upon the breach of duty, in order to recover damages for loss or injury sustained by an error made in the transmission or de- failed to prove that the error in trans- Tel. Co., 27 Iowa 433, 1 Am. Eep. mission occurred on its line, and show- 285; West. U. Tel. Co. v. Bennett, 1 ed an expressed provision in its print- Tex. Civ. App. 558; Redington v. Pae. eil blanks that it would not be liable Postal Tel. Cable Co., 107 Cal. 317, for errors occurring on connecting 40 Pac. 432, 48 Am. St. Rep. 132. See lines. It was held that whether de- following cases holding a contrary fendant was the first carrier or not, it view: Gillis v. West. U. Tel. Co., 01 was peculiarly within its power, and Vt. 461, 17 Atl. 736, 4 L. R. A. 61 In, it was its duty to prove that the error l.'^; Am. St. Rep. 917, and note; Note did not occur on its line. to Pepper v. Tel. Co., 10 Am. St. Rep. «Womack v. West. U. Tel. Co.. .38 711; West. U. Tel. Co. v. Crall, 38 Tex. 180, 44 Am. Rep. 014; Aiken v. Kan. 679, 17 Pac. 309, 5 Am. St. Rep. West. U. Tel. Co., 69 Iowa 31, 28 N. 795; Ayer v. West. U. Tel. Co., 79 Me. W. 419, 58 Am. Rep. 210; West. U. 493, 1 Am. St. Rep. 353, 10 Atl. 495. Tel. Co. v. Neill, 57 Tex. 283, 44 Am. ^•' See note 48 for contra cases. Rep. 589; Sweetland v. Illinois, etc., § 510] PLEADING^ PRACTICE AND EVIDENCE. 481 lay in the delivery ; in either case he must prove, in general, a deliv- ery of the message to the company, a contract on its part either ex- press or implied to transmit the message, and its failure to perform the duty according to the agreement. '^^ In other words, he must show that the company owes him a duty which is imposed on it by law, or which arises out of a contract, and a breach of this duty, whereby he has suffered a loss or an injury. We have, elsewhere, considered what evidence was necessary to constitute a delivery ; what necessary to constitute a contract; what presumption arose in such cases; what must be shown where there are connecting lines; and, upon whom the burden of proof rests. We shall later consider, at some length, the admissibility of telegrams as evidence, so there is but little to be said at this place. The rule for the admissibility of evidence against telegraph companies is the same as that in other cases ; ^^ the evidence must always be responsive to the issue involved. °^ As we have said, the company may defend by showing that the loss or injury was caused by the act of God, by the public enemy, by public authority, or by the fault of negligence of the plaintiff. Therefore, any evi- dence may be admitted which goes to show that the loss or injury re- sulted from anyone of these causes. These companies may, also, as elsewhere stated, limit their common-law duty to a certain extent by a special contract to that effect, or they may limit their other lia- bilities by stipulations contained in the contract of sending; and when the damages sustained fall within such limitations or result from a non-compliance with them, evidence which tends to show such facts may be admitted. § 510. Same continued — illustrations. No evidence should be admitted which will, in any way, prejudice the rights of either the plaintiff or the company. So, it is not proper ="'Pearsall v. West. U. Tel. Co., 124 etc.. K. Co.. G7 IMiss 399, 7 So. 350. N Y. 256, 21 Am. St. Rep. 062; An- "^-Chicago, etc., R. Co. v. Hoeffner. gell on Carriers (5th Ed.), §461; 44 111. App. 137; Kyle v. Buffalo, etc., Hutchinson on Carriers (2d Ed.), K. Co.. 10 V. C. C. P. 70. See, also. § 759. See, also. West. U. Tel. Co. v. New I-Znerland, etc.. Co. v. Slarin, 60 Dubois, 128 111. 248, 15 Am. St. Rep. Conn. 300, 22 All. 953; Spurlock v. 109, 21 N. E. 4. Missouri Pac. R. Co., 93 Mo. 530, 6 S. ■" Louisville, etc., R. Co. v. Xatces. W. 349. T. & T.— 31 482 TELEGKAPII AA'B TELEPHOJS'E COMPANIES. \_^ 510 to admit evidence to show that the defendant is a wealthy corpora- tion ; it seems, however, that such evidence may be admitted when there has been a willful injury and exemplary damages are claimed. ^^ Evidence which shows the embarrassed financial condi- tion of the sender is inadmissible for the same reason, when the pur- pose of such is to have a bearing on the question of damages for the loss of a valuable bargain in consequence of the company's negli- gence.^* Evidence cannot be admitted to show that, for the alleged negligence, a deduction had been made from the pay of the operator by one of the superior officers.^ ^ Where the plaintiff sues to recover damages sustained by a failure to deliver a message to a physician, requesting him to visit the former's family; evidence which tends to show that the medical charges were not prepaid according to the physician's practice is inadmissible.^'^ The statements or declara- tions of the agents or operators of these companies are only admis- sible when others, similar to these, are allow^ed in other cases; that is, they can only be admitted wdien they became a part of the res gestae."'^ The plaintiff may introduce evidence showing that other messages were sent on th(> same day as his, and were properly trans- mitted and delivered f^ and when the action is for mental suffering, caused by the plaintiff being kept away from the bedside of his dying mother, evidence may be admitted to show that the plaintiff was the favorite child of the mother.'''' Where the plaintiff's good faith, in making a certain purchase in pursuance of the erroneous telegram, is in question, he may show his understanding of the message and that he acted on the basis of such understanding.^'^ It may be said, in "West. U. Tel. Co. v. Henderson, 89 10 Am. St. Rep. 772; West. U. Tel. Ala. 510, 18 Am. St. Eep. 148, 7 So. Co. v. Lydon, 82 Tex. 3G4. See, also, 419. Union R., etc., Co. v. Riegel, 73 Pa. St. "West. U. Tel. Co. v. Way, 83 Ala. 72; Green v. Boston, etc., R. Co., 128 542, 4 So. 844. Mass. 221, 35 Am. Rep. 370; Bennett ^=Grinnell v. West. V. Tel. Co., 113 v. Xoithern Pac. R. Co., 12 Ore. 49, Mass. 299, 18 Am. Rep. 485. (i Pac. IGO; Queen v. Peters, 16 New =^West. U. Tel. Co. v. Henderson, 89 Bruns. 77. Ala. 510, 18 Am. St. Rep. 148, 7 So. =» West. U. Tel. Co. v. Lydon, 82 Tex. 4 J 9. 304. ^' Aiken v. West. U. Tel. Co., 5 S. =^ Id. C. 358; West. U. Tel. Co. v. Way, 83 ""Aiken v. West. U. Tel. Co., 69 Ala. .542, 4 So. 844; West. U. Tel. Co. l.nva .Si. .58 Am. St. Rep. 210, 28 N. V. Cooper, 71 Tex. 507, 1 L. R. A. 728, \V. 41!). -^511] l-LKAblXG^ PKACTICE AND EVIDENCE. 483 c'uuclusioii, that all evidence pertinent to the substantial issue in- volved, and tending in anywise to throw light on the whole transac- tion, is admissible.'^ ^ § 511. Question for jury. It is always the rule of practice that the court must decide on the admissibility of cNidence, but when it is admitted and contradicted, the jury are the sole judges of its weight and credibility. They should consider the character of the witnesses, the manner of their testifying and the interest, if any, which they may have in the re- sult of the case, and give their evidence such weight as the circum- stances would permit. There is no difference in the rule of law re- garding the facts to be deliberated upon in cases, against telegi-aph companies, and that arising in other cases ; but we shall particular- ize, to a certain extent, cases against these companies. Telegraph companies must exercise reasonable diligence in delivering telegrams, and what will constitute such diligence, in a particular case, depends upon the circumstances of that case, of which the jury are the exclu- sive judges.''- Thus, an agent of one of these companies, who under- takes to deliver a message outside of office hours, is acting within the scope of his agency, and the company is liable for his failure to exercise reasonable diligence. Whether or not such diligence was exercised, is a question for the jury.^^ It is also a question for the jury as to whether the company exercised reasonable diligence and care in delivering the message to the addressee ; and where the latter is away from home, it is error for the court to instruct the jury that it was the duty, in such cases, to deliver the message to the addressee's wife, since she is not, in law. the agent of her husband.''"* Where "' Gulf, etc.. R. Co. V. Wilson, 69 Tex. 507, 9 S. W. 598, 1 L. R. A. 728, Tfx. 739. 7 S. W. 653; United States 10 Am. St. Rep. 772; Coit v. West. U. Tel. Co. V. Wenger, 55 Pa. St. 262. 93 Tel. Co., 130 Cal. 657, 53 L. R. A. Am. Dec. 751. See, also, West. U.Tel. 078, 80 Am. St. Rep. 153, 63 Pac. 83. Co. V. Stevenson, 128 Pa. St. 442, 18 ««McPeek v. West. U. Tel. Co.. 107 Atl. 441, 5 L. R. A. 515, 15 Am. St. Iowa 356, 70 Am. St. Rep. 205. 43 Rep. 087; West. U. Tel. Co. v. Collins, L. R. A. 214, 78 N. W. 63. 45 Kan. 88, 25 Pac. 187. "West. U. Tel. Co. v. Mitchell, 91 "West. i:. Tel. Co. v. Cooper. 71 Tex. 454, 44 S. W. 274, 66 Am. St. 4S-J: TELEGRAPH AND TELEPHONE COMPANIES [<§> 511 the questiou was at issue as to whether the addressee knew of the stipuLntioiis contained in the message blanks, it must be determined by the jury.^^ The question as to whether the plaintiff contributed to the injury or loss, or whether it was the result of some uncontroll- able cause, should also be left to the determination of the jury. § 512. Instructions to juries. The jury being in possession of all the evidence in the case, it is the duty of the court to instruct them on the law pertaining to the issue involved ; and the manner in which this is done is not different from that in other cases. In a great number of cases brought against these companies for damages, it is generally alleged that the loss or damage has been brought about by the negligence of the company-, or some of its employees; and more especially is this the case where the action is for a broach of its duty. On the question of negligence, a charge that the question of diligence is one to be determined by the jury from all the facts and circumstances; and if they should believe from such evidence that the company used such care and dili- gence as a prudent man under like circumstances Avould use in his own behalf to deliver the message, and failed through no fault of his own, would be proper.*^" If the objects of the message could not have been accomplished, even though the company had not been guilty of negligently transmitting or delivering it, the company should not be held liable, and the jury should be so instructed f^ and, where the averment in the declaration is that the message was prop- erly transmitted from the receiving office, the court should charge the jury to confine their inquiry to the question of proper care or negligence in delivering the message, although there is evidence that it was delayed for sometime at the receiving office. "^^ Where the action is to recover damages for mental or physical suffering, it is Rep. 906. See monographic notes to ""Gulf, etc., R. Co., v. Wilson, 60 West. U. Tel. Co. v. Houghton, 27 Am. Tex. 739. St. Rep. 923; West. U. Tel. Co. v. "'West. U. Tel. Co. v. Cooper, 71 Moore, 54 Am. St. Rep. 521. Tex. 507, 9 S. W. .598. 1 L. R. A. 728, "'Webbe v. West. U. Tel. Co., 169 10 Am. St. Rep. 772. 111. 610, 61 Am. St. Rep. 207, 48 N. E. «» Id. 670. § 513] PLEADING^ PRACTICE AXD EVIDENCE. 485 ])r(ipe'r for tlic iMjurt to distinguish between suffering actually en- 'lured and the sutterin*:- whicli is necessarily an incident to the in- ducing cause of such suffering. Thus, in an action brought to re- cover damages for injuries to a wife by the failure of a telegraph company to deliver a message sent to her physician, the court should charge the jury in such a way as to distinguish between suffering ac- tually endured by her and the suffering necessarily incident to her continement.'"'^ If the plea of defendant should contain averments to the effect that the plaintiff contributed to the loss, and there is evidence to sustain the averments, it will be error for the court to charge the jury that the defendant is liable, if they find that it neg- ligently transmitted or delivered the message.''^^ § 513. Withdrawing the case from the jury. It often becomes of the utmost importance as to whether, in the interest of justice, a case should be withdrawn from the jnry by the court or should be submitted under proper instructions. Where the facts are undisputed and but one legitimate inference could be drawn from them, the question becomes one of law, and the case should, therefore, be decided by the court.'^^ It is held, therefore, in some jurisdictions that, if the evidence is so conclusive that the court would be compelled, under proper application, to set aside a verdict found contrary to the facts in the case, the case should be withdrawn from the jury."^- A mere scintilla of evidence is not suflBcient to require a case to be submitted to a jury,'^^ and if the plaintiff fails to prove tlie cause of action stated in his declaration, or a single and ••Id. "= Randall v. Baltimore, etc.. E. Co.. ■"West. U. Tel. Co. v. ]\rcNair, 23 100 U. S. 478. 3 Sup. Ct. R. 322; Scho- So. (Ala.) 801. field v. Chicago, etc., R. Co. 114 U. S. "Hathaway v. East Tenn.. etc.. R. 615, 5 Sup. Ct. R. 1125: INrynning v. Co., 29 Fed. 489; Pursell v. English. Detroit, etc., R. Co., 64 Mich. 93. 31 SO Ind, 34, 44 Am. Rep. 255; Williams IST W. 147, 8 Am. St. Rep. 804; Gnibe V. Guile, 117 N. Y. 343, 6 L. R. A. v. Missouri Pac. R. Co., 98 Mo. 330, 366; People v. People's Ins. Exch. 126 11 S. W. 736, 4 L. R. A. 776. 111. 466, 18 X. E. 774, 2 L. R. A. 340; "Hathaway v. East Tenn.. etc.. Co.. McMurtry v. Louisville, etc., R. Co., 67 29 Fed. 489. Miss. 601, 7 So. 401. 486 TELEGRAPH AND TELEPHOKE C0:MPAXIES. [§ ')1>'> vital essential element thereof,'^* the case should be withdrawn from the jury upon proper application. But if the facts are disputed and the evidence conflicting, or more than one inference can be drawn from it, the case should be usually left to the determination of the jury."^ As stated elsewhere, presumptions may make out a prima facie case, and when they do, and there is no evidence to the contrary it is proper for the court to withdraw the case from the juiyJ^ Thus, if the plaintiff should prove a delivery to the company and an error made in its transmission to his damage, and no proof is given oii the part of the company to contradict such proof, the case should be withdrawn from the jury on a proper application made by the plain- tiff. A case may be withdrawn from a jury by a demurrer to the evidence,'^^ compulsory nonsuit,^* or a peremptory instruction direct- ing a verdict.'^^ It is not the practice in all jurisdictions to allow a party to demur to the evidence, nor that of moving for a nonsuit, but it seems that nearly all the courts allow either party a peremptory instniction. This latter method is generally the proper way to with- draw a- case from tlie jury, and it is an error of the court, under the rules given, to refuse to withdraw the case when the proper appli- cation and proof has been made.^'' The motion may be made by the company, either after the plaintiff has closed or after the evidence on both sides has been concluded.^ ^ But if the defendant makes his motion at the close of the plaintiff's case, and afterwards introduces ^*Cordell v. New York, etc., R. Co., ■"2 Elliott's Gen. P. §§855-871; 75 X. Y. 330; Meyer v. Manliattan, Pennsylvania Co. v. Stegemeir, 118 etc., Co., (Ind.) 43 N. E. 448; Ilarri- Incl. 305, 1 Am. St. Rep. 136; I. C. R. gan V. Chicago, etc., R. Co., 53 111. Co. v. Brown, (Tenn.) 35 S. W. 560. App. 344. '^Fagundes v. Cent. Pae. R. Co., 7!) "Gardner v. Michigan Cent. R. Co., Cal. 07, 3 L. R. A. 824; McNally v. 150 U. S. 349, 14 Sup. Ct. R. 140; Phoenix Ins. Co., 137 X. Y. 389, 33 X. Beatty v. Mutual, etc., Assn. 75 Fed. E. 475. 65; I. C. R. Co. v. Turner, 71 :\Iiss. ™ Merchants' Bank v. State Bank, 10 402, 14 So. 450; Avinger v. South Car- Wall. (U. S.) 037. olina R. Co., 29 S. C. 265, 13 Am. «° Carroll v. Interstate, etc., Co., 107 St. Itep. 716. Mo. 653, 17 S. W. 886, 17 S. W. 889; ""Talkington v. Parish, 89 Ind. 202; Mynning v. Detroit, etc., Co., 64 Mich. De Wald v. Kansas City, etc., Co., 44 93, 8 Am. St. Rep. 804, 31 X. W. 147. Kan. 586, 24 Pac. 1101; Ohio, etc., R. «' 2 Elliott's Gen. P., §888. Xote to Co. V. Dunn, 138 Ind. 18, 36 X. E. People v. Peoples' Exch. 2 L. R. A. 702. 340. § 513] PLEADING, PRACTICE AND EVIDENCE. 487 evidence, it will be presumed that the company has waived its rij^hts under the motion, and any exceptions which may have been taken to the ruling of the court thereon, unless a renewal is thereafter made.^- The plaintiff cannot, of course, successfully move the court to withdraw the case from the jury until the defendant has intro duced its evidence. ^^ »=" Polinjr V. Ohio River R. Co., 38 W. 209, 25 X. E. 5G9 ; Chica danuiges was the difference between that sum and the amount he earne(l during the time he would have been absent on the visit.-" § 522. Same continued. In another case, the plaintiff sent, through the defendant, to an attorney in BuffaJo, this message: "Hold my case till Tuesday or Thursday. Please reply." The company never delivered the message, and the i)laintiff, receiving no reply, concluded that a post- ponement of his case could not be o*btained. He therefore went with his counsel to Buffalo, where he ascertained that the case had been continued, and in consequence he was coni])elled to make another trip to Buffalo. It was hehl. that he eould recover the expenses of himself and his attorney on the first tri}), an Ct. N. M llnly 200. afl"g. 157 N. Y. 590. " Leonard v. New York, etc., Tel. T. & T.— 32 Co., 41 N. Y. 544; 1 Am. Rep. 446. 498 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 523 remote damages; for this reason — and for the further reason that the subject is, in a sense, foreign to the scope of this work — we shall refrain from entering into it at any great length. While there is a distinction betw^een the two kinds of damages, yet in many instances the distinction is so slight that it is difficult to decide on which side the damages belong. The damages must be the natural and direct result of the breach, or such as flow therefrom by ordinary and nat- ural sequence; if there is an addition of any other negligent act or overpowering force, intervening and aiding in anywise the result, the damages will be too remote to be recovered.^^ The law does not hold these companies liable for every possible consequence for their negli- gence, but only for such as are the probable and natural results of their wrongful acts. § 524. Same continued — speculative damages. It must be borne in mind that, in order to recover damages from telegraph companies for their wrongful acts, the damages must be the result of the most probable and natural consequences of the act, and such as a man of ordinary care and foresight would have con- templated at the time the contract was made, as a probable result of a breach thereof, and not such as depended upon the happening of some possible event. The company's negligence may have had some casual connection with the damages complained of, and may have exerted a material influence in producing the final result, yet thf company cannot be held liable for such damages when subsequent in- » Smith V. West. U. Tel. Co., 83 v. Tel. Co., 30 Ohio St. 555, 27 Am. Ky. 104, 4 Am. St. Rep. 126; West. U. Rep. 485; Reliance Lumber Co. v. Tel. Co. V. Hall, 124 U. S. 444; West. West. U. Tel. Co., 58 Tex. 394, 44 Am. U. Tel. Co. V. Graham, 1 Colo. 230, 9 Rep. 620; West. U. Tel. Co. v. Mun- Am. Rep. 136; Hadley v. West. U.Tel. ford (Tenn.), 3 Pickel, 190, 10 S. W. Co., 115 Ind. 191; West. U. Tel. Co. 318; Hibbard v. West. U. Tel. Co., 33 V. Crall, 39 Kan. 580, 18 Pac. 719; Wis. 558, 14 Am. 775; Stevenson v. Squire v. West. U. Tel. Co., 98 Mass. Montreal Tel. Co., 16 U. C. Q. B. 530; 232, 93 Am. Dec. 157; Landsberger v. Kinghorne v. Montreal Tel. Co., 18 Id. Magnetic Tel. Co., 32 Barb. 530; Me- 60; McAllen v. West. U. Tel. Co., 70 Call V. West. U. Tel. Co., 44 N. Y. Tex. 243, 7 S. W. 715; West. U. Tel. Sup. Ct. 487, 7 Abb. N. C. 151 ; Bald- Co. v. Smith, 76 Tex. 253, 13 S. W. 169, win V. United States Tel. Co., 60 N. Y. Bodkin v. West. U. Tel. Co., 31 Fed. 198, 19 Am. Rep. 154; First Nat. Bank 134. <^ 525] MEASURE OF DAMAGES. 499 tervening causes took advantage of such negligence, and ultimately brought about the result of which complaint is made.^'* So, if the damages are uncertain and contingent and depending upon the hap- pening of some possible event ; in other words, one cannot recover for speculative or uncertain damages. Thus, where a complaint is made that a valuable note was lost by the failure of the company to deliver a telegram to the plaintiif announcing the serious illness of his father — who afterwards died — requesting him to come to his bed- side, the negligence of the company is too remote from the possibility of his recovering the note to entitle him to recover. The court said, in deciding this case: ''Perhaps his father w'ould have given him the note. It would not, however, have been a natural consequence of his going to see him. He might, and he might not, have done so. Xo such loss would have been contemplated by the parties to the sending of the message, had their minds at the time been drawn to the contingency of its not being delivered. ... As well might one claim from a railroad company the amount of a stake in a race upon the ground that if the train had not been negligently delayed, his horse would have arrived in time and won the race." "^ So, also, the loss to plaintiff of customers, resulting from his failure to perform a particular contract, his failure being due to the negligent alteration of a message by the defendant's company, is wholly spec- ulative and conjectural, and cannot be considered in estimating the damages.-^ § 525. Intervening causes. If a subsequent intervening cause takes advantage of the negli- gence of the company, which may have had a casual connection with the result, and ultimately produces the damages complained of, the company will not be liable. In other words, damages cannot be re- covered which are the result of the consequences of secondary and =* Scheffer v. Washington, etc., R. "'' Chapman v. West. U. Tel. Co., 90 Co., LOS U. S, 252; Crain v. Petrie, 6 Ky. 265. Compare West. U. Tel. Co. Hill (N. Y.) 522, 41 Am. Dec. 765; v. Crall, 39 Kan. 580, 18 Pac. 719. Lowery v. West. U. Tel. Co., 60 N. Y. -« Fererro v. West. U. Tel. Co., 9 198, 19 Am. Rep. 154; First Nat. App. Cas. (D. C.) 455. Bank v. West. U. Tel. Co., 30 Ohio St. 555, 27 Am. Rep. 485. 5U0 TELEGRAPH AND TELEPHONE COMPANIES, [§ 52") remote eauses indirectly growing out of a breach of the contract."' Thus, where the loss is "occasioned by two causes — the shortcoming of the telegTaj)h company in not delivering the message and the still shorter coming of a third person in appropriating to himself what belonged to another," the company will not be liable. In this case, a telegTam was delivered to the company asking a remittance of $500 from the addressee. Through the negligence of the company the message was changed so as to read $5,000, and this amount was sent to the sendee who, on receiving this, absconded; it was held that the company was not liable. The court, said : ''The embezzle- ment could not reasonably have been expected, and did not naturally flow from the wrong of the defendant. The cause of the loss was the criminal act of Brown, conceived and executed after the defend- ant had ceased to have any relation to the money. The plaintift's right of action for the negligence was complete before the money was misappropriated by Brown ; and if suit had then been brought, the damages would not have been measured by the amount of money sent by the plaintiff. The most that can be said is, that by the neg- ligence of the company an opportunity was afforded Brown to com- mit a fraud upon the plaintiff. This does not, within the cases, make the company chargeable with the loss resulting from the con- version." ^^ The same ruling was held in a case similar to the above, where the plaintiff sent a message inquiring as to the financial stand- ing of certain parties who had presented drafts to them and con- cluded: ''If everything is alright, you need not dispatch. If not right, answer by Saturday evening (13th)." On Monday at 4:55 p. m. a reply was delivered to the company stating "Parties will accept if bill of lading accompanies draft. Parties stand fair." This mes- sage was never transmitted and before three o'clock on the same day. the plaintiff, having received no reply, cashed the drafts, which were eventually lost. The court held that the dishonesty of the parties who drew the draft, and not the negligence of the company was the cause of the loss.^^ " Pegrani v. West. U. Tel. Co.. 100 '" Lowery v. \\ est. V. Tel. Co., GO X. N. C. 28, 6. S. E. 770, 6 Am. St. Rep. V. 198. 10 Am. Rep. 154. 557. See note 24 for other cases. '" First Nat. Bank v. West. U. Tel. Co., 30 Ohio St. 55.5, 27 Am. Rep. 485. (^ 526] MKASUKK OF DAMAGES, oOl § 526. Benefit of contract — loss. If the company negligently fails to transmit or deliver a message, relating to a sale or purchase, the profit or benefit expected to be made is too remote and speculative to be recovered when the contract is subject to Ix' defeated by aiiDrlicr's will.'''" Thus, in an action to recover damages caused by the comi)any's delay in transmitting and delivering the following message: ''Buy ten thousand if yni think it safe;" the dispatch related to the purchase of oil, which, on the day on which rhc message should have been delivered, was selling at $1.17 per barrel. On the next day the oil advanced to $1.35 per barrel, and tlie ])erson to whom the message was sent did not deem it advisable to l)iiv, nor did he buy at any subsequent date. There was no evidence to show that the sender of the message intended to buy with the object of reselling immediately at a profit, or that he could have sold at a profit at any future time if he had bought. It was held that only the price of the message could be recovered. The court said, in deciding this case: ''It is clear that in point of fact the plaintiff has not suffered any actual loss. Xo transaction was in fact niiidc, and there being neither a purchase nor a sale, there was no actual difference between the sums paid and the sums re- ceived in consequence of it which could be set down in a profit and loss account. All that can be said to have been lost was the opportu- nity of buying on November !>tli, and making a profit by selling on the 10th, the sale on that day being i)urely contingent, without any- thing in the case to show that it was even probable or intended, much le5s that it would certaiidy have taken place." ^^ In another case, the suit was brought for the failure to deliver the following message : "Ship oil as soon as possible, at very best rates you can." Owing to the non-receipt of the dispatch, the oil was not sent, and the plain- riff claimed tliat lie lost great gains and ])rofits liy the delay caused in the shipping of his oil. The court held that he could not recover the profits which he might have made on the oil, because they could not be fairly considered as having been in the contemplation of the =« Johnson v. ^A'est. U. Tel. Co., 79 ==' West. U. Tel. Co. v. Hall, 124 U. Miss. 58, 29 So. 787, 89 Am. St. Rep. S. 444. 584: :\rlES. [§ 532 making tlic contract, that any j)ai*ticular damage or injury would be the probable result of a breach of the contract on his part." ^^ It is true that these companies must exercise as much care and diligence in the transmission of unintelligible messages as those which show the importance and urgency on their face, although they would know in one and not in the other the result of their dereliction and care- lessness. It is one of the duties of these companies to refrain from divulging the contents of messages entrusted to their care ; this is provided for by statutes in some states, and the operator wdio violates such may be subjected to a penalty. Therefore, if the company may be held liable for all damages resulting proximately and naturally from its negligence, when the message shows its importance and pur- pose on its face, whereby the company is informed of the probable results of its negligence ; and if the secrecy of one is as safe as the other, it should be the duty of the sender to inform the company, in some way, of the importance of the message in order to hold it liable for damages to which it would not otherwise be subjected in case the message was unintelligible. § 533. Contrary view. There are some very j)lausible reasons given by some courts for holding a contrary view on this subject. These courts hold that the company is liable for all damages resulting proximately and directly from the company's failure to transmit correctlj^ or deliver promptly all messages delivered to it, whether thev be intelligible or unintelli- gible to the company at the time they are accepted. ^^ The ground on which they base their views is, that it is the duty of these com- panies to exercise as much care and diligence in the transmission of these kinds of messages as one M'hose importance is shown on its face, or where the information of this fact is otherwise mven to them. x\n- other reason entertained is, that most messages of gTeat importance are w^ritten in cipher or otherwise unintelligible language. In other words, a large part of all messages of a commercial or business nature are sent in cipher, known only to the sender and addressee ; and this fact suggests to the company that the damages resulting from its ^=Candee v. West. U. Tel. Co., 34 "See note 47. Wis. 471, 17 Am. Rep. 452. <§ 534] MEASUEE OF DAMAGES. 501> nogligciicc will lie usually f the conipatiy's mind at the time the message was accepted, as wuuld most probably Ix- the nat- ural and direct result of its carelessness or negligence. While these reasons appear at first sight as unanswerable, yet we feel that they are unsound. § 534. Same continued — information on face of the message. As has been said, a great many messages of a business or commer- cial nature are sent in cipher, or language which is otherwise luiin- telligible to the company or its operator, and the only information the o])erator has of the importance and urgency of the message is such as is gathered from its face and the company should only be lia- ble for nominal damages in negligently transmitting or delivering it.^'* Thus, the jdaintitf, who had been offered a certain price for his interest in a certain oil well, telegraphed his agent this message: '"Telegraph me at Rochester what that well is doing." This was not delivered for several days after it was sent. In the meantime, plain- tilf went to Rochester, and not receiving any reply, sold his interest in the well for much less than it was worth. It was held that nominal damages could only be recovered. In delivering the opinion in this case the court said : "For all the purposes for which the plaintiif de- sired the information, the message might as well have been in a ci- pher or in an unknown tongue. It indicated nothing to put the de- fendant upon the alert, or from which it could be inferred that any special or pecuniary loss would ensue from a non-delivery of it." ^^ In another case, the plaintiff's contracte«l with some parties in San Francisco to furnish tiiree hundred Colt's revolvers. They were to receive a commission for their services and were bound to pay a pen- alty if tluy failed to perform their part of the agreement. They sent by the Pacific Mail Company to the agents at the place, $1,000 to be used in their purchase, and sent the following message over the defendant's line to said agents: "Get one thousand dollars of the ]\lail ('niiipany." This message was, through the company's neg- "See note 48. "Baldwin v. Inited States Tel. Co., 4.. X. Y. 744. t> Am. Rep. 1G5. 510 TELEGRAPH AKD TELEPHONE COMPANIES. [§ 534 ligence so long delayed that the contract could not be performed. It was held that the message did not show on its face its importance, and the plaintiff could only recover nominal damages.^^ § 535. When message discloses its importance. Although a message may be couched in unusual, or trade language, if it is sufficiently plain to indicate that it relates to business trans- action of much importance, and that loss will probably result unless it is promptly transmitted and delivered, recovery will not be limited to nominal damages. Thus, it has been held that the following mes- sages contain sufficient information on their face to indicate their im- portance : "Cover two hundred September, one hundred August." ^"^ This meant sell two hundred bales of cotton delivered in September and one hundred delivered in August. "Ten cars new two white Au- gust shipment, fifty-six half." °^ This was an offer to sell two cars of ]^o. 2 white oats, to be shipped in August, at fifty-six and one half cents per bushel. "Sell one hundred Western Union. Answer price."^^ "Want your cattle in the morning; meet me at pasture."^*^ It was held that this was sufficient to authorize the inference that a delay until the day following would result in confusion, and loss. "Ship your hogs at once." The court said: "The obvious reason of this is evidence on its face. It clearly imports that to meet a good market for hogs there must be shipment at once, and that by a delay a good market will be lost. It is equivalent to saying, if you ship at once you will obtain gains of the purchase and sale of your hogs. If you delay, these gains will be lost by the market price declining. It is most obvious, therefore, that the parties contemplated this very thing."^^ "Ship cargo named at 90, if you can secure freight at 10." This was sufficient to inform the operator that this was an accep- tance of an offer to sell a cargo at the price named, if freight could »• Landsberger v. Mafrnetic Tel. Co., ^» Tyler v. West. U. Tel. Co., 60 111. 32 Barb. 530. 421, 14 Am. Rep. 38. "West. U. Tel. Co. v. Blanchard, ""Hadley v. West. U. Tel. Co., 116 68 Ga. 299, 45 Am. Eep. 480. Ir.d. 191. =«West. U. Tel. Co. v. Harris, 19 111. " Manville v. West. U. Tel. Co., 37 App. 347. Iowa 214, 18 Am. Rep. 8. <^ 536] MEASURE OF DA^klAGES. 511 be procured at ten cents."- "If we have and Old Sutlu-rland on hand, sell same before board. Buy five Hudson at board.""^ "Will takf two cars sixteens. Ship soon as convenient via West Shore." This was sent after the sender had received on the same day, through the same office a dispatch from Armour & Company, Chicago, containing these words: "Pickled hams, sixteens, nine and a half." In deliv- ering the opinion the court, said: "We think the contents of this message were such as to indicate clearly to defendant that it was important, that a contract for the purchase of two carloads of hams was being made by the parties, and that a failure to send the mes- sage must result in such loss to the parties as would naturally follow from a failure to complete such contract."*^"* "Buy fifty ISTorth West- ern — fifty Prairie du Chein, limit forty-five." This contained suffi- cient information on its face."^ "Car cribs six sixty, c. a. f., prompt." This was sent in reply to the following : Quote cribs loose, and strips packed." In the meat trade, "cribs" means clear ribs, and "c. a. f." means cost and freight.*''^ "You had better come and attend to your claim at once.""^ "Send a bay horse to-day, Mack loads to-night." Mack was a well-known horsebuyer who was in the habit of shipping horses from the vicinity of the place from which the message was sent.®® The following was held against the great weight of modern authority as being insufficient: "Will take two hundred extra mess, price named." This was in reply to a message containing the fol- lowing: "Extra mess, $28.75."«» § 536. Same continued — need not be informed of all facts. It is not necessary that the company be informed of all the facts and circimistances pertaining to the business transaction about which the message is sent, in order for this rule to hold good. It is enough "True V. International Tel. Co., 60 Tenn. 554, 4 L. R. A. 6G0, 10 Am. St. Me. 9, 11 Am. Rep. 156. Rep. 699. "Rittenhouse v .Independent Line ""West. U. Tel. Co. v. Sheffield, 71 of Tel., 44 N. Y. 263, 4 Am. Rep. 673. Tex. 570, 10 S. W. 752. '":\rowry V. West. U. Tel. Co., 51 «« Thompson v. West. U. Tel. Co., 64 Hun 126. Wis. 531. " L'nited States Tel. Co. v. Wenger, «» Beaupre v. Pacific, etc., Tel. Co., 55 Pa. St. 262, 93 Am. Dec. 751. 21 Minn. 155. «> Pepper v. West. U. Tel. Co., 87 512 TELEGKAPll AXD TELEPHONE COMPANIES. [§ 536 if there are sufficient facts disclosed by the face of the message to in- dicate its importance, and the probable consequences of its failure in not being received by the addressee as delivered to the company.^" A message containing these "words : ''Fifty-five cents, usual terms, quick acceptance,"' indicates that it relates to a business transaction and to a contemplated trade and puts the comapny on notice that it is of im- portance.'^ Some courts have held that a message is sufficiently plain if its language is such as to put the company on inquiry.^- We hardly think that it is the duty of these companies to exert them- selves to make any extensive inquiry of the nature and purpose of a message, when the language of such puts them on inquiry. However, if the facts could be ascertained by a little inconvenience on their part, it would be, in our opinion, their duty to make such inquiry. The nature of the business of these companies is to expedite matters in the gTcatest possible haste ; so, to require them to ascertain facts concerning the nature and purposes of messages delivered, would nec- essarily destroy the effects of such a business. § 537. Question for jury. There can be no tixcd rule laid down by which a court may be guid- in detennining whether a message contains such Avords as will be suffi- ciently plain to indicate its importance. As was said, some courts hold that the company will not be limited to nominal damages for negligently transmitting or delivering a message, and that too, wheth- er the company did or did not know the purpose of the message ; but the weight of authority is undouljtedly to the contrary. Where there is doubt as to whether the words contained in the message were suffi- cient to indicate its importance, and whether this is true with re- spect to the operator, or whether the latter was made more certain of ■» Evans v. West. U. Tel. Co., 102 Am. Rep. 8; Garrett v. West. U. Tel. Iowa 219, 71 N. W. 219; Harkness v. Co., 8.3 Iowa 2.57; McPeek v. West. U. West. U. Tel. Co., 73 Iowa, 190, 5 Am. Tel. Co., 107 Iowa 356, 70 Am. St. Rep. St. Rep. 672; Pepper v. West. U. Tel. 20.5, 43 L. R. A. 214, 78 N. W. 63. Co., 87 Tenn. 554, 11 S. W. 783, 10 Am. " Fererro v. West. U. Tel. Co.. 9 St. Rep. 699, 4 L. R. A. 660; Gulf, etc.. App. Cas. (D. C.) 455. R. Co. V. Loonie, 82 Tex. 323, 18 S. W. " West. U. Tel. Co. v. Carter. 20 221, 27 Am. St. Rep. 891; Manville v. S. W. (Tex.) 834; Thompson on Wfst. r. Tel. Co., 37 Iowa 214, 18 Elect. § 3(i5. ^ 538] MEASUEE OF DAMAGES. 513 its importance by extrinsic facts, are questions for the jury.^^ The question as to the operator's having transmitted similar messages of whose importance he was infonned, or the frequency with which fam- iliar words are used, their familiarity in trade circles, and whether the same have been communicated to the company, are matters to be <'Onsidered iji detcrniining their sufficiency. As -said, no rule can be laid down for determining this question, but all facts and circumstan- ces connected with the particular message should be considered. If the message is a summons for a physician, and the operator knows him to be such, it would not be a question for the jviry, since it is suf- Hciently plain on its face to indicate its importance.'^'* When the message announced the illness of some one, where the operator knew that the addressee was related to the person announced as ill;"^*^ or where the message directed the sender's attorney to attach property of a failing debtor; or advising the plaintiff of the fact that a debtor is about to fail or some similar facts'*" the message, in cither case, will be sufficiently plain to indicate its importance, and the company will not be limited to nominal damages for its failure to transmit or de- liver correctly and promptly. All damages which would ordinarily re- sult from the lack of medical attention, or from mental suffering, or for the loss of n debt, may 1)C recovered. § 538. Same continued — extrinsic facts of importance. When' the message docs not contain words sufficiently plain to in- dicate its importance, but there arc extrinsic facts acquired by the company at the time the contract of sending is made which apprises it of the importance of the message, the company will be liable for a '» Cannon v. West. U. Tel. Co., 100 Pearce, .34 So. (Miss.) 152; Moaders X. Gar. 300, 6 S. E. 731, 6 Am. St. v. West. U. Tel. Co., 132 N. Car. 40. Rep. 590; Candoe v. West. U. Tel. Co., 43 S. E. 512; We^t. U. Tel. Co. v. 34 Wis. 471, 17 Am. Rep. 452; Lands- Wilson, 51 S. W. (Tex.) 521; West. V. berger v. Magnetic Tel. Co., 32 Barb. Tel. Co. v. T.inii, 87 Tex. 7. 47 Am. (N. Y.) 530; Postal Tel. Cable etc., St. Rep. 58. Co. V. Lathrop, 131 111. 575, 7 L. R. A. ■"" Pacific Postal Tel. Cable Co. v. 471, 19 Am. St. Rep. 55, 23 N. E. 583. Fleischur (C. C. A.) 60 Fed. 899, 55 '*West. U. Tel. Co. v. Church, 90 N". Fed. 738; Bierhaus v. West. V. Tol. W. 878, 57 L. R. A. 905. Co., 8 Ind. App. 246; Martin v. We^t. •MVest. U. Tel. Co. v. Eakridge. 7 U. Tel. Co.. 1 Tex. Civ, App. 143. Fiid. App. 208; West. U. Tel. Co. v. T. & T.— 33 514 TELEGRAPH AND TELEPHONE COMPANIES. \_^ 538 failure to send or deliver the message accurately and promptly, just the same as if it showed this fact on its face/'^ It is claimed hy some authority/* that the extrinsic facts must have been acquired from the sender at the time the contract was made or prior thereto, if they were acquired after the making of the contract, they could not be considered as part of the contract. We are inclined to think it is necessary that they be known at the time of making the contract, else the company could not have contemplat- ed the result of a failure to properly discharge its duty with respect to the message. The rule is that the resulting damages of the com- pany's negligence must have entered into the contemplation of the parties' minds at the time the contract was made. We do not, how- ever, think that the company is precluded from deriving the informa- tion from sources other than from the sender, but in determining the question, the court and the jury may ascertain whether the company was informed from other sources. In other words, all the facts and circumstances which have any reference to the acceptance of the par- ticular message, should be considered in determining this question. When notice of the main facts is given, the company is chargeable wuth notice of every incidental fact that would attend the transaction, and such as could have then been ascertained by the most minute in- quiry.'^^ If the operator was in the habit of transmitting other mes- sages for similar purposes, of the importance of which he had been informed, or if the sender was carrying on a certain kind of busi- ness and was accustomed to send similar messages in regard to such business over the company's lines, the latter is chargeable with notice of its importance, and any circumstances which tend to sustain these facts may be showm.*^ It has been held that the same rule will apply "McPeek v. West. U. Tel. Co., 107 200; Eittenhouse v. Independent Line Iowa 356, 78 N. W. 63, 43 L. R. A. of Tel. 44 N. Y. 263, 34 Am. Rep. 673. 214, 70 Am. St. Rep. 205; West. U. ''« Gray on Tel. Co., §89. Tel. Co. V. Edsall, 74 Tex. 329, 15 " West. U. Tel. Co. v. Edsall, 74 Tex. Am. St. Rep. 835; West. U. Tel. Co. 329, 15 Am. St. Rep. 835. V. Williford, 27 S. W. (Tex.) 700; «» Postal Tel. Cable Co. v. Lathrop, West. U. Tel. Co. v. Jobe, 6 Tex. Civ. 131 111. 575, 23 N. E. 583, 7 L. R. A. App. 403; Herron v. West. U. Tel. Co., 474, 19 Am. St. Rep. 55; Mackay v. 90 Iowa 129, 57 N. W. 976; Sprague West. U. Tel. Co., 16 Nev. 227; West. V West. U. Tel. Co., Daly (N. Y.) U. Tel. Co. v. Williford, 27 S. W. § 539] MEASURE OF DAMAGES, .15 when the message is in cipher as if written in the English hinguage.®^ § 539. Rule in "mental anguish cases." The rule just discussed is not changed by the fact that the nature and purpose of the message relates to some object which, if not prop- erly accomplished, will result in injury to the feelings of some one interested in the message. It is generally held that where a telegraph company fails to correctly and promptly transmit and deliver a mes- sage relating to the serious illness, death or burial of some one in whom the sender or addressee is interested, it will be liable in dam- ages for the mental anguish suffered by either of these parties, if the company had information of the nature and purpose of such mes- sage.^" If the message does not contain words sufficiently plain on its face to apprise the company of such fact, and there is no extrinsic evidence imparted to the latter at the time of accepting the message to sustain such fact, the company will be liable only for nominal dam- ages.^^ But, on the other hand, if the company is informed, either by the face of the message or by extrinsic evidence, that it relates to the dano-crous illness, death or the time of the burial of a relative, or (Tex.) 700; Erie Tel., etc., Co. v. Grims, 82 Tex. 89; Roach v. Jones, 18 Tex. Civ. App. 231, 44 S.W. 677; West. U. Tel. Co. V. Nagle, 11 Tex. Civ App. 539. "West. U. Tel. Co. v. Hyer, 22 Fla. f.37, 1 Am. St. Rep. 222. ^ Reese v. West. U. Tel. Co., 123 Ind. 294, 21 N. E. 163, 7 L. R. A. 583n; Lynn v. West. U. Tel. Co., 123 N. C. 129, 31 S. E. 350; Cashion v. West. U. Tel. Co., 123 N. Car. 267, 31 S. E. 493, 124 Ind. 459, 32 S. E. 746, 45 L. R. A. 160; Burnett v. West. U. Tel. Co., 128 N. Car. 103, 38 S. E. 294; Meadows v. West. U. Tel. Co., 8 Tex. Civ. App. 176, 27 S. W. 760; West. U. Tel. Co. v. Randies, 34 S. W. 447. »^West. U. Tel. Co. v. Todd, 22 Ind. App. 701 : Wpist. U. Tel. Co. v. Pearce, 31 So. (Miss.) 152; Sherrill v. West U. Tel. Co., 116 N. C. 655, 21 S. E. 429 ; Cashion v. West. U. Tel. Co., 123 N. C. 267, ;il S. E. 493; Darlington v. West. U. Tel. Co., 127 N. C. 448, 37 S. E. 479; Sparkman v. West. U- Tel. Co., 133 N. C. 447, 45 S. E. 827; Konnon v. West. U. Tel. Co., 126 N. C. 232, 25 S. E. 468; Ikard v. West. U. Tel. Co., 22 S. W. (Tex.) 534; \^'est. U. Tel. Co. v. Woniack, 9 Tex. Civ. App. 607; West. U. Tel. Co. v. Murraj% 26 Tex. Civ. App. 207; West. U. Tel. Co. V. May, 8 Tex. Civ. App. 176, 27 S. W. 760; West. U. Tel. Co. \. Kerr, 4 Tex. Civ. App. 280, 23 S. W. 564; West. U. Tel. Co. v. Smith, 26 S. W. (Tex.) 216; Davis v. West. U. Tel. Co., 40 W. Va. 48, 32 S. E. 1026. 516 TELEGRAPH AXD TELEPIIOA^E COMPANIES. ['§ 539 where it requests the addressee to come at once or some request of like import, the company will be liable for all mental suffering resulting proximately and directly from the failure to properly transmit or deliver the message. § 540. Same continued — relationship of person affected. The above rule is considered further, in this, that the company must not only be informed that the message relates to the serious ill- ness, death or the time set for burial of some one in whom the j)lain- tiff is interested, but it must further be informed that the party about whom the message concerns is a near relative of his. This may either be imparted to the company by the face of the message, where the wording is sufficiently plain to indicate this important fact, or it may derive this information from extrinsic evidence alone, or in connection wdth the facts on the face of the message.^* It seems that it is not as necessary for the face of the message to be plain and clear, with respect to a message of this character, and one of a business na- ture when written unintelligibly ; but if there is any notice or infor- mation of its purpose, it becomes the duty of the company to make further inquiry. ^^ While these companies must have some informa- tion of the relationship of the parties, yet it is not 'necessary that the exact relationship of the parties, or that the family pedigree, should be set out in the message, or even given to the company by out- side information. The reason for the later view is the same as that given above in regard to the brevity in which messages should be prepared. The only apparent effect this would have, as said in regard to "repeating" a message, would be "to increase the revenue of these «* Davis V. West. U. Tel. Co., 107 Ky. 8G0; West. U. Tel. Co. v. Moore, 76 .527, .54 S. W. 849, 92 Am. St. Rep. Tex. 66, 12 S. W. 949, 18 Am. St. Eep. 371: Bennett v. West. U. Tel. Co., 128 25; West. U. Tel. Co. v. Rosentreter, N. C. 103, 38 S. E. 294; Meadows ' 80 Tex. 45G, 15 S. W. 1089; Potts v. V. West. U. xel. Co., 132 N. C. 40, West. U. Tel. Co., 82 Tex. 545, 18 S. 43 S. E. 572; West. U. Tel. Co. v. W. 604; West. U. Tel. Co. v. Nations, Broesche, 72 Tex. 654, 13 Am. St. Rep. 82 Tex. 539, 27 Am. St. Rep. 914; 843; West. U. Tel. Co. v. Adams, 75 West. U. Tel. Co. v. Carter, 20 S. W. Tex. 531, 12 S. W. 857, 6 L. R. A. 844, (Tex.) 834. 16 Am. St. Rep. 920; West. U. Tel. '^ West. V. 'I'd. Co. v. Moore, 76 Co. V. Feegles, 75 Tex. 537, 12 S. W. Tex. 66, 18 Am. St. Rep. 25. >§> 541] MEASUJiE OF DAMAGKS. 517 companies."'""' In a recent decision rendered in Texas, the rule seems to be that the company is charged with knowledge of the relationship of the parties by the mere fact of the nature of the message, where it is one relating to the serious illness, death or time of funeral, or the like.*'^ ''When such comiiiniiiention relates to sickness and death, there accompanies them a common-sense suggestion that they are of importance, and that tlie ]iersons addressed have in them a serious interest. "^^ § 541. Same continued — reason of rule — nearness of relationship. The reason of the rule that the relationship of the parties must be known by the company at the time the message is accepted, in order to recover damages for mental suffering, as the natural and direct result of its failure to discharge its duty, is obvious. No one can recover damages, as was said in the beginning of this chapter, unless his rights have been infringed upon, and then they are only given as a compensation for such infringement. It is true, that we grieve to hear of the serious illness or death of close friends, but it would be wholly and entirely foreign to sound reason to say that we would suffer the same pangs and untold grief at the death of a friend as we would to hear of the death of a member of one's family or close- ly of kin. It is only when this relationship exists, or is presumed to exist — which is a presumption all relatives in consanguinity bear — that the mind can become so impaired by suffering as to entitle the ])orson to damages for such. In other words, there must be such an injury to the feelings or sufferings of mind, as can be, in a sense, measured by a pecuniary compensation, before the party can recover ; and this is never presumed, except where the parties are closely re- lated by blood. Therefore, if tlie message concerns some one who does not stand in this relation, the company will not be liable for damages caused by mental suffering, although it may be informed of its pur- pose. However, if the message concerns the dangerous illness, death 70. "•West. U. Tel. Co. V. Tyler, 74 111. v. Smith (Tex.), 33 S. W. 742: West. U. Tel. Co. V. Adams, 75 Tex. 531. ^MVest. U. Tel. Co. v. Coflin. 88 Tex. jo S. \V. 857. G L. E. A. 844, 16 Ain. fl4. 30 S. W. 89fi; West. U. Tel. Co. g^. -^ ,).,q V. Luck, 91 Tex. 178, 41 S. W. 469, 66 Am. St. Rep. 870; West. U. Tel. Co Id. 51S TELEGRAPH AA'D TELEPHONE COMPANIES. [<§> 541 or time of burial of some one related to plaintiff, and it is affirma- tively shown that there was a peculiar tenderness of relation existing between the parties, and the company is informed of this fact, it would be liable for mental suffering for negligently transmitting or delivering the message.®® § 542. Same continued — interest of the party in the transaction. When the person is not a party to the message, but is greatly inter- ested in the results, the company must be informed of his interest at the acceptance of the message in order to be held liable.^" He is not a party to the contract, and only such damages can be recovered as result from the company's negligence in transmitting or delivering the message, and such as might have been presumed to have entered into the contemplation of the minds of the contracting parties at the time the contract was made. It is the result of the breach supposed to have been contemplated by the contracting parties, and not those entertain- ed by some other, of whose existence the company would not likely be aware. If, however, the company is informed that the message concerns some person who is not a party to the message, it would be liable to him for the resulting damages just as if he were a party to the message ; and, it matters not in what way it may derive this in- formation.^^ It seems, that the damages due a wife or husband for mental suffering are regarded as joint and either may maintain a suit for the recovery of same.®^ Thus, it was held that the wife may recover for mental suffering caused by the failure of her rela- tives to meet her at a station and assist in caring for the body of her dead child, although the message was sent by her husband, and the company was not notified of her interest in the message. ** West. U. Tel. Co. v. Coffin, 88 Tex. v. Grigsley, 29 S. W. 406. Compare 94, 30 S. W. 896; West. U. Tel. Co. Landie v. West. U. Tel. Co., 124 K V. McMillan, 30 S. W. (Tex.) 298; C. 528, 32, S. E. 886; West. U. Tel. West. U. Tel. Co. v. Garrett, 34 (Tex.) Co. v. Carter, 20 S. W. 834; West. U. S. W. 649. Tel. Co. v. Russell, 31 S. W. 698. ••Morrow v. West. U. Tel. Co., 107 "West. U. Tel. Co. v. Evans, 5 Tex. Ky. 517; Driden v. West. U. Tel. Co., Civ. App. 55, 23 S. W. 998. 54 S. W. 830 ; Southwestern Tel., etc., •== Loper v. West. U. Tel. Co., 70 Tex. Co. V. Gotcher, 93 Tex. 114, 53 S. W. 689, 8 S. W. 600. See also Southwest- 686; West. U. Tel. Co. v. Motley, 27 ern U. Tel. Co. v. Dale, 27 S. W. 1059. S. W. (Tex.) 51; West. U. Tel. Co. § 543] MEASURE OF DAMAGES. 519 § 543. Same continued — deprived of the addressee's consolation. This brings us to a question with peculiar features,that is, Whether or not damages may be recovered for mental suffering caused by one being deprived of the presence and consolation of some close rela- tive, as the direct result of the company's dereliction of duty ? In other words, can a person recover damages for mental suffering caus- ed by the absence of some one who was deprived of being present with the former while in deep grief, the loss of whose consolation was the result of the company's negligence ? It seems that if the company was informed that the person would suffer, or that the consolation of the addressee was the main purpose of the message,and without which great suffering would be endured, it would be liable for failing to dis- charge its duty ; otherwise it would not be liable.®^ Thus, where the wife, who was at the deathbed of her husband, sent a telegram to her daughter, requesting the latter to come to her, the company would be liable to the daughter for damages caused by the mental suffering, where the message was delayed and she otherwise would have reach- ed her father in time to have seen him before his death. But it would not be liable in damages to the mother for mental suffering caused by the want of the daughter's consolation, unless the company had know- ledge that this would be the natural and direct result of its negli- gence.®* •'West. U. Tel. Co. v. Luck, 91 Tex. so West. U. Tel. Co. v. Burrow, 10 178, 41 S. W. 469, 66 Am. St. Rep. Tex. Civ. App. 122, 30 S. W. 378. 870; West. U. Tel. Co. v. Nations, 82 •♦West. U. Tel. Co. v. Luck, 91 Tex. Tex. 530, 27 Am. St. Rep. 914. See al- 178, 66 Am. St. Rep. 869, 41 S. W. 469. CHAPTER XXII. MEASURE OF DAMAGES— CONTINUED— LOSS OF EXPECTED PROFITS ON SALES BY ERROR OR NEG- LIGENCE IN TRANSMISSION. § 544. In general. 545. Sales prevented — plaintiff vendor — in general — legal sales. 546. Same continued — measure of damages. 547. Loss must be actual and substantial. 548. Orders for goods not delivered — in general. 549. Same continued — measure of damages. 550. Order for goods erroneously transmitted — purchaser's duty 551. Same continued — goods shipped to wrong place. 552. Same continued — stock, bonds, etc. 553. Messages directing agent to sell or purchase. 554. Same continued — order to close option to purchase. 555. Announcement of prices or state of market. 556. Contemplating shipping — delay in message— loss. § 544. In general. It is our purpose to discuss at some length, in this chapter, the loss of expected profits in transactions or sales, caused by the neg- ligence of telegraph companies in transmitting or delivering mes- sages, and the means by which the amount of damage or loss sus- tained thereby may be ascertained. The negligence of telegraph com- panies may be the proximate cause of preventing contracts of sale from being consummated, or it may prevent a contract from being made at all whereby great substantial losses may be suffered ; in either case, the company would be liable for all direct and proximate losses in the way of actual and substantial gains and profits which would be the natural result of same. The company is the agency or means by which the contracting parties are brought together, and its negligent act in transmitting or delivering the message containing an accept- ance of a contract, would have the same effect as if it were a direct breach of the contract. A leading American authority, with respect to the measure of damages for a breach of a contract, holds : "The party injured by a breach of a contract is entitled to recover all his damages, including gains prevented, as well as losses sustained, pro- vided they are certain and such as might naturally be expected to (520) '^ 545] MEASURE OF DAMAGES. 521 follow from the breach. It is only uncertain and contingent profits, therefore, which the law excludes; not such as are the immediate and necessary result of the breach of the contract, which may be fairly supposed to have entered into the contemplation of the parties when they toade it, and are capable of being definitely ascertained by ref- erence to the established market rates." ^ This rule may be consid- ered as the basis of the measure of damages which may have been in- curred by reason of the company's negligence. § 545. Sales prevented — plaintiff vendor — in general — legal sales. It is often the case that parties who are at a distant place con- summate certain sales by means of telegraph companies, and the sub- ject-matter of the sale may be either at or near the place of the pur- chaser, and there to be delivered ; or it may be where the vendor is and to be delivered to the former at some other place. Much de- pends in the sale on the accuracy and promptness of the company, since one small error on its part might be of serious injury to one of the contracting parties. It is always their duty to send the mes- sage in its exact language and as prepared by the sender, and de- liver it as speedily as possibly. More especially is this the case where the message concerns sales or commercial transactions, which fact is often more or less made known to them by the character of the message. It is not meant, however that the rule applies to sales or commercial transactions of all kinds ; it only applies to legal sales or transactions. As said in a foi-mer part of this work, telegraph companies were not incorporated to perpetrate crimes, or to carry on illegal transactions; their purposes are lawful, and only such can they be under any duty to perform. The object of the law is to pre- vent evildoers from carrying on their nefarious acts and misdoings ; to be sure, the law would not create any being or institution whose object would be in direct conflict, and inconsistent with the princi- ples of the law itself. So, it follows, that these companies would be under no obligation to discharge any act Avhich was in itself illegal or immoral. ?^o sale or transaction which showed on its face the il- legality or immorality of the affair, or which was otherwise made ' Griffin v. Calver, Ifi \. Y. 489, cited in 18 Am. Rep. 12. 522 TELEGRAPH AND TELEPHONE COMPANIES. [§ 545 known to the company, shall be considered within the scope of this chapter, but only such as arc legal and moral in effect. § 546. Same continued — measure of damages. The measure of damages which may be recovered from a telegraph company for negligently transmitting or delivering a message, whereby a sale has been prevented, is the difference between the price of the subject-matter of sale at the time it would have been sold, had it not been for such negligence, and the price the plaintiff is thereafter enabled to obtain therefor, after exercising reasonable dili- gence to make such latter sale,^ together with expenses necessarily in- curred in consequence of the delay or failure.^ In other words, if the plaintiff could have gotten a certain price for the thing to be sold at the time the message was delivered to the company, but was, after the negligence of the company in transmitting or delivering the mes- sage, only able to sell at a less price, and that by reasonable diligence ; the measure of damages would be the difference between the two prices, together with the necessary expenses incurred in making the latter sale. The object of the law in such cases is to compensate the injured party as near as possible for the loss incurred. Thus, in a case where the words contained in the message were, "Ship your hogs at once," the message was delayed four days, and in consequence thereof the plaintiff had to keep his hogs four days longer than he would have done, thus incurring expenses for feeding, etc., and hav- ing to sell at a decreased price. It was held that he might recover the difference, at the place of delivery, between the market value of the hogs on the day when they would have been delivered had the message been delivered promptly and the market value on the 'West. U. Tel. Co. v. Lindley, 89 v. Williford, 2 Tex. Civ. App. 574, 27 Ga. 484, 15 L. R. A. 3G; West. U. S. W. 700; Brooks v. West. U. Tel. Tel. Co. V. James, 90 Ga. 254, IG S. E. Co., 72 Pac. (Utah) 499. Compare 813; Evans v. West. U. Tel. Co., 102 West. U. Tel. Co. v. Harman, 2 Tex. Iowa 219, 71 N. W. 219; Herron v. Civ. App. 100. West. U. Tel. Co., 90 Iowa 129, 57 « West. U. Tel. Co. v. Collins, 45 N. W. 696; West. U. Tel. Co. v. Nye, Kan. 88, 10 L. R. A. 575n, 25 Pac. 187; etc.. Grain Co., 97 N. W. (Neb.) 305; West. U. Tel. Co. v. Shumate, 2 Tex. \Aest. U. Tel. Co. v. Brown, 84 Tex. Civ. App. 429; Lane v. Montreal Tel. 54, 19 S. W. 336; West. U. Tel. Co. Co., 7 U. C. C. P. 23. ^ 547] MEASURE OF DAMAGES. 123 Jay when the i)laiiitifY was able to deliver them after the re- ceipt of the message, together with the extra expense to which he was subjected.'* If there was any extra expense incurred in drayage, storage or transportatior, or if he was out transportation or message fares or charges in consummating the last sale, this may be recovered. In other words, to brief the rule in one sentence, the plaintiff may recover the profits he would have reaped from the bargain had it been perfected. So, where the message concerns the sale and shipment of a carload of mules, and on account of the delay in the delivery of a message to the owner of the mules they were shipped on a subsequent day and sold at a reduction, he was allowed to recover the profit he would have made had the message not been delayed.^ It is not neces- sary that the profit should have been made out of the person first of- fering to buy, but if, on account of the company's negligence, the plaintiff was prevented from realizing it out of some other offering to buy at the same time for the same price, he may recover. Thus, if the plaintiff had been offered the same price for a certain number of bales of cotton by another cotton buyer, at the same time the mes- sage was delivered to the company offering the acceptance of the sale to a former bidder, but is prevented from consummating the last on the account of the negligent delay of the message, he may recover on account of the second sale.^ If the expense in any instance in- curred in the second sale could have been avoided, it cannot be re- covered,*^ as only necessary expenses can be recovered, § 547. Loss must be actual and substantial. We are again reminded of the recognized rule in the noted English case,^ when we come to consider the nature of the loss sustained in cases about which we are discussing in this chapter. That is that a loss sustained in a sale by reason of the negligence of a telegraph company in transmitting a message, respecting such sale, must be ac- tual and substantial in order to be recovered. ^N'ot only is this fact sufficient, but a loss must be proven by competent evidence, because, *Manville v. West. U. Tel. Co.. 37 "Postal Tel. Co. v. Ehett, 33 So. Icwa 214, 18 Am. Rep. 8. (Miss.) 412; 35 Id. 829. » West. U. Tel. Co. v. Eubanks, 100 ' See note 2. Ky. 591, 66 Am. St. Rep. 361. »Hadley v. Baxcndale, 9 Exch. 341. 524 TELEGRAPH AND TELEPHONE COMPANIES. [§ 547 while it may be presumed in certain cases that a telegraph company has been guilty of negligence, a loss will never be presumed by the mere fact of negligence on the part of the company.^ Thus, if the quantity of the goods to be sold is uncertain, or depends upon other contingencies, there can be no recovery of profits ; ^^ or, if there is no evidence that the goods could or would have been shipped to him, if the message had been promptly sent and delivered, there can be no recovery. ^^ The profits, in order to be recovered, must not be such as are classed with those which are purely speculative or conjectural ; and more especially is this true when they relate to gambling tran- sactions, since in no breach of a contract can any damages be recov- ered which are speculative or such as depend on the happening of some event which may never come to pass. They must be such as most reasonably would have been realized had the message been promptly transmitted and delivered, and not such as depended upon the hazards or chances of business. ^^ Thus, if the profits to be real- ized depend on another sale which may or may not be made, or on the vendee's acceptance, or on another's judgment, or when the profits are conjectural or speculative, they cannot be recovered. § 548. Orders for goods not delivered — in general. !N'ot only can there be a recovery of all losses sustained in a sale by reason of the negligence of the company in failing to properly trans- mit a message pertaining thereto, but all gains in the purchase of goods, which may have been prevented for the same reason, may be equally recoverable. As was said, many sales are consummated by means of telegraphic communication, and there cannot, of course, be •Pennington v. West. U. Tel. Co., 67 S. 444; Cohn v. West. U. Tel. Co., 46 Iowa 631, 56 Am. Rep. 387; Mickel- Fed. 40, affirmed (C. C. A.), 48 Fed. wait V. West. U. Tel. Co., 113 Iowa 810; Beaupre v. Pac, etc., Tel. Co., 21 177. Compare Alexander v. West. U. Minn. 155; lieynolds v. West. U. Tel. Tel. Co., 67 Miss. 386, 7 So. 280. Co., 81 Mo. App. 223; Kiley v. West. "Kingdom v. Montreal Tel. Co., 18 U. Tel. Co., 39 Hun (N. Y.) 158; N. C. A. B. 60. Cannon v. West. U. Tel. Co., 100 X. "Meggett V. West. U. Tel. Co., 69 Car. 300, 6 Am. St. Rep. 590; Reliance Miss. 198, 13 So. 815; Cahn v. West. Lumber Co. v. West. U. Tel. Co., 58 U. Tel. Co., 46 Fed. 40. Tex. 395, 44 Am. Rep. 620. "West. U. Tel. Co. v. Hall, 124 U. § 540] MEASURE OF DAMAGES. 525 a sale witlioiit a purclia.-c. While in a sale of goods liuili parties, as a general rule, are equally benefited, one parts with his goods with- out injuring his trade and receives in lieu thereof their money's worth, while the purchasing party could hardly carry on his business without the particular goods. So, they are both about equally bene- fited, so long as the price of the commodities do not change; and it is this fact — the fluctuating prices — whicli causes the one to gain and the other to lose. In other words, if the owner of the goods is pre- vented, by any cause, from selling on one day, and the price of the goods goes up the next, when he does sell, there is a gain on his part, but a loss on the part of the purchaser. So, if there is an order made by means of a telegram but the same is, through the company's negligence, not sent or is delayed in delivery an unusually long time, during which the price of goods goes up, the purchaser w^ould most certainly be damaged. In other words, he would have gained in the purchase of the goods had it not been for the negligence of the com- pany; but the question in this instance is. By what method or means can the amount of damages be ascertained ? § 549. Same continued — measure of damages. The measure of damages in cases where the purchaser of goods or property fails to obtain them at the price he otherwise would have done had the message been properly and promptly delivered to the vendor, is similar to that in ascertaining the amount to be recovered in those cases where a loss has been sustained by the failure of a sale l)eing consummated, except it is, in fonn, reversed. To be more ex- plicit, the measure of damages to be recovered for a loss sustained by the failure of the company to promptly transmit and deliver a mes- sage, which contains an order for goods, is the difference between the price of the goods at the time and place the message should have been delivered, and the price which was paid for the same goods, at the same place, by another order, presented within a reasonable time after it has been learnd, tlirough due diligence, that the first was not delivered. ^^ The snme ritli' will apply if the order was delayed in "West. U. Tel. Co. v. Way, 83 Ala. West. U. Tel. Co. v. Harris. 19 111. 542, 4 So. 844; West. U. Tel. Co. v. App. 347; Squire v. West. U. Tel. Co.. Graham, 1 Colo. 2.30. 9 Am. Rep. 13f,: 98 Mass. 232, 93 Am. Dec. 157; Dodd 526 TELEGKAPH AND TELEPHONE COMPANIES. [<^ 549 the deliverA' an unreasonable time.^"* That is, the measure of dam- ages would be the difference between the price of goods at the time the order should have been delivered by reasonable diligence on the part of the company, and the price of the same goods at the time the order was delivered. It must be understood, however, that if the delay w'as the result of some uncontrollable power, such as atmos- pheric hindrances or the act of the ]3ublic enemy, and not that of the company's negligence, it would not be liable for these losses. It is, nevertheless, the presumj)tion that the negligence of the company was the cause of the loss, and the burden rests upon the latter to overcome this presumption. It has been attempted to be shown that not only should the difference in these two prices be recovered, but, in addition to this, the profits which would have been probably real- ized in a resale of the goods should also be recovered. It is gen- erally held, however, that this loss is entirely too remote and specula- tive;^^ but if there has been a resale of the goods effected or agreed upon, Avhereby a profit would have been realized then this also can be recorded, as this is not depending upon any unreason- able conditions. -^^ In connection with this statement, it has been held that if the order contained both an order to buy and sell, the losses which would have been sustained on the purchase order must be de- duced from the profits he w^ould have made on the sale order, in de- termining the measure of damages. So, the latter rule applies where Grocery Co. v. Tel. Cable Co., 112 Ga. '= West. U. Tel. Co. v. Fellner, 5S 685, .37 S. E. 981; Turner v. Hawkeye, Ark. 29, 41 Am. St. Rep. 81; West, etc., Tel. Co., 41 Iowa 458, 20 Am. U. Tel. Co. v. Graham, 1 Colo. 230, 9 Kep. 605; True v. International Tel. Am. St. Rep. 136; Squire v. West. U. Co., 60 Me. 9, 11 Am. Rep. 156;Mowry Tel. Co., 98 Mass. 232, 93 Am. Dec. V. West. U. Tel. Co., 51 Hun (N. Y.) 157; Hibbard v. West. U. Tel. Co., 33 126; United States Tel. Co. v. Wenger, Wis. 558, 14 Am. Rep. 775; West. U. 55 Pa. St. 262, 93 Am. Dec. 751 ; Gulf, Tel. Co. v. Hall, 124 U. S. 444. etc., R. Co. V. Loonie, 82 Tex. 323, 27 "West. U. Tel. Co. v. Brnwn, 84 Am. St. Rep. 891; Carver v. West. U. Tex. 54, 19 S. W. 336; Walden v. Tel. Co., 31 S. W. (Tex.) 432. West. U. Tel. Co., 105 Ga. 275, 31 S. "West. U. Tel. Co. V. Carver, 15 Tex. E. 172; West. U. Tel. Co. v. Landis. Civ. App. 547; Pearsall v. West. U. 12 Atl. (Pa.) 467; Postal Tel. Co. v. Tel. Co., 124 N. Y. 256, 21 Am. St. Rliett, 33 So. (Miss.) 412, 35 So. 829: Rep. 662, affirming 44 Hun (N. Y.) West. U. Tel. Co. v. J. A. Kemp Gro- 532. cer Co., 28 S. W. 905; West. U. Tel. Co. V. Thomas, 1 Tex. Civ. App. 105. <^ 550] MEASURE OF DAMAGES. 527 the party on whom the order is made does both the buying and sell- ing by the authority given in the message, and not where the sender, as in the first rule stated above, accomplishes the resale. To recover in any instance, the plaintiff must prove that the addressee of the delayed or unsent message, containing the order, would have filled it, since if there was a doubt of this fact which had not been overcome by evidence, he could only recover nominal damages.'' All neces- sary expenses incurred in the transaction can be recovered in these cases the same as where a sale was prevented from being made by the negligence of the company. § 550. Order for goods erroneously transmitted — purchaser's duty. The preceding paragraph referred to the measure of damages for losses sustained by the company's negligence in not sending, or de- laying a message sent, containing an order for goods : so we shall, in this section, speak of the losses sustained by reason of the com- pany erroneously transmitting the order contained in the message, and the measure of damages to be recovered therefor. It is as much the duty of these companies to transmit a message accurately and in the exact words in which it is prepared by the sender, as it is to promptly transmit and deliver the same. While it may require more exertion and a greater degree of care on the part of the companv to transmit a message than it does in the promptness of sending or de- livery, yet the duty imposed upon it is the same in either instance. In other words, it requires a complete performance of both of these before its full and entire duty has been complied with, since it would be a useless matter on the part of the sender to require a proper dis- charge of one of these duties without imposing upon the company the obligation of performing the other. Very often, orders for goods, sent by means of telegrams, are erroneously transmitted, and when received by the addressee they show on their face items which call for a greater or less quantity than ordered by the sender. When the latter is injured thereby, the question i?. What loss has he suffered, "Meggett V. West. U. Tel. Co., 69 Miss. 198, 13 So. 815; West. U. Tel. Co. V. Burns. 70 S. W. (Tux.) 784. 528 ■iKLKtiKAPH a:sd telephone companies. [§ 550 and what is the measure of damages to be used in recovering such loss ? The general rule is, that where a message is erroneously trans- mitted, whereby an excess of goods has been ordered, the measure of damages is the difference between the market value of the excess, at the place of shipment, and that at the place to Avhich they were shipped. ^^ Thus, if an order is for 5,000 sacks of salt, but the order as received calls for 5,000 casks, the amount to be recovered, when the salt has depreciated in value at the place to which it is shipped, is the difference between the market value of the excessive quantity of salt at the -place of purchase and that at the former place, together with the expense of transporting the excessive amount. ^^ If the goods are perishable and become of no value, the measure of damages would be the value of the excess of goods at the place of shipment, together with the expense in transportation.^*^ While the purchaser should exercise reasonable diligence to make the loss as light as possi- ble, it seems that it is not his duty to transport them to a more favor- able place for sale than that at which they happen to be ; ^^ nor is it his duty to reship them to the place where they were purchased.^" But if he should decline to accept the excess of goods and they ar(i shipped back to the vendor, he may recover the expense incurred in the transportation both ways and the depreciated value of the goods, if such has been the case.-^ If the message eiToneously calls for a less amount of goods than was ordered, the measure of damages will be the same as in those cases where the company negligently failed to transmit the order, or where it was unreasonably delayed in de- livery. § 551. Same continued — goods shipped to wrong place. Errors of message, in not correctly transmitting the amount as or- dered, is not necessarily the only manner in which loss may occur, "•Leonard v. Xew York, etc., Tel. '" Elsey v. Postal Tel. Cable Co., 15 Co., 41 N. Y. 544, 1 Am. Rep. 446; Daly (N. Y.) 58. New York, etc., Printing Tel. Co., v. -' Leonard v. New York, etc., Tel. Dryburg, .35 Pa. St. 298, 78 Am. Dec. Co., 41 N. Y. 544, 1 Am. Rep. 446. 3.38; Washington, etc., Tel. Co. v. IIol)- --West. U. Tel. Co. v. Reid, 83 Ga. son, 15 Gratt (Va.) 122. 401; West. U. Tel. Co. v. Stevens, 16 "Leonard v. New York, etc., Tel. S. W. (Tex.) 1095. Co., 41 N. Y. 544, 1 Am. Rep. 446. -"* Bowen v. Lake Erie Tel. Co., 1 Am. L. Reg. (Ohio) 685. <§ 552] MEASURE OF DAMAGES. 529 but a loss may be sustained by the message misstating the place to which such goods are to be shipped. The measure of damages, in such cases, is the difference between the price of the goods which could have been obtained at the place to which they would have been shipped, had it not been for the error made in the telegram, and the market value or best obtainable price at the place to which they were actually sent.-'* He should also be allowed to recover any necessary extra expenses incurred in the way of accomplishing a sale at the latter place. And if the transportation charges to this place were greater than those to the place they were ordered to be sent, the dif- ference between the t^vo should be recovered; but if, on the other hand, they were less, then this difference should be deducted from the total amount sustained in the loss. It will be seen by this that the purpose of the law, where the company only negligently discharged its duty, is to only compensate the injured party for his loss; where the act was maliciously done to injure his trade or business, the rule is different. § 552. Same continued — stock, bonds, etc. We have been, heretofore, discussing the means of ascertaining the amount of recoverable damages sustained in losses caused by tele- graph companies erroneously transmitting orders for goods. Where the order is not for commodities, but for stocks, bonds and other like securities, the measure of damages is different, yet the principle on which they arc founded is the same. The cause of this is that the nature of the property and the uses to which it may be put, are dif- ferent. If an order for stocks, bonds or other like securities has been erroneously transmitted, the measure of damages is the loss, if any, sustained by the purchaser in consequence of the error in transmis- sion.-^ In other words, if the order is changed so as to call for a kind of stock other than that ordered, the injured party may recover the difference in the price of stock it was desired to purchase, at the time the order was made, and the price to which it had advanced ==^West. U. Tel. Co. v. Reid, 83 Ga. "West. U. Tel. Co. v. Dubois, 128 401; We.st. U. Tel. Co. v. Stevens, 16 111. 248, 21 N. E. 4, 15 Am. St. Rep. S. W. (Tex.) 1095. 109. T. & T.— 34 530 TELEGRAPH AXD TELEPHONE COMPANIES. ["^ 552 at tlie time the error Avas made, also the amount of the loss on the other stock,-^ Where there is a profit which would have been larger had the message been correctly transmitted, the decrease in the profits realized may be recovered. Thus, where an order for 1,000 shares of certain stock was changed in the transmission so as to read 100 shares, and before the error was discovered the stock liad ad- vanced, it was held that the plaintiff could recover the amount of the advance in the price of 900 shares up to the time he became aware of the error, but not for advances occurring thereafter.^" § 553. Messages directing agent to sell or purchase. Where a person directs or orders his agent, by means of a tele- gram, to sell certain property, but on account of an inexcusable delay in the delivery of the message the person loses by a decline in the price, of the property, the measure of damages is the difference be- tween the price at which the same was sold and that which he would have received, had it not been for the delay.^^ In such cases, how- ever, the injured party must exercise reasonable diligence to make the loss as light as possible, which may be done by the sending of another order for the sale as soon as possible after he learns of the delay.^^ One difficulty which arises under cases of this kind is, whether the property ordered to be sold was ever in the actual pos- session of the sender or the injured party. Many transactions for the sale or purchase of property is carried on under what is known as "future" sales or purchases ; and where the contract of sale made by telegram is for the sale or purchase of "'futures," loss sustained by a message in respect to same, being either negligently transmitted or delayed in delivery, cannot be recovered because the law decrees =* Eittenhouse v. Independent Line U. Tel. Co., 115 Ind. 191; West. U. of Tel., 44 N. Y. 263, 4 Am. Rep. 673. Tel. Co. v. Littlejolin, 72 Miss. 1025, "Marr v. West. U. Tel. Co., 85 Tenn. IS So. 418; West. U. Tel. Co. v. Ste- 529. vens, 16 S. W. (Tex.) 1095. ^ Dougherty v. American U. Tel. -'" Dougherty v. American U. Tel. Co., 75 Ala. 168, 51 Am. Rep. 435, 18 Co., 75 Ala. 168, 51 Am. Rep. 435, 18 So. 419; Hoeker v. West. U. Tel. Co., 8o. 419. 34 So. (Fla.) 901; Hadley v. West. § 554] MEASUKK UF DAMAGES. 531 .such contracts illegal. Before a legal sale can Ixi made there must be in one j^arty to the contract possession of the thing to be sold, and to complete same the party must be able to deliver the same. There cannot be a sale of something of which the intended seller has not possession, mid of course, if he cannot deliver that which he did not either sell or have to sell, there cannot be a sale. Thus, where it appears that the plaintiff's agent had neither money nor stock in his hands belonging to the former, and no sale or purchase was made, although the agent testified that he would have loaned plaintiff the money if the message had been received in time, and although the agent of the company was familiar with the nature of such transac- tions, the damages sustained by a decline in the price of the stock during the delay of the message are too remote and speculative.^*^ If possession is once had by the party selling purchases and sales of stock, it matters not how rapidly and often made, if delivery is con- templated, is not dealing in ''futures," within the prohibition of the statutes.^ 1 § 554. Same continued — order to close option to purchase. Where a person has an option to inirchase certain property, and a message, which is delivered to a company, containing an order to his agent to close such o])tion is delayed through the negligence of the company until aftci- the expiration of the time within which the purchase was to have been made, the measure of damages, where there is a loss, is the difference l3etween the price fixed by the option and the market price at the same place on that day.^- If, however, the market is less than that fixed in th(> option, and this is greater than the amount forfeited l)y the failure in not closing the option, there can be no recovery, as there is no loss. In order to hold the company liable, in either instance, the message must have been deliv- ered to the company within a reasonable time before the closing of the option, to have given ample time for its delivery to the agent, and to have accomplished its ])urpose. ^» Cohen v. West. U. Tel. Co. (C. C. ^^ Brewster v. West. U. Tel. Co., 65 A.), 48 Fed. 810, affirming 46 Fed. 40. Ark. 537, 47 S. W. 560; West. U. ^^ West. U. Tel. Co. v. IJttlejohn. 72 Tel. Co. v. Bell, 24 Tex. Civ. App. 572. Miss. 1025, 18 So. 413. .59 S. W. 918. 532 TELKGRAPII AND TELEPHONE COMPxS-NIES. [<§, 555 § 555. Announcement of prices or state of market. It is the general rule, as stated elsewhere, that where the owner of certain property makes an offer, in response to the announcement of the market price by means of a telegram, to sell at a certain price, and the message has been changed in its transmission so as to make the price less than that offered, the sender is bound to the receiver, who purchases the property, for the price as shown in the message received. The owner of the property may, however, where he relies on the announcement of the price or the state of market, as received from his agent, hold the company liable for the loss he has sustained by reason of the misquoted prices. In other words, if he receives a message from his agent stating the price at which the property can be sold, but the price as delivered to the company is really less than that quoted in the received message, and he sells on the strength of the latter price, believing it to be the state of the market, he may re- cover for the loss ; and the measure of damages is the difference be- tween the price the property actually sold for and that which he though he was getting for it, or, as stated in another way, the amount of his actual loss caused bj- the decrease in the price he obtained.^^ It is held in these cases that the announcement must have been made in contemplation of a trade, and by some one acting with authority to make such announcement."^ If the party to whom the announce- ment is made should be the purchaser, the measure of damages would be the increase in the price he was obliged to pay in consequence of the error. '^^ § 556. Contemplating shipping — delay in message — loss. There are so very many cases arising from the negligence of tele- graph companies in delaying the delivery of a message that it is '^West. U. Tel. Co. v. Crawford, 110 Co. v. Riehman, 8 Atl. 171; Pepper v. Ala. 460, 20 So. Ill; West. U. Tel. West. U. Tel. Co., 87 Tenn. 554, 11 S. Co, V. Flint River Lumber Co., 114 W. 783, 4 L. R. A. (560, 10 Am. St. Ga. 576, 40 S. E. 815, 88 Am. St. Rep. Rep. 699. 36; Postal Tel. Cable Co. v. Schaefer, =^ Frazer v. West. U. Tel. Co., 84 62 S. W. 1119, 23 Ky. L. Rep. 344; Ala. 497, 4 So. 831. Reed v. West. U. Tel. Co., 135 Mo. '^'West. U. Tel. Co. v. Dubois, 128 6G1, 37 S. W. 904, 58 Am. St. Rep. III. 248, 15 Am. St. Rep. 109, 21 N. 609, 34 L. R. A. 492; West. U. Tel. E. 4. <^ 55G] MK.VSURE OF DA>rAGES. r»33 •lifficult to enmncnito tlieni all and to give the measure of daiiiag<'S in each case. He who contemplates bringing suit should ascertain from the cases already cited the measure of damages to be recovered in his particular case, since the principle in all is the same, but only differently applied. Thus, if a party who contemplates making a shipment of live stock to a certain place on the announcement of tlie price at that place, but in consequence of a delay in the delivery or non-delivery of the price he ships to another less advantageous ])oint, the measure of damages would be similar to all those cases heretofore discussed. In these particular cases it has been held that the measure of damages would l)e the difference in price at the place he actually shipped and that to which he would have shipped had the message been delivered in time, together with the difference, if any, betAveen the transportation to the two places.^" If, on the other hand, the message is one advising the owner of the stock not to ship and, through the delay in the message, he does ship, thereby encountering an unfavoral)le market, the measure of damages is the difference be- tween the price of the stock at the place from which they were shipped and the price at the place to which they were shipped, together with expenses in transportation and that accruing in the sale.^'^ In all cases where the owmer suffers a loss by the negligence of these com- panies, he must exercise reasonable diligence to reduce his loss as much as possible. Thus, in the last rule given above, if the owner of the stock cannot sell at the place he has shipped, it his duty, if practicable, to ship to the nearest good market in order to reduce his loss.^^ He need only exercise reasonable diligence and effort, and is not under obligation to seriously incommode himself or cause injurv to his other liusinoss to make such reduction. If the message has never l)eeii delivevcil. and the addressee, under the circumstances, believes that tliere is no eliangc in the niai'kci and Imys accordingly ^Wost. r. Tel. ('(1. V. Collins, 45 .")(i K:m. 7.!7. 44 P:tc. 08!i. See also Kan. 88, 10 L. R. A. 51.'), 25 Pac. 187; West. 1'. Tel. Co. v. Reid, 83 Gix. 401. West. U. Tel. Co. v. Stevens. 16 S. W. » West. U. Tel. Co. v. Woods, 56 1095; Turner v. llawkeye Tel. Co.. 41 Kan. 737. 44 Pac. 089. Compare Leon- Tcwa 458. 20 Am. Rep. 605. ard v. New York. etc.. Tel. Co.. 41 N. "West. r. Ttl. Co. V. Linney. 28 S. V. 544. 1 Am. Rep. 44(i. W. 234: West. l". Tel. Co. v. Woods, 534 TELEGRAPH AND TELEPHONE COMPANIES. [§ 556 at the last rates coininiiiiieated to hiln, he may recover the difference between the excessive price he pays for the property and the price he would have paid had the message been delivered in time.^^ But if he should get the same information the delayed message would have given, from other sources and before ho buys, he cannot recover anything.'*'* »» Garrett v. West. U. Tel. Co., 92 ^"Reynolds v. West. U. Tel. Co., 87 Iowa 449, 58 N. W. 1064, 60 N. W. Mo. App. 223. 644. CHAPTER XXIII. MEASURE OF DAMAGES— CONTINUED— LOSS OF EMPLOYMENT, ETC. § 557. In general. 558. Loss of situation or employment. 559. Same continued — actual damages. 560. Same continued — circumstances tending to reduce loss. 561. Loss of professional fees. 562. Same continued — losses of otherwise professional nature. 563. Same continued — such as not recoverable. 564. Losses which might have been prevented. 565. Same continued — must show same would have been pre- vented. 566. Failing debtor — messages from creditors regarding same. 567. Failure to transmit money. § 557. In general. The failure on the part of a telegraph company to properly dis- charge its duty to^vards the public, subjects it to as many and almost the same kind of actions as may be maintained against individuals for their wrongful acts. In fact, they are nothing more than persons in law, so considered by all the courts, and, with certain peculiar ex- ceptions, their duties and liabilities tosvard the public are the same. One of the inalienable rights of every citizen is to own property and to make and enter into contracts in respect thereto. Any interfer- ence by another, except by due process of law, whereby he is pre- vented from exercising his authority over such, will subject the wrongdoer to damages. These companies may also o^^^l all property necessary for them to carry on and ]-)erform those objects for which they were incorporated. They may make and perform contracts, both with other corporations, and with individuals with respect to such projX'rty, so far as it may be necessary to accomplish their cor- porate objects, and any interference in these contractual rights may bo remedied by proper actions. We propose to discuss in this chap- ter, the interference with contracts made or in contemplation of be- ing made by individuals, or such as may have been prevented from being made by the negligence of telegraph companies. And first, we (535) 536 TELEGRAPH AND TELEPHONE COMPANIES. [§ 557 shall speak of the loss of a situation or employment, which is the result of the company's negligence in delaying a message. § 558. Loss of situation or employment. When a telegraph company, through its negligence, delays a mes- sage resulting in a loss of a situation or employment, it is not such an interference with the making of a contract as is meant when some third person intentionally interferes with the contracting parties in the making of a contract, and for which an action in tort may be maintained. In the latter cases, the gist of the action is the wrongful or malicious intent on the part of the wrongdoer; in the former it is not the intent which the company may have that makes out the case, but it is a failure to discharge its duties toward the public and the contracting parties. It is true that this negligence of the com- pany may become so gross as to place them under the same class of cases — that is, a malicious interference. We shall not speak here of the wrongful or malicious intent which may have been entertained by the company when such negligence is perpetrated, but only of its negligence in the delay of the message and the results thereof. When a contract of employment or for a situation has been lost by the de- lay of a message, the injured party is surely entitled to damages; but the question, difficult of comprehension is, What is the measure of damages in such cases ? § 55&. Same continued — actual damages. In cases where the plaintiff loses an employment in consequence of the company's negligent delay in delivering a message, the amount of damages to be recovered should be such as he has actually sus- tained.^ It is not an easy matter to always ascertain what are the actual damages. In viewing this subject, the circumstances involved must be considered; the character of the employment; the ability of the plaintiff to perform such work; and the duration of the time he is to be engaged are matters to be considered.- And he should 'West. U. Tel. Co. v. Valentino, 18 ^ West. U. Tel. Co. v. Hines 96 Ga. 111. App. 57; West. U. Tel. Co. v. Mc- 688, 23 S. E. 845, 51 Am. St. Rep. Kibben, 114 Ind. 511: McGregor v. 159; We.st. U. Tel. Co. v. Feuton, 52 West. U. Tel. Co., 85 Mo. App. 308. Ind. 1 ; Kemp v. West. U. Tel. Co., ^ 559] MEASURE OF DAMAGES. 537 prove the damages he has actually sustained by the delay. Thus, if his employment is for a certain specified time, during which he is to obtain a certain salai-y, the loss of this is the amount to be recov- ered ; ^ unless there are circumstances which would reduce this amount. In other words, if he is employed for one month at a sal- ary of $100, and his board for that time, but is prevented from mak- ing this through the negligence of the company, he may recover this amount. It is not only of a situation or an employment where he may have a right to recover; but if he has been prevented fro^m ac- cepting a contract to build a certain structure, or any other similar purpose, he may recover the actual loss sustained thereby.^ In these latter cases, it is more difficulty to ascertain the exact damage sus- tained. It is the general rule, that the amount to be recovered is the net profit he would have made by performing the contract had he not been interfered with by the acts of the company. It must be un- derstood that the gist of the action, in such cases, is not the in- terference with the contract made between the sender and the addressee of the message by the company's negligence, but it is the company's failure to carry out its contract made with one of these parties in respect to such contract; that is, to act as agent in bring- ing the minds of these two parties together with reference to the contract to be made by them as it contracts to do in accepting com- pensation for the deliverv- of the message. 2S Neb. 661, 44 N. W. 1064, 26 Am. you, if you can come at once." Plain- St. Rep. 363, 30 Am. St. Rep. 607; tiffs answered, "Will ship machinery Wolfskehl V. West. U. Tel. Co., 46 at once." This latter message was not Hun (N. Y.) 542. See also Baldwin delivered and the parties for whom the V. West. U. etc., Tel. Co., 93 Ga. 692, threshing was to be done, not knowing' 21 S. E. 12, 44 Am. St. Rep. 194. Com- that the offer was accepted, employed pare Jacobs v. West. U. Tel. Co., 76 other contractors. It was held that Miss. 278, 24 So. 535. the company was liable, although there 'Mondon v. West. U. Tol. Co., 96 was no delay in getting the machinery Ga. 499, 23 S. E. 853. to V; that complainant, being able to *West. U. Tel. Co. v. Robinson, 29 show the amount of grain to be S. W. 71; West. U. Tel. Co. v. Bowen, thrashed and the rate of toll per bush- 84 Tex. 476. In this case, plaintiffs cl contracted for, the damages claimotl were threshers and their agent at X could not be considered contingent, wired them, "Have 30,000 bushels for uncertain, or speculative. 538 TELEGKAl'Il AM) TELEPHONE COMPANIES. [§ 560 § 560. Same continued — circumstances tending to reduce loss. 1l i& the general rule, where a i)ersoii is prevented from perfonn- ing- or cariying out a contract, and where he has not been guilty of any fault on his part, that he should exercise reasonable diligence to minimize the loss as much as possible ; this may be done by per- forming other similar contracts. Thus, where he has lost a situa- tion or employment, it is the duty of the plaintiff to seek other em- ployment, by means of which the loss w'ould naturally be reduced.^ But if he has a certain occupation or avocation, he need not seek em- ployment in other lines of business."' In other words, if he is a contractor, he need not endeavor to reduce the loss sustained by the acts of the company by engaging to farm or clerk, or any business out- side that of a contractor. It is not necessary, in any particular, that he should exercise every endeavor to obtain other similar employ- ment, but it is only his duty to exert reasonable diligence. If he has obtained other employment, the measure of damages for the loss sustained by a failure to perform the first is the difference between what he would have made had the message been delivered in time and the amount received in the latter employment. If, on the other hand, he has been unable to get other employment, he should recover all the los« actually sustained by a failure to perform caused by the delay of the message. Thas is, all that would have been made from the time the contract was made and the time it would have expired ; and he should not be allowed to recover such claim as might likely accrue after the filing of the suit.'^ § 561. Loss of professional fees. The same rule, whicli has just been discussed, applies to cases where a professional fee has been lost by a negligent delay in a mes- ' Moody V. Leverieh, 14 Abb. Pr. eniploynicnt. West. U. Tel. Co. v. ( U. S.) 154; Worth v. Edmonds, 52 The burden is on the company to show Barb. 42; Gillis v. Space, 63 Id. 182. that the plaintiff could obtain other 'Perry v. Dickerson, 7 Abb. N. C. Brown, 37 So. (Ala.) 493. It is a 471; Strause v. Miertief, G4 Ala. 308; question for the jury as to whether a Taylor v. Bradley, 4 Abb. App. Dec. contract had been made. Id. 377; s. c. 39 N. Y. 141; Tufts v. Ply- ^ Uline v. New York Cent., etc., R. mouth Gold M. Co., 14 Allen, 413; Co., 101 N. Y. 08, 54 Am. Rep. 661; Co.stigan v. Mohawk & H. R. R. Co., 2 \Vest. \\ 'Id. Co. v. McKibbon, 114 Denio (N. Y.) 609, 43 Am. Dec. 758. Ind. 511. <^ 561] MEASUKK (»F IJAMAGKS. 539 sao'c. Thus wlicrc ;i mc-saiic siiiiiiiinniiiii- a |)iiy.siciaii to visit a mem- Ikt of the family who is sick, or wIktc it is u request for an attor- ney to attend a case, and tlie message is negligently delayed whereby the fees for such services are lost, tiic actual damages sustained thereby should be recovered. It is \'ery often the case, that profes- sional men have been deprived of fees they otherwise would have ob- tained had it not been for the company's negligence; and the meas- ure of danniges, in such cases, is the amount of fees they would have received, less the amount of fees made while not fulfilling such en- iragement, and also the extra expenses which necessarily would have been incurred had the services been rendered.'^ Thus, in a case where a message was delayed summoning a physician to make a visit, it was shown that he would have made $500 had the message been delivered in time and the visit made. The court held that this amount was recoverable, less other fees made during the time he would have been gone. We think that railroad and other similar ex- penses incurred in making the trip, should also be deducted from the amount of fees which would have been made.^ In any of these cases, the company must have had some information of the charac- ter and purpose of the message, in order to have been liable. In these, as in all other cases heretofore discussed, all the damages may be recovered which entered into the contemplation of the parties' minds, at the time the contract of sending was inade, as would be the natural and probable results of a breach of such contract; and. unless the company should have had some information of the pur- pose of the message, such contemplation could not have been enter- tained by it.i*^ *\Vest. r. Tel. Co. v. McLaurin.' 70 party at W". tclofiraphed to his attor- Miss. 2G. 13 S(i. 3(1 (Attorney's fee) ; iiey to nifct liini there to arrange an Fairley v. West. U. Tel. Co.. 73 Miss. assignment. The attorney replied that Ci. 18 So. 796 (loss of fee to physi- he would come at onee, but this lat- cian). See also ilood v. West. U. Tel. ter message was not delivered, and Co.. 40 S. Car. 524; West. U. Tel. Co. the party secured a local attorney and V, Longwill, .') X. Mex. 308. 21 Pac. plaintiflF lost the expected fee. The 339_ only information the company had of "West. r. Tel. Co. v. l,0M.<:\\ill. ;"> N. the circumstances was from the raes- Mex. 308, 21 Pac. 330. sage which read, "Sent Eckford on ''West. U. Tel. Co. v. ( lifton. 68 first train. Am here. Answer." and a Miss. 307, 8 So. 74ti. In lUU vii-o. a njily to the ctlVct tluit E. would come 540 TELEGHAPII .VXD TELEPIIO.X K CU-MPAXIES. [§ 562 § 562. Same continued — losses of otherwise professional nature. While j)f(i|)k', carrviiig on a business of a special and particular na- ture, do not, strictly speaking, fall in the class of professional men, jet their business, being somewhat similar, the above rule may, how- ever be applied to them. Thus, where a person is acting in the capacity of a detective, and is trying to capture a criminal, for whose capture there is a reward, he may recover of the company an amount of dam- ages equal to the reward offered, when he has been prevented from making such capture by the company's negligence in delaying a mes- sage containing facts of his whereabouts.^^ Where a real estate agent has failed to make his commission in a sale of real estate by reason of the message being negligently delayed, the commission may be recovered.^- It was held in one case, that the fact of the non-delivery of a message in time to enable the party to whom it was sent to meet a train and comply with the directions of the sender, does not cause the former party to suffer any damage ; but simply to lose a mere opportunity or possibility to make some money, and the company therefore, is not liable to him in damages for such non-delivery.-'^ This opinion is contrary to the general rule under such cases. In this case, the telegram was a. request to an undertaker to meet the remains of a certain person at the depot and convey same to another place. As said by the court, in this case : "It is contended that if he had received the telegram, he would have made a considerable amount of money as profits from services rendered. He might have made it, or he might have not." In other words, it w^as claimed that the sender of the message might have "declined the services" on ar- rival with the remains, and for this reason the damages were too remote. With all due respect to this learned court, we do not agree with it in this holding. The fact of the sender's not accepting the at once. It was held that only noisi- ^' McPeek v. West. U. Tel. Co., 107 inal damages could be recovered. See Iowa 356, 70 Am. St. Rep. 205, 43 L. Melson v. West. U. Tel. Co., 72 Mo. L". A. 214, 78 N. W. 0.3. App. 111. Extrinsic evidence is admis- ''West. U. Tel. Co. v. Fatman, 7-' sible to show that the company had no- Ga. 285, 54 Am. Rep. 877; West. I". tice of the importance: McPeek v. Tel. Co. v. Cook, 54 Xeb. 109, 74 X. West. U. Tel. Co., 107 Iowa 356, 70 W. 395. Am. St. Rep. 205, 78 N. W. 63, 43 I.. '''Clay v. West. U. Tel. Co., 81 Ga. R. A. 214. 285, 12 Am. St. Rep. 316. § 564] MEASURE OF DAMAGES. 541 services of the addressee does not enter into the contemplation of the interested parties to the contract at the time it was made ; that is, it does not enter into the contemplation of the addressee's mind, for whose benefit the contract was made, that there would be an ac- ceptance or non-acceptance of his services ; neither was this enter- tained by the sender. That which does enter into liis contemplation — and presumed to have been entertained at the same time by the company — is the loss of charges for such services, in case there is a delay; and this may be recovered. § 563. Same continued — such as not recoverable. There may be- a number of instances, however, when the damages claimed may be too remote or speculative ; or, rather, such as would give them the same effect. Thus, if the employment is conjectural or contingent, so that the delivery of the message might or might not have secured the employment or services for the plaintiff, he can not recover.^^ So, it has been held that the faihu'e to secure a posi- tion, as deputy assessor, is not a ground for the recovery of more than nominal damages, where it appears that the deputy holds only at the pleasure of the officer appointing him.^^ If the plaintiff could not have rendered his assistance by reason of being employed in other services, he cannot recover on the first, although the message was negligently delayed;^'' or, if the services could not have been ren- dered on account of other circumstances, had it been delivered in due time, he cannot recover. Thus, if his services are required some distance from his home, which necessitates him to go by railroad, and no train leaves for that place so that he can reach this place in time for his services to be rendered, he cannot recover, if the message was delayed, when the same would have been the result had it not been delayed. § 564. Losses which might have been prevented. The statutes in many states have classed telegraph companies un- der the head of common carriers, and yet, irrespective of this fact, 'MValsor v. \\'ost. U. Tol. Co.. 114 '"Freeman v. West. U. Tel. Co.. 93 N. C. 440, 19 S. E. 366. (;a. 230, 18 S. R. 047. "Kenyon v. West. U. Tel. Co.. 100 Cal. 454, 35 Pac. 75. 542 TELEGKAPII AiSD TELEPHONE COMPANIES. [§ 56i tlieii" duties and obligations toward the public are somewhat simi- lar to the former. It is only the nature of their employment that makes them different. One engages itself to transmit news, and the other to transport property. The one has under its control prop- erty which is invisible, while the other is entrusted with visible and tangible property. For this reason it is more difficult for one to safely accomplish its duties than the other. It is for this that one is considered under the common law as being an insurer, while the other is acting in a quasi-insuring capacity, but with respect to their negligence they are equally liable. A common carrier engages to transport proj^erty in its tangible state from one place to another, and on a failure, through its negligence, so to do, it will be liable for all the natural and proximate results which could have been prevented. In other words, if a loss in the transportation of goods has been sus- tained, which could have been prevented by the injured party had the carrier i)roperly discharged its duty, it will be liable. The same rule will apply to telegraph companies. For instance, if a loss has been sustained by reason of a message being negligently sent or de- livered, and the same could have been prevented by the plaintiff, or injured party, had the company properly discharged its duty with respect to such message, it will be liable for all the natural and direct consequences arising from such failure of duty.^'^ Thus, where the company's negligence prevents plaintiff from stopping a sale of his property under foreclosure, he is not bound, in order to recover dam- ages, to show that he has been ejected from the property; the loss of his title is enough. But he must be able to show tliat, liad the message been duly delivered, he would have been able to command the money necessary to stop the sale.^^ § 565. Same continued — must show same would have been pre- vented. In order to recover under the above rule, it must be shown, in every case, that tbere has been a loss sustained by the company's negligence, "Bodkin v. West. U. To]. Co.. 31 GO S. C. 201, 38 S. E. 443; West. Fed. 134; West. U. Tel. Co. v. McCor- U. Tel. Co. v. Shumate, 2 Tex. Civ. miek, 27 So. (Miss.) 606; Wolfskehl App. 429, 21 S. W. 109. V. West. U. Tel. Co., 46 Hun (N. Y.) 'MVest. U. Tel. Co. v. Hearul, 7 Tex 542; Wallingford v. West. U. Tel. Co., Civ. App. 67. <^ 506] MEASURE OF DAMAGES. 543 and that the same (-(nild ;iii 579 § 579. Same continued — suffering must be real. Another iiieaiis by Avbieh the flow of this "intolerable litigation" has been attempted to be obstructed is, by the rule laid down in some of those cases, and closely adhered to, that in order for damages to be recovered in snch cases, the mental suffering must be real and not such as may be the result of a too sensitive or excitable mental constitution or a distorted imagination.-^ ''If gTief or sorrow can be produced by things unreal, mere pigments of the brain, or a tort, an individual of a somber, gloomy imagination would often be entitled to large damages on account of mental suffering, while others of a buoyant fancy, for the same breach of duty, would not be entitled to any thing ; and damages, instead of being measured by the rule of law as applied to the rule of facts Avould largely depend upon the fertility of the imagination of the suitor. "^^ Thus, mere anxiety re- sulting from plaintiff's inability to learn what he seeks to know of his relatives is no ground for recovery of damages.^ ^ ISTeither is a suit maintainable on the ground of mere anger or resentment in failing to deliver a message in regard to a death f~ nor the worry of the loss over a position by a student, although the worry seriously in- terfered with his studies.^^ § 580. Same continued — must be the result of the cause of com- plaint. Juries are so easily misled through prejudice, sympathy and ig- norance from the main cause of the action, in such cases, to sufferings of the mind, resulting from other causes, that it should always be the duty of the courts, on proper request, to instruct them that a recov- ery could only be had for the injuries resulting directly and proxi- mately from the cause of complaint, and that none other should be considered in their deliberation.^* As said heretofore,the plaintiff -""McAllen v. West. U. Tel. Co., 70 "West. U. Tel. Co. v. Bell, Gl S. W. lex. 243, 7 S. W. 715; Morrison v. (Tex.) 942. West. U. Tel. Co., 24 Tex Civ. App. ==> West. U. Tel. Co. v. Partlow, 30 347, 59 S. W. 1127. Tex. Civ. App. 599, 71 S. W. 584. ="McAllen v. West. U. Tel. Co., 70 =^ Beasley v. West. U. Tel. Co., 39 Tex. 243, 7 S. W. 715. Fed. 187; Rosser v. West. U. Tel. Co., ^>Akard v. West. U. Tel. Co., 44 S. 130 N. C. 251, 41 S. E. 378; Cash- W. (Tex.) 538. ion v. West. U. Tel. Co., 123 N. C. ^ 581] MEASURE OF DAMAGES, 557 is the only party who knows the extent of his suffering, and in at- tempting to show these to others he is liable to expose the injury arising from other kindred causes. His injuries may be the result of several causes; so, it Avould bo difficult for him to measure out and divide the whole so as to give the extent of suffering resulting from the cause of complaint. This fact was not lost sight of by Judge Watts, who rendered the decision in the So Relle case. In closing his opinion, he said : "It should be remarked that great caution ought to be observed in the trial of cases like this ; as it will be so easy and natural to confound the corroding grief occasioned by the loss of the parent or other relative with the disappointment and regret oc- casioned by the fault or neglect of the company, for it is only the lat- ter for which a recovery may be had; and the attention of the juric? might w-ell be called to that fact." ^^ § 581. Same continued — suffering must be of the plaintiff. There is no doubt but that the iniud may be as seriously injured as any part of the body ; in fact there is such a close union between th<; two that one can hardly suffer without the other being affected more or less. So, it is not that w-e intend to be understood in saying that the mind cannot be injured, for which damages may be recovered, but that the diflSculty of proving the injury is so great it should not — only in certain cases — be the only grounds for an action. There i.^ a marked resemblance between the sufferings of the mind, caused by injuries there io, and the sufferings of the body, and yet this can only be appreciated by the injured person, himself. If we could discern them both, the results with respect to us would be exactly the same ; but, while one can be seen or examined, and the extent of suffering thereby, to a proximate degree, measured, yet there is no way tha' 207. 31 S. E. 493. 124 N. C. 459, 45 U Tel. Co.. 14 Tex. Civ. App. 536, 3S L. R. A. 160, 32 S. E. 746; Wadsworth S. W. 64; West. U. Tel. Co. r. Shu V. West. U. Tel. Co., 86 Tenn. 695. 6 mato. 2 Tex. Civ. App. 429, 21 .S. W. Am. St. Rep. 864; So. Relle v. West. 109: West. U. Tel. Co. v. Warren, 3ti U. Tel. Co., 55 Tex. 308. 40 Am. Rep. S. W. 314; West. C. Tel. Co. v. Ste- R05; Gulf, etc., R. Co. v. Levy. 59 yens, 2 Tex. Civ. App. 129. 21 S. W. Tox. 543, 46 Am. Rep. 269; West. V. 148; West. U. Tel. Co. v. Edmondson. Tel. Co. V. Winpate. 6 Tex. Civ. App !)] Tex. 206, 60 Am. St. Rep. 873. 394; West. U. Tel. Co. v. Cooper, 71 ^o go Relle v. West. U. Tel. Co.. 5.1 Tex. 507, 9 S. W. 598, 1 L. R. A. 72b. Tex. 308, 40 Am. Rep. SOS. 10 Am. St. Rep. 772: Johnson v. West. 558 TELEGRAPH AND TELEPHONE COMPANIES. [§ 580 the injuries to the mind can be so ascertained or determined. It is generally held that if tliere is .an injury to the body, damages may bo recovered for mental suffering which is the direct result of the same cause that produced the bodily injury, but in no instance can the same damages be recovered in actions for physical pain resulting from a different cause than that of the latter, l^cither can the phy- sical sufferings of another be considered in a case brought exclusively by the plaintiff for his own bodily hurts, as he is the only person af- fected with respect to that action. It is generally held, therefore, in those cases where damages may be recovered for mental anguish alone tliat the suffering of the plaintiff's mind and not that of others, who may be affected thereby, can be considered by a jury. Thus, when the plaintiff's relatives endure suffering and distress of mind on ac- count of his absence, this fact cannot be considered in awarding him damages for his mental anguish. ^"^ § 582. Same continued — anguish from independent causes. A distinction has been drawn, as heretofore noted, in those states holding that mental distress alone was sufficient grounds for an ac- tion, between injuries to the mind caused by a delay or non-delivery of a message and that resulting from independent causes.^^ Thus, in an action on a delayed message sent by the mother to her daughter in regard to the serious illness of the latter's father, the company will not be liable to the mother in damages for her mental suffering and distress, caused by the want of the consoling presence of her daugh- ter at the burial, where she could and would have been present, but could not have been present at the death if the message had not been delayed.^* JSTeither is mental anguish and suspense caused by a tardy delivery of a message announcing the serious illness of plain- tiff's father, and which delayed her twenty-four hours in starting by ^Giilf, etc., Tel. Co. v. Kichardson. i>iondson, 91 Tex. 206, 66 Am. St. Rep. 79 Tex. 649, 15 S. W. 689; West. U. 873; West. U. Tel. Co. v. Bass, 28 Tel. Co. V. Lovett, 24 Tex. Civ. App. Tex. Civ. App. 418; West. U. Tel. Co. 84, 58 S. W. 204. v. Parks, 25 S. W. (Tex.) 813. "Sparkman v. West. U. Tol. Co., =»West. U. Tel. Co. v. Luck, 91 Tex. 130 N. C. 447. 41 S. E. 881; Mc- 178, 41 S. W. 469, 66 Am. St. Rep. Carthy v. West. U. Tel. Co., 56 S. W. 869. See also Rowell v. West. U. Tel. (Tex.) 568; West. U. Tel. Co. v. Ed- Co., 75 Tex. 26, 12 S. W. 534. "^ 583] MEASURE OF L»AAIA(JES. 5.jS> rail to see him, a gToniid to be considered, where the phiintiff could not have arrived at his home in time for the funeral had the message been delivered promptly.^^ In another case, a son telegraphed his father to send a carriage to meet him at a certain place and to wire him when the carriage Avould arrive. He waited several days for a reply to his message, and on account of failing to get one, he suffered great distress of mind. It was held, that this suffering could not be considered in an action to recover damages for mental worry caused by the message not being delivered.^*^ So, also, where plaintiff and his wife had received information of the dangerous illness of the latter's mother, and subsequently a message was sent informing them of her improved condition, but the company failed to deliver it. It was held that there could be recovery for the mental angiiish suffered by the plaintiff and his wife which a delivery of the mes- sage would have relieved.^ ^ § 583. Same continued — must have prevented the injury. As has been heretofore noted, damages cannot be recovered from a telegraph company for pecuniary loss in consequence of its negli- gent transmission or deliveiT of a message, when the same could not have been prevented had the message been properly delivered. The same rule applies to cases brought to recover damages for mental suffering. So, if the suffering to the mind could not have been pre- vented had the message been promptly delivered, the plaintiff cannot recover, although the company negligently delayed its delivery.'*- In ^»West. U. Tel. Co. v. Luck, 91 Tex. 824. See also West. U. Tel. Co. v. 178, 41 S. W. 469, 66 Am. St. Rep. Eskridge, 7 Ind. App. 208; West. U. S69. Tel. Co. v. Smith, 30 S. W. (Tex.) ^"McAllen v. West. U. Tel. Co., 70 937; West. U. Tel. Co. v. Drake, 14 Tex. 243, 7 S. W. 715. Tex. Civ. App. 601, 38 S. W. 632; "Rowell V. West. U. Tel. Co., 75 West. U. Tel. Co. v. Johnson, 16 Tex. Tex. 26, 12 S. W. 534. Civ. App. 546; West. U. Tel. Co. v. *^ Where the plaintiff is kept away \\aller, 47 S. W. (Tex.) 396; West, from the death bed of a relative; Cum- U Tel. Co. v. Norris, 25 Tex. Civ. App. berland Tel. Co. v. Brown, 104 Tenn. 43, 60 S. W. 982. Where plaintiff is 56, 50 L. R. .\. 277, 78 Am. St. Rep. kept away from the funeral of some 906; West. U. Tel. Co. v. Smith, 88 relative: West. U. Tel. Co. v. Stone, Tex. 9; West. U. Tel. Co. v. House- 27 S. W. (Tex.) 144; West. U. Tel. v/right, 5 Tex. Civ. App. 1. 23 S. W. Co. v. Linn, 87 Tex. 7. 26 S. W. 490; 560 TELEGKAPII AjN*D TELEPHOIsE compaxies. [§ 5S3 cases brought to recover damages for distress of mind, it is incum- bent upon the phiintiff to show that he not only could but would have prevented the injury complained of, if the message had been prompt- ly delivered to him. Thus, where the son brings suit against a com- pany to recover damages for mental anguish and suffering, resulting in his being kept away from the deathbed of his father, in conse- quence of a telegram being delayed announcing the latter's condition, he must show that he could and would have reached his father before his death had the message been promptly delivered.'*^ Whether or not he could and would have gone to his father had he received the message promptly, is a question for the jury, although he may have testified that he could and would have done so.'*'* § 584. Same continued — postponement of funeral services. It has been attempted to be shown in some cases in order to evade the above rule, that notwithstanding the fact that the desired object of the message could not have been complied with had it been prompt- ly delivered, yet had it been received in time, other arrangements could have been made by which the injury would have been prevent- ed. But this rule cannot be evaded by showing that if the message had been promptly delivered, the plaintiff would have arranged a postponement of the funeral until he could have gotten there.^^ The West. U. Tel. Co. v. Motley, 87 Tex. Civ. App. 176, 27 S. W. 760. See alsr) 38, 27 S. W. 52, reversing 27 S. W. Evans v. West. U. Tel. Co., 56 S. W. 51. It is also essential that the fail- G09. lire of the company to discharge its *'^ West. L'. Tel. Co. v. Stone. 27 S. duty promptly be the proximate cause W. (Tex.) 144; West. U. Tel. Co. v. of the distress and suffering for which I.inn, 87 Tex. 7, 26 S. W. 490, 47 Am. damages are sought: West. U. Tel. Co. St. Rep. 58; West. U. Tel. Co., v. Mot- V Andrews, 78 Tex. 305, 14 S. W. 641 ; ley, 87 Tex. 38, 27 S. W. 52, reversing West. U. Tel. Co. v. Hendrick. 26 Tex. 27 S. W. 51. Compare West. U. Tel. Civ. App. 366, 63 S. W. 341. Compare Co. v. Van Way, 54 S. W. (Tex.) 414: Phillips v. West. U. Tel. Co., 69 S. W. West. U. Tel. Co. v. Carter, 20 S. W. (Tex.) 997; West. U. Tel. Co. v. Coop- (Tex.) 834; West. U. Tel. Co., Par- er, 71 Tex. 507, 9 S. W. 598, 1 L. Pv. sons, 72 S. W. 800, 24 Ky. L. Rep. A. 728, 10 Am. St. Rep. 772. 2008. In these latter cases it was held " Cumberland Tel. Co. v. Brown, 104 that if it appeared to a certainty, that Tenn. 56, 55 S. W. 155, 78 Am. St. Rep. such postponement would have been 906, 50 L. R. A. 277. made, damages could be recovered. "West. U. Tel. Co. v. May, 8 Tex. ^ 58G] MEASURE OF DAMAGES. 561 conditions attached to such a state of affairs are too uncertain. Foi instance, the funeral might or might not have been postponed; or, the reply message might not have been received in time to arrange for such postponement. The rule that such injury could and would have been prevented had the message been ilclivorod in time, cannot l)e evaded by such uncertain propositions. § 585. Same continued — failure to transmit money — no cause. It was stated in another place in this chapter, that where a tele- graph company contracts to transmit money, but fails to promptly do so, the measure of damages for such breach is the interest on the money from the time it ought to have been transmitted to the time it was sent, together with the price of the message. It follows, there- fore, that a failure to promptly deliver money is no ground upon which the addressee may recover damages for mental worry and ang- uish.-'« § 586. Evidence of mental suffering. The general rule of evidence is, that where the state of a person's mind, his sentiment or disposition at a certain time is the subject of inquiry, his statements and declarations at that period are admiss- ible,^^ So, the declarations of a testator may be received to show that his mind was under undue influence at the time of making the will ;^® and, so, as to the extent of a mental disease, the declarations of the person affected are admissible."*^ It has been held, from this general *' Robinson v. West. U. Tel. Co., 68 thereon. Compare International Ocean S. W. G5G, 24 Ky. L. Rep. 452; De Tel. Co. v. Saunclers. 32 Fla. 434. 14 Vocolor V. West. U. Tel. Co.. 10 Tex. So. 148. 21 L. II. A. 810. Civ. App. 229; Ricketts v. West. U. ^'Barthelniy v. People, 2 Hill 248; Tel. Co., 10 Tex. Civ. App. 226; but Hester v. Com. 85 Pa. St. 139; Wet- in West. U. Tel. Co. v. Wells. 39 So. more v. Mell. 10 Ohio St. 26. (Fla.) 838, it was held that, where <«IMilton v. Hunter, 13 Buch (Ky.) tlie company willfully refused to pay 163; Lueso v. Cannon. 13 Id. 601; Bat- to plaintifT money sent by the former ton v. Watson. 13 Ga. 63, 58 Am. Dec. thereby causing plaintifT and family to 504. travel twenty-four hours without food *" Rex v. Johnson. 3 Car. & K. 354; or funds, he might recover damages Howe v. Howe, 99 Mass. 88 : State v. for bodily pain and suffering and for Kring, 64 Mo. 591. mental pain and anguish attendant T. & T.— 36 562 TELEGRAPH AXD TELEPHONE COMPANIES. [<§> 586 rule, as a basis, that where the action is brought to recover damages for distress of mind or for mental anguish and suffering in conse- quence of a negligent transmission or delay in the deliverv' of a mes- sage, the natural condition of the mind, with respect to such suffer- ing, may be shown by evidence of his behavior and natural expres- sions and utterances at the time of such. Thus, if his expression of feelings is such as to indicate a distress of mind, or if his behavior shows that his feelings are greatly injured as a result of the message not accomplishing its purpose, there is no better way to show this to a jury than by such facts. If a person is injured physically, it is natural for him to show suffering, resulting therefrom, by his behav- ior, by natural expression of countenance or by utterances of pain ; the same rule is applicable when the mind is that part of the body which suffers, and the best way to show such pain, or suffering is by these facts.^^ § 587. Same continued — aggravation of suffering. There may be circumstances which would have a tendency to aggravate mental suffering and angTiish ; and when this is the case, the facts tending to show it should be adniitted. Thus, where the plaintiff was prevented from being present at the deathbed of his mother, by a delayed message announcing her serious illness, he may be allowed, in an action brought to recover damages for mental suf- fering in consequence of such delay, to show that he was her favorite son.^^ The great affection existing between the plaintiff and the per- son who died would naturally create a gi'eater injury to the mind of the former, if he was prevented from being present during the latter's last moments in this world, and any facte which tend to show this relationship should be brought before the jury. The court, in ren- dering an opinion on this point, said: "While juries in the absence of any evidence on the subject may act upon their own knowledge of ^"West. U. Tel. Co. v. Henderson, 89 Compare West. U. Tel. Co. v. McLoud, Ala. 510, 7 So. 419, 18 Am. St. Rep. 22 S. W. (Tex.) 988; West. U. Tel. 148; West. U. Tel. Co. v. Carter, 20 Co. v. Adams, 75 Tex. 535, 16 Am. S. W. (Tex.) 834; Mentyer v. West. St. Rep. 920. U. Tel. Co., 93 Iowa 752, 28 L. R. A. ^i ^yggt u Tel. Co. v. Lydon, 82 Tex. 72, 62 N. W. L 57 Am. St. Rep. 294. 3G4, 18 S. W. 701. § 588] MEASURE OF DAMAGES. 563 the affection existing between a mother and son, still the admission <»f evidence upon the subject may be proper, and we cannot say that ])roof of a special regard felt and shown by a mother for one of her children may not be properly considereeing at the burial by such delay, he may show as a result of such suffering that he became ill and was compelled to take his lied and incurred medical expenses.^^ This is merely a means of e recovered : yet it may be admitted to show that the intervening cause, and not the delay of the message, was the proximate cause of "Id. Tox. o80. 74 S. W. 751, 97 Am. St. " West. r. Tel. Co. v. Stiles. 89 Tex. Hep. 936. .{12. 34 S. \y. 438. Compare West. U. " Sim.Tnon v. West. U. Tel. Co.. 63 Tel. Co. V. Evans. 1 Tex. Civ. App. S. C. 425, 57 L. R. A. 607, 41 S. E. 297, 21 S. W. 260. 7(i3; West. U. Tel. Co. v. Sweetman. ^MVest. U. Tel. Co. v. Waller. W 10 Tex. Civ. App. 435. 564 TELEGRAPH AND TELEPHONE COMPAIs^IES. [<§> 588 the suffering. The mental suffering and anguish must be the natural and proximate result of the negligence of the company and such as was contemplated by the parties at the time the contract was made as would be the most natural and probable result of such breach. In such cases, there can be no recovery for ''physical suffering" resulting from plaintiff's being kept from his relative's funeral, in the absence of specific proof of such suffering as a result of the deprivation.^*^ § 589. Same continued — matters of defense — want of affection. TelegTaph companies, where actions are brought against them to recover damages for mental suffering, may use any defense which tends to show that the mind was not injured or impaired. The greatest among any defenses in this respect is that there was no af- fectionate feelings entertained by the plaintiff for the person about whom the message, which is delayed, concerns. It seems that the grief of a loss of one, or a failure to see such person in his last mom- ents, or to be present to tender the last respect to the dead,- affects more directly the mind than any other part of the body ; and, so, if there is no affectionate feelings for such person, the mind cannot be- come impaired or injured by being deprived of any of these pleas- ures. So, it has been held, that the company may show, as a defense in an action brought bv the father for damages for mental suffering-, in consequence of a delayed message announcing the serious illness of his daughter, that he had abandoned his family and was living apart from them.^''' We think that, where such damages are allowed, if there is any affectionate feelings entertained by the father for the daughter, he should on proof of such fact, be compensated for the in- jured feelings which were endured. In one case, the company at- teonpted to prove that the plaintiff, a grandmother of the child about whom the message concerned, had a number of grandchildren — among whom her affection was divided — but the court held that the evidence was irrelevent.^^ "West. U. Tel. Co. v. Thompson, IS ^s West. U. Tel. Co. v. Crocker. 1-35 Tex. Civ. App. 609, 4.5 S. W. 429. Ala. 492, .3.3 So. 45. 59 L. R. A. 398. ^''West. U. Tel. Co. v. Terrell, 10 Tex. Civ. App. GO, 30 S. W. 70. <§, 590] .MEASURE OF DAMAGES. 565 § 590. Relationship material. It was shown in another part of this work that in order to hold a telegraph company liable in damages for mental snffering, caused by a message announcing the dangerous illness, or the time set for the funeral services of a certain person, being delayed and thereby pre- venting the addressee from being present with said person before death, or at the burial, the company must have had some information of the fact that there was a close relationship between these two per- sons. It necessarily follows, therefore, that there must be a relation- ship existing between these two parties before damages for mental suffering can Ije recovered. Whenever a message announcing the ser- ious illness, death or time of funeral of a person related in consangui- nity to the addressee is delayed, mental anguish and suffering will be presumed, when, through the fault of the company, he is prevented from being present at the bedside or funeral of such relative; and it is not necessar)' for him to prove such injurv.^^ While we perhaps cannot detect with the eye any change or difference, it is a natural result that the whole tree is affected when it loses one of its branches. It is according to nature that such shall be the result. The same rule applies to man. If one of his limbs are lost, the whole body becomes more or less affected. It is a presumption and one not necessary to l>e proven. This illustration may be farfetched, but it is a fact, nevertheless, that, when one member of a family suffers, or of whom we are deprived, we suffer as a natural consequence; and when the relation is close, the fact does not have to be proven. It follows, there- fore, that if there is not a relationship, especially by blood, the pre- sumption of mental suffering cannot be maintained, but same must l)e shown. ^"^ It seems, however, that if there is an affectionate feel- ing existing between the parties, although they may not be related ="> West. r. Tel. Co. v. Coffin. 88 Tex. '^ West. U. Tel. Co. v. Ayres, 131 94, 30 S. W. 896; West. Tel. Co. v. Ala. 391; Robinson v. West. U. Tel Eandalls. 34 S. W. (Tex.) 447: West. Co., C8 S. W. 656, 24 Ky. L. Rep. 451 U. Tel. Co. V. Porter, 26 S. W. 866; See, also, West. U. Tel. Co. v. Steen West. U. Tel. Co. v. Mcleod. 22 S. W. beiffen, 107 Ky. 469, 54 S. W. 829 988; West. U. Tel. Co. v. Thompson, Morrow v. West. U. Tel. Co., 107 Ky 18 Tex. Civ. App. 609, 45 S. W. 429; 517, 54 S. W. 853; Davidson v. West. West. U. Tel. Co. v. Crocker, 135 Ala. U. Tel. Co., 54 S. W. 830. 492, 33 So. 45, 59 L. R. A. 398. 566 TELEGKAPH AXD TELEPHONE COMPANIES. [§ 590 by blood, proof may be admitted showing this fact, but it will never be presumed that mental suffering and anguish has been sustained. § 591. Nature of damages. As will be seen from a perusal of the preceding sections, actions brought to recover damages for mental suffering relate to messages announcing the serious illness, death or time of funeral services of some relative of the addressee, and are intended to bring him to the bedside or funeral of such person, or to comply with the information in other ways to his interest.*^ ^ The anxiety to be present on such oc- casion is greater than any that can ever befall a man, as during these short moments wa experience that which can never be witnessed again while on earth ; for this reason, cases of this nature most always come upon the ground of failure to deliver such messages in time. Cases, however, have been brought to recover damages for a failure to deliv- er other kinds of messages where they are of information, and not cal- culated or intended to affect the movement of the addressee.''^ Thus, where a father is prevented from stopping the marriage of his daugh- ter by a delay in delivering a message to that effect, he was allowed to recover damages for mental suffering resulting from an undesir- able marriage,*^^ although he could not recover for the mental suf- fering of his wife, unless it appeared to the company that he had a wife. § 592. Actions do not survive — limitation. Actions against telegra])h companies for damage? for anental suf- fering are for "an injury to the person," within the rule that such actions do not survive, and the right of the action dies with the per- son. ^^ His injuries are such as none other can suffer, or, if they suf- '"■ West. L'. Tel. Co. v. Mcllvoy, 107 '■" West. U. Tel. Co. v. Proctor. And Ky. 633. 55 S. W. 428; West. IT. Tel. as will be seen it has been applied to Co. V. Halo, 11 Tex. Civ. Apj). 79, 32 other causes: § 577. S. W. 814. "* Morton v. West. I'. Tel. Co., 130 "^'West. U. Tel. Co. v. Odom, 21 Tex. N. C. 299, 41 S. E. 484; Fitzgerald Civ. App. 537. 52 S. W. 632; West. V. \. West. U. Tel. Co., 15 Tex. Civ. App. Tel. Co. V. Hines, 22 Tex. Civ. Ap].. 143, 40 S. W. 421. 315, 54 S. W. 627. § 593] MEASURE OF DAMAGES. Ob ( fer samo, the injury is too remote for damages to be recovered. Tho sufferer himself is the only person who can maintain a suit thereon. There are statutes, however, which confer the right to the husband for the benefit of the wife, or the parent for the child ; but this is the ease only when the injured person still lives. These actions also fall within the statutes of limitation, as "actions for the injuries to the person. "^^ § 593. Damages for mental suffering — doctrine denied. While it is held, in some few states, that damages may be recovered for raental suffering unaccompanied by a pecuniary loss or physical injurv; yet the weight of authority hold? a contrary view.^^ With "Kelley v. West. U. Tel. Co.. 17 Tex. Civ^ App. 344, 43 S. W. 532: Martin v. West. U. Tel. Co., 6 Tex. Civ. App. 619, 26 S. W. 136. " United States.— Chase v. West. U. Tel. Co., 44 Fed. 554, 10 L. R. A. 464; Crasson v. West. U. Tel. Co., 47 Fed. 544; Tyler v. West. U. Tel. Co., 54 Fed. 634; Gahan v. West. U. Tel. Co.. 59 Fed. 433; Stansell v. West. U. Tel. Co., 107 Fed. 668; McBride v. Sunset Tel. Co., 96 Fed. 81; West. U. Tel. Co. V. Wood, 57 Fed. (C. C. A.) 471, 21 L. R. A: 706; Wilcock v. Ricliman, etc., R. Co., 52 Fed. (C. C. A.) 264, 17 L. R. A. 804; West. U. Tel. Co. v. Sklar, 126 Fed. (C. C. A.), 295. Com- pare Beasley v. West. U. Tel. Co.. 39 Fed. 181. A7-kansas. — Poay v. West. U. Tel. Co., 64 Ark. 538, 43 S. W. 905, 39 L. R. A. 463. Dakota. — Russel v. West. U. Tel. Co., 3 Dak. 315. Florida. — International Ocean Tel. Co. V. Saunders, 32 Fla. 434, 14 So. 148, 21 L. R. A. 810. Georgia. — Chapman v. West. U. Tel. Co., 88 Ga. 763, 15 S. E. 901, 30 Am. St. Rep. 183, 17 L. R. A. 430; Giddens V. West. r. Tol. Co., Ill Ga. 824, 35 S. E. 638. Illinois.— Wo^t. U. Tel. Co. v. Hal- tom, 71 111. App. 63; North Chicago St. R. Co. V. Dnebner, 85 111. App. 602. Compare Logan v. West. U. Tel. Co., 84 111. 468, holding that nominal dam- ages at least are recoverable. Indiana. — West. I'. Tel. Co. v. Fer- guson, 157 Ind. 64. 00 X. E. 1080, 54 L. R. A. 846, overruling Reese v. West. U. Tel. Co.. 123 Ind. 294, 7 L. R. A. 583n; West. U. Tel. Co. v. Adams, 28 Ind. App. 420. The rule of the Reese case had been followed in West. U. Tel. Co. v. Stratemeier, 6 Ind. App. 125; West. U. Tel. Co. v. Newhouse, 6 Tii.l. A].]). 434: West. I'. Tel. Co. v. Ciinic. S liul. App. 364; West. U. Tel. Co. V. Briscoe. 18 Ind. App. 22: West. r. Tel. Co. V. r>r\ant. 17 Ind. App. 70; Wc^t. r. Ti'l. Co. V. Todd. 22 Ind. App. 701; West. U. Tel. Co. v. Cain, 14 Ind. App. 115. See, also, Hadley V. West. U. Tel. Co.. 150 Ind. 191. Kansas. — ^A'est. v. West. U. Tel. Co.. .39 Kan. !>3. 17 Pac. 807. 7 Am. St. Rep. 530. Maine. — Wyman v. Leavitt, 71 Me. 227. 36 Am. Rep. 303. 568 TELEGKAPH AXD TELEPHONE COMPANIES. [§ 593 all due respect to the courts holding that damages for such injuries may be recovered, we are clearly convinced that the ground upon which they base their ojiinion is not of very firm foundation. We do not deny the fact that the mind is injured to a certain extent as a re- sult of the breach of almost any contract, but it is of such peculiar nature that we cannot begin to estimate the degree of suffering in order to make sufficient compensation therefor. The anxiety of the mind is too refined and vague in its nature to be taken as a subject for pecuniary consideration.*'''^ It deals too much in the spiritual land and is a matter that appeals to the imaginative powers of man to such an extent that it becomes dangerous to tamper with when the riffhts of others are involved. ' Minnesota. — Francis v. \YePt. U. Tel. Co., 58 Minn. 252, 59 N. W. 1078. Mississippi. — West. U. Tel. Co. v. Rogers, 68 Miss. 748, 13 L. R. A. 859n. 9 So. 823, 24 Am. St. Rep. 300; West. U. Tel. Co. V. Watson, 82 Miss. 101; Hartzog v. West. U. Tel. Co., 84 Miss. 448, 105 Am. St. Rep. 459, 34 So. 361. In this state the general rule has been modified to the extent that where the telegraph company has been guilty of a willful wrong or such negligence as amounts to a willful wrong, the plain- tiff may prove his mental anguish in being prevented from being present at the deathbed or funeral of a relative and have it considered by the jury in fixing exemplary damages, although there has been no pecuniary loss or physical suffering. .Missouri. — Coniiell v. West. U. Tel. Co., 116 Mo. 34, 22 S. W. 3.45; 20 L. R. A. 172, 38 Am. St. Rep. 575; Burnett v. West. U. Tel. Co., 39 Mo. App. 599; Denning v. Chicago, etc., R. Co., 80 Mo. App. 152; Newman v. West. U. Tel. Co., 54 Mo. App. 434. New Yorfc.— Curtin v. West. U. Tel. Co., 13 N. Y. App. Div. 253, 3 X. Y. Annot. Cas. 286. 0;uo.— Morton v. West. U. Tel. Co., 53 Ohio St. 431, 32 L. R. A. 735, 53 Am. St. Rep. 648; Kline v. West. U. Tel. Co., 4 Ohio Dec. .224, 3 Ohio M. P. 143; Kester v. West. U. Tel. Co., 4 Ohio Cir. Dec. 410. 8 Ohio Cir. Ct. 286. Oklahoma. — Butner v. West. U. Tel. Co., 2 Okla. 234, 37 Pac. 1087. Pennsylvania. — Kightlinger v. West. U. Tel. Co., 20 Pa. Co. Ct. 630. Sovih Carolina.- — Lewis v. West. U. Tel. Co., 57 S. C. 325, 35 S. E. 556. Tlie rule in this state has been changed by statute, permitting damages in such cases. (§23, Stat. 748; Code (1902), Vol. I, § 2223.) This statute was held to be constitutional in Simmons v. West. U. Tel. Co., 63 S. C. 429. Virginia. — Connelly v. West. U. Tel. Co., 100 Va. 51. 56 L. R. A. 663, 93 Am. St. Rep. 919, 40 S. E. 601; Tyler v W^est. U. Tel. Co., 54 Fed. 634. In this state a statute was passed upon the subject which apparently failed of its purpose. West Virginia. — Davis v. West. U. Tel. Co., 46 W. Va. 48, 32 S. E. 1026. Wisconsin. — Summei'ficld v. West. U. Tel. Co., 87 Wis. 1, 57 N. W. 973. "'Davis V. West. U. Tel. Co., 46 W. \'a. 48. 32 S. E. 1026. ^ 594] MEASUKE OF DAMAGES. 569 § 594. When may be basis of action — malicious or willful wrong. There are instauces where damages may be recovered lor mental suffering disconnected from other losses; and yet this is in the na- ture of punitive damages, or a punishment imposed on the wrong- doer. Thus, if the company's oi^erator is guilty of such gross negli- gence in the discharge of his duties as amounts to a willful wrong, whereby another suffers agony or a distress of mind, the company would be liable in damages for such wrong.^^ It is exacted of the company more to deter others from committing other and similar of- fenses than as a compensation for the mental suffering endured."^ If an agent of a telegraph company should be guilty of such gross negligence as to indicate a w^anton or malicious purpose in failing to transmit and deliver a message, the person injured thereby would be entitled to exemplary damages, although he might not have sustained any loss except a worry and distress of mind.'^" So, in actions for libel and slander, they will be liable in damages to the injured per- son, since in such cases malice is an essential element. When, how- ever, the words are not actionable per se, there must be proof of spec- ial damages. If, on the other hand, they are actionable per se, they have a sure tendency to degTade the citizen in the estimation of his fellows, which results in damages to his social influence and business efiiciency.'^^ When this is the case, it does not devolve upon him to prove other injuries except that endured by the mind. The wrongful act complained of may have been done in good faith but if the subse- quent acts of the company indicate a total disregard of the rights of others, it would still be liable. It would be liable in damages for mental suffering in cases of assault or assault and battery. It was formerly held that a corporation could not be guilty of a wrong, where the element of criminal intent was necessary to constitute the wrong, but this doctrine has long since been refuted. •"West. U. Tel. Co. V. Rogers, GS "Cliainnan v. West. U. Tel. Co.. 8S Miss. 748, 24 Am. St. Rep. 300, 9 So. Ga. 763, 17 L. R. A. 430, 15 S. E. 901. 823. 13 L. R. A. 859n. 30 Am. St. Rep. ISG; West. U. Tel. •■"Scott V. Jarnague on Tel. S§ 417, Co. v. Rogers, G8 :Miss. 748, 24 Am. 418: Southern Kansas R. Co. v. Rice, St. Rep. 300, 9 So. 823, 13 L. R. A. 38 Kan. 398. S59n, •"West. V. West. U. Tel. Co.. 39 Kan. 93. 7 Am. St. Rep. 530, 17 Pac. 807. 570 TELEGRAPH AND TELEPHONE COMPANIES. ["§ 595 § 595. Reasons for not allowing such damages. The general rule, under the commou law, and that followed by the preponderance of authority is, that mental suffering, unaccompanied by other losses or injuries, is not sufficient grounds upon which to maintain an action against a telegTaph company for the recovery of damages therefor, in consequence of a negligent transmission or delivery of a message, although it was informed at the time the mes- sage was accepted for transmission that mental angaiish and suffer- ing would be the result. The best reasons found in our research on this subject were given by Judge Lurton in a dissenting opinion, and as they are so clearly and satisfactorily stated, we take pleasure in quoting them at this place : "The reason an independent actior for such damages cannot and ought not to be sustained is found in the remoteness of such damages, and in the metaphysical character of such an injurs' considered apart from physical pain. Such injuries are generally more sentimental than substantial. Depending largely upon physical and nervous condition, the suffering of one under pre- cisely the same circumstances would be no test of the sufferings of another. Vagiie and shadowy, there is no possible standard by which an injury can be justly compensated or even approximately measur- ed. Easily simulated and impossible to disprove, it falls within all the objections to speculative damages, which are un- iversally excluded because of their uncertain character. That dam- ages so imaginary, so metaphysical, so sentimental, shall be ascertain- ed and assessed by a jury with justness, not by way of punishment to the defendant, but as a mere compensation to the plaintiff, is not to be expected. That the gTief natural to the death of a loved relative shall be separated from the added grief and anguish resulting from delayed information of such mortal illness or death, and compensation given for the latter only, is the task imposed by the law, as determin- ed by the majority. ... It is legitimate to consider the evils to which such a precedent logically leads. Upon what sound legal con- siderations can this court refuse to award damages for injuries to the feelings, mental distress and humiliation where such injury results from the breach of any contract? Take the case of a debtor who agrees to return the money borrowed on a certain day, who breaches his agreement willfully with knowledge that such breach on his part «§, 596] MEASURE OF DAMAGES. 571 will proljably result in the financial vuin and dishonor of his disap- pointed creditor. Why shall not such a debtor, in addition to the debt and the interest, also compensate his creditor for this ruin, or at least for his mental suffering? . . . Fpon what principle can we longer refuse to entertain an action for injured feelings consequent upon the use of abusive and defamatory language not charging a 598 respect to the recovery of damages for mental suffering, wliere such damages are allowed in one state and not in the other. It is very of- ten the case that messages are sent from one state in which such dam- ages are allowed, into another where such are not permitted to be re- covered; and the question which presents itself under these circum- stances is, By what laws should the contract of sending be enforced ? The general rule on this subject is that the laws of the state in which the contract was made, or is to bo performed, should control, unless it is understood that those of the other should control. Under the rul- ings of the courts in those states which permit a recovery of damages for mental anguish or suffering, such damages may be recovered for the negligent transmission or delivery of a message sent into these states from those which refuse to allow such damages."^ The same rule applies where the messages are sent from the states to those which do not permit such recovery, when the action is brought in the former states. So, also, damages may be recovered in the state where the message is sent, although it is to be delivered in a state which does not allow a recovery of such damages.^*' But if both the states, from and to which the message is sent, refuse to allow damages for mental suffering, such cannot be recovered, although the suit is brought in a state which does allow such damages, and one though which the company has a line.^^ It seems that the statutes, in those states permitting a recovery of such damages, raise the duty of these companies above that assumed in the contract of sending, and base their reasons upon the fact that a public duty has been vio- lated and for which damages may be recovered either at the place of sending or receiving. Mr. Thompson said, in discussing this partic- ular subject: "'The true view which seems to sustain the right of ac- tion in the receiver of the message, or in the person addressed, when it is not delivered, is one which elevates the question above the plane of mere privity of contract, and places it where it belongs, upon the public duty which the telegraph company owes to any person bene- ""Gray v. West. U. Tel. Co.. 108 Co. v. V\'aller, 74 S. W. (Tex.) 752, Tenn. 39, 64 S. W. 1063, 56 L. R. A. reversing 72 S. W. 264; West. U. Tel. 301n, 91 Am. St. Rep. 706; West. U. Co. v. Cooper, 29 Tex. Civ. App. 591. Tel. Co. V. Blake, 68 S. W. (Tex.) 526. ^Thomas v. West. U. Tel. Co., 25 «> Bryan v. West. U. Tel. Co., 133 N. Tex. Civ. App. 398, 61 S. W. 501. C. 603, 45 S. E. 938; West. U. Tel. <§, 5*j9] measuke of damages. 575 ficially interested in the message, whether the sender or his principal, where he is agent, or the receiver, where he is agent." ^" § 599. Rule declared by statutes. In concluding this chapter, we beg leave to make some suggestive remarks in regard to this very important subject. The reason that the common law rule has Ix'cn adhered to by not allowing a recovery of damages for mental suffering and anguish unaccompanied by other losses, has doubtless had the tendency to cause these companies, through their employees, to be more derelict in their duties. What we desire to say, is, that there should be some means by which this failure of duty on their part might be prevented. As has been seen, by following the rule of the common law, there can never be a remedy exercised ; then the only way through which the same may be reached is by some statutory amendment to the rule of the common law. There are statutes adopted in some states, and which are discussed in another part of this work, declaring the right to recover such dam- ages. ^\jid while it seems that the courts in these states take cogni- nance of the rule laid down in the So Relle case, yet their decisions rest principally upon the statutes under which the action is brought.®^ The constitutionality of these statutes was tested in South Carolina, and it was there held that they were not in conflict with the constitu- tion of that state. ^^ We do not desire to be imderstood as saying that we altogether approve of the nature of these statutes ; but we do most earnestly approve the spirit and purpose for which they were adopted. While there should be some check placed on these companies for failing to discharge their duties in regard to the transmission of such messages, which we have been discussing, yet we are unable just now to make a suggestion as to how it may be done by statutory- laws, unless it is done by some kind of a statutory penalty. "Thompson on the Law of Elect., *^ Simmons v. West. U. Tel. Co.. G3 § 427. P. C. 425, 57 L. R. A. 607, 41 S. E. "Wadsworth v. West. U. Tel. Co.. .521. See, also. Butler v. West. U. 86 Tenn. 695, S S. W. 574, 6 Am. St. Tel. Co., 62 S. C. 222. 40 S. E. 162, Eep. 8G4. 89 Am. St. Rep. 893. CHAPTER XXV. DAMAGES CONTINUED— EXEMPLARY OR PUNITIVE- EXCESSIVE AND NOMINAL. § 600. In general — meaning of term. 601. Same as applied to corporations. 602. Done by agents and employees — malice. 603. Whether a question of fact or law. 604. The purpose of such damages. 605. Assault and battery. 606. Libel. 607. Malicious prosecution. 608. Trespass — accompanied with malice. 609. Negligence — question for jury. 610. Same continued — against telegraph companies. 611. Same continued — actual damages. 612. Excessive damages. 613. When rule invoked. 614. Same continued — mental suffering — excessive. 615. Same continued — not excessive. 616. Nominal damages. § 600. In general — meaning of term. Having discussed at some length in the preceding chapters the measure of damages arising in different cases brought against tele- graph companies, we shall now say something further in regard to the same subject, but more particularly with respect to the kinds and amount of damages; and, first, we shall discuss such as are exem- plary or punitive, or such as are imposed on these companies by way of punishment. Punitive, vindictive and exemplary damages are synonymous terms in legal contemplation.^ Exemplary damages ap- ply to those wrongs which, beside the violation of a right or the act- ual damages sustained, import insult, fraud or oppression, and are injuries inflicted in the spirit of wanton disregard, and not merely injuries.^ While there has been some discussion between law-writers * Herfurth v. Washington, 6 D. C. 74 Am. Dec. 406; Bixby v. Dunlap, 56 99; Lowry v. Coster, 91 111. 182; N. H. 456, 22 Am. Rep. 475. Koemer v. Oberly, 56 Ind. 284, 26 Am. "New Orleans, etc., R. Co. v. Stath- Rep. 34; Chiles v. Drake, 2 Mete, 146, am, 42 Miss. G07, 97 Am. Dec. 478; (576) ^ 600] MEASURE OF DAilAGES. 577 as to whether this kind of damages was intended as a personal pun- ishment to the offender, or as a lesson to the public,^ the better doc- trine is that such damages are given as a punishment to the offender, for the benefit of the public and as a restraint to the transgressor.'* Actions for the recovery of such damages can only be sustained where there is malice, fraud or gross negligence engendered in the commis- sion of the act, and, in order to warrant a recovery of such, there must enter into the injury some element of aggravation, or some col- oring of insult or malice that will take the case out of the ordinary rule of compensation ; if there is a want of any of these elements, the measure of damages is the measure of compensation for the loss sustained and nothing more.^ The question as to whether an act was willful, wanton or malicious relates only to damages and not to the right of recovery ; and if the act complained of can be so classified, the jury is authorized by law to award such damages.^ It must be understood that this rule applies only when the action is brought in tort, for only actual damages can be recovered for a breach of a con- tract, although the defendant willfully disregarded compliance with -neli contract.' There is one exception, however, to this latter rule ; Zimmerman v. Bonzar, 16 Atl. (Pa.) 71; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456, 42 Am. Rep. 373; So. E. Co. V. Kendrick, 40 Miss. 374, 90 Am. Dec. 332. MVright V. Donnell, 34 Tex. 291. See, also. So. R. Co. v. Barr, 55 S. W. 900, 12 Ky. L. Rep. 1615. * Burns V. Campbell, 71 Ala. 271: St. Louis Consol. Coal Co. v. Haenni, 146 111. 614, 35 N. E. 162; Ward v. Ward, 41 Iowa 686; Kansas City, etc., R. Co. V. Kier, 41 Kan. GOl, 21 Pacific 770, 13 Am. St. Rep. 311; Edwards v. Ricks, 30 La. Ann. 926; New Orleans 40 Miss. 395; Millard v. Brown. 35 N. Y. 297; Rippey v. Mil- ler, 33 N. C. 247; Cole v. Tucker, 6 Tex. 266; Borland v. Barnett, 76 Va. 128, 44 Am. Rep. 152; Mayer v. Frobe, 40 W. Va. 246, 22 S. E. 58; T. & T.— 37 Press Pub. Co. v. Munroe. 73 Fed. 196, 19 (C. C. A.) 429, 51 L. R. A. 353. 'Kelly V. McDonald, 39 Ark. 387; Selden v. Cashman, 20 Cal. 56, 81 Am. Dec. 93; Biloxi City R. Co. v. Maln- ney, 74 Miss. 738, 21 So. 561; Chica- go, etc., R. Co. V. Scurr, 59 Miss. 456, 42 Am. Rep. 373; Chicago, etc., R. Co. V. Jackson, 55 111. 492, 8 Am. Rep. 661. *Kirton v. Xortli Chicago St. R. Co., 01 111. App. 554. MVest. U. Tel. Co. v. Way, 83 Ala. 542, 4 So. 844; Haber, etc.. Hat Co. V. Southern Bell Tel. Co., 118 Ga. 874, 45 S. E. 696; Stuart v. West. Tel. Co., 66 Tex. 580, 59 Am. Rep. 623; West. U. Tel. Co. V. Brown, 58 Tex. 170, 44 Am. Rep. 610: McAllen v. West. U. Tel. Co., 70 Tex. 243, 7 S. W. 715; Davis V. West. U. Tel. Co., 46 W. Va. 48, 32 S. E. 1026. 578 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 600 that is, where the action is brought for the breach of promise of mar- riage.^ § 601. Same as applied to corporations. At one time, on account of tlie inability of corporations to enter- tain an evil intent, it was held that punitive or exemplaiy damages could not be imposed upon them,. In fact they were not held liable for a tort. But "the law of remedies against corporations originated when those artificial bodies were few, and those few were, in the main, such as were created for municipal purposes. As corporations multiplied, created chiefly for purposes of trade, the obstacle in the way of the attainment of justice, which arose out of principles applicable only to municipal corporations, have gradually been re- moved" and swept away.^ A corporation is now held just as liable for an act, when committed either with or without an evil intent, so far as it may have been done while acting within the scope of its author- ity, as if the act had been committed by an individual. ^"^ So, they may be liable for all their torts, and this liability may be enforced in the same manner and way as if the wrong complained of had been com- mitted by a natural person. ^^ It has sometimes been questionable whether damages for punishment could be given in civil cases. -^^ In the state of Washington it has l^een adjudged that the principle for allowing such damages was unfair and unsound, and they are not, therefore, allowed in that state, although the corporation may have « Kurtz V. Frank, 76 Ind. 594, 40 C. 475, 14 S. E. 947, 28 Am. Am. Rep. 275. 8t. Rep. 855; Samuels v. Ricli- •Dock V. Elizabethtown Steam Mfg. mond, etc., 35 S. C. 493, 14 S. E. Co., 34 N. J. L. 312; New York, etc., 943, 28 Am. St. Rep. 883. R. Co. V. Schuyler, 34 N. Y. 30. See, >' Cooley on Tort.s 120; Peebles v. also the monographic note to Orr v. Patapsco Guano Co., 77 N. C. 233; Bank of the United States, 13 Am. Hayos v. Houston R. Co., 46 Tex. 272: Dec. 596; Hussey v. Norfolk So. R. Co., Lee v. Village of Sandy Hill, 40 N. Y. 98 N. C. 34, 3 S. E. 923, 2 Am. St. 442 ; Orr v. Bank of the United States. Rep. 312 and note. 1 Ohio 36, 13 Am. Dec. 588 and note; ^'Atlantic, etc., R. Co. v. Dunn, 10 Hussey v. Norfolk So. R. Co., 98 N. Ohio St. 162, 2 Am. Rep. 382; Inter- C. 34, 3 S. E. 923, 2 Am. St. Rep. national, etc., R. Co. v. Tel., etc., Co., 312 and note. 69 Tex. 277, 5 Am. St. Rep. 45; Spell- "Fay v. Parker, 53 N. H. 342, 16 man v. Richman, etc., R. Co., .35 S. Am. Rep. 270. § 602] MEASURE OF DAMAGES. 579 been guilty of gross negligence. ^^ It has been held that damages b;y way of punishment merely cannot be recovered in any case.^^ In Colorado, punitive damages cannot be recovered against a coqjora- tii»u in a civil ;iction, although the wrong complained of was willful- ly committed.'" The great weight of authority is, however, that such damages may be recovered against a corporation in civil actions, and the remedy is just as enforcible against them as if the same act was that of a natural iierson.^'"' It is further held that the right to re- cover such damages is not confined to one kind of actions, but that they may be recovered in case, as well as in trespass. ^^ § 602. Done by agents and employees — malice. Corporations are liable in exemplary or punitive damages for such acts done by their agents or employees while acting within the scope of their employment, as if the same act was done by an individual acting for himself;'^ and when such damages are allowed, they should be proportioned to the actual damages sustained. ^^ As said, there must be some element of malice in order to recover these dam- ages, but it is not necessaiy that there be actual malice.-" Malice of a corporation may be showTi by proving the motives of its directors, in the same way that the motives of other associated or conspiring bodies are proved.^ ^ Malice, in its legal sense, means a wrongful act, done intentionally, without just cause or excuse : and the malice of the agent or employee of a eor])oration, in this sense, is the malice of the " Spokane Truck & Dray Co. v. ''Hopkins v. Atlantic, etc., R., Co., 36 Hoefer, 2 Wash. 45, 11 L. E. A. 689n, X. H. 9, 72 Am. Dec. 287. 26 Am. St. Rep. 842, 25 Pac. 1072. "Magouirk v. West. U. Tel. Co., 79 " Stuyvesant v. Wilcox, 92 Mich. Miss. 032, 89 Am. St. Rep. 663 ; Atlan- 233, 31 Am. St. Rep. 580, 55 X. W. tic Great Western R. Co. v. Dunn, 19 6G2. Ohio St. 162, 2 Am. Rep. 382. "Groely, etc., R. Co. v. Yeager, 11 ''International, etc., R. Co. v. Tel., Colo. 645. etc.. Co.. (i!) Tex. 277, 5 S. W. 517, 5 " Spellman v. Richmond, etc., R. Co., Am. St. Rep. 45. 35 S. C. 475, 14 S. E. 947, 28 Am. St. =• Spellman v. Richmond, etc., R. Co., Rep. 858 and note; Hoboken Printing. 35 S. C. 475, 14 S. E. 947, 28 Am. Co. V. Kahn, 59 N. J. L. 218, 35 St. Rep. 858 and note. Atl. 1053, 59 Am. St. Rep. 590 and -» Goodspeed v. East Haddam Bank, note. 22 Conn. 530, 58 Am. Dec. 439. 580 TELEGRAPH AND TELEPHONE COMPANIES. \_^ 602 corporation.^- The act of an officer, agent or servant of a corporation, when committed within the scope of his authority and employment, is the act of the corporation, and his negligence is its negligence.^^ Corporations only act through their agents and employees, and if the latter entertained no evil intent, the former could not be liable for a criminal act; for, without this, the criminal intent could not be entertained by the corporation. In a sense, the servant of the corpor- ation is the life, or that which creates life in the latter. Therefore, there must be an element of fraud, violence, outrage, wanton reck- lessness, malice, evil intent or oppression forming part of the wrong- ful act of the agent or employee ; and if there is not shown any circumstance of aggravation, and no evil motive is imputed in the agent as forming a part of his actual or apparent duties, vindictive or punitive damages should not be awarded against the corporation.-* § 603. Whether a question of fact or law. In cases brought against corporations — and of course we include in these, telegraph and telephone companies — to recover exemplary or punitive damages, it is sometimes difficult to determine whether the facts involved are such as should be left to the consideration of the court, or should be given to the jury under proper instructions. It is generally held, that whether there is or is not evidence in any particular case which would warrant exemplary or vin- dictive damages, is a question for the court to determine ; but its suf- ficiency to establish such fact, is a matter for the consideration of the jury.-^ In such actions as these, it is the privilege and the duty of the court to determine whether there is sufficient evidence to sup- port the allegations, but it cannot go further and announce to the jury in its instructions, that there is or is not enough evidence adduc- ed to support the issue. In the trial of the case, if it is shown by the *^Maynard v. Fireman's Fund Ins. 62 Md. 300, 50 Am. Rep. 223; Chicago Co., 34 Cal. 48, 91 Am. Dec. 872. v. Martin, 49 111. 241, 95 Am. Dec. 590; ^Hopkins v. Atlantic, etc., R., 36 N. Toledo, etc. R. Co. v. Patterson, 63 111. 36 H. 9, 72 Am. Dec. 287. 304; McFee v. Vicksburg, etc., R. Co., »*New Orleans, etc., R. Co. v. Stat- 42 La. Ann. 790, 7 So. 720. ham, 42 Miss. 607, 97 Am. Dec. 478; «> Samuels v. Richmond, etc., R. Co., Mackeon v. Citizens' R, Co. 40 Mo. 79; 35 S. C. 493, 28 Am. St. Rep. 883, 14 Philadelphia, etc., R. Co. v. Hoeflich, S. E. 943. § 604] MEASURE OF DAMAGES. 581 proper evidence that the act complained of "was wantonly and will- fully inflicted, or with such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wan- tonness, the court will instnict the jury that they are at liberty to find for the plaintiff, in addition to a compensation for the injury ac- tually sustained, such a sum as the circumstances justify." ^^ But, if on the other hand, there is not sufficient evidence to impute willful- ness, wantonness or a disregard for the rights of others, the court on proper request may instruct the jury that the evidence is not suffic- ient to warrant them in assessing exemplary damages. ^^ Some courts have held, that the jury should not be instructed on the question of vindictive damages in cases clearly not warranting its application, on account of the great abuses to which this doctrine may be used.^® § 604. The purpose of such damages. The purpose in awarding exemplary damages is to compensate the plaintiff for the wrong done him, and at the same time to punish the corporation for committing such wrong, and to deter it and others from repeating such acts.^^ On account of the nature of corpora- tions, the manner in which they must be punished for the wrongful acts, is different from that generally imposed on individuals or nat- ural persons for the same act. It is not necessary to furnish a jury with the data from which they can ascertain with reasonable cer- tainty the extent of the damages to be awarded, but the amount of such is at the discretion of the jury within reasonable limits. If there is sufficient evidence adduced to warrant a verdict for exem- plary damages, the pecuniary condition of the corporation may be shown, since by this means the extent of the punishment to be in- flicted in every particular case can only be ascertained. Exemplary damages inflicted on a corporation as a means of punishment for its wrongful acts, may be excessively great on account of its small wealth, but at the same time the same amount of damages would, -"•Id. 35 S. C. 493, 28 Am. St. Rep. 883, =' Pittsburg, etc.. R. Co., v. Slasser, 14 S. E. 943. 19 Ohio St. 157: Toledo, etc.. R. Co. v. ™ Cumberland, etc.. Tel. Co. v. Post- Patterson, G3 111. 304. on. 94 Tenn. 096. -* Samuels v. Richmond, etc., R. Co., 5S2 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 604: on another corporation which represents much greater capital, be con- sidered a small punishment. But the fact must not be lost sight of thatj in all cases of this kind, the jury is to be governed wholly bj the malice or wantonness of the corporation as sliown by its con- duct,^^ and they may take into consideration the injury to the plain- tiff's feelings and the loss of his credit in estimating exemplary dam- ages.^ ^ § 605. Assault and battery. The general rule of common carriers is that they are answerable for the malicious and wanton acts of their servants to a passenger, whether done in the line of their employment or service or not, pro- vided the same is done during the discharge of their duty to the mas- ter which relates to the passenger. They, as common carriers, owe the duty toward their passengers to protect them against the insults of their servants.^- Telegraph companies are made common carriers by statutes in many states, but there is a distinction to be drawn between these two kinds of carriers with respect to the present issue ; however, we do not think that the distinction is material in the present discus- sion. One is a common carrier of passengers, and is entrusted with the person of the individual to whom it owes the duty of protection ; the other is only entrusted with the property of the person. While the carrier owes this duty to the passenger only when he is a passen- ger, yet it is not necessary for him to be in actual transit or on board the vehicle furnished for his transportation in order to constitute him a passenger. If he has made arrangements for passage and is within the premises of the company in readiness of departure, as where he is in the depot or waiting-room, he is nevertheless a passenger within the meaning of the terms. We have been unable to find a case against a telegraph company touching on this particular point, but we can easily imagine instances where such cases could occur. Eor instance, •"State V. Patterson, 4.5 Vt. 308, 12 Me. 202, 2 Am. Rci^. .30; Hoboken Am. Rep. 200. Print., etc., Co. v. Kahn, 59 N. J. L. '■Note to Burnham v. Cornwell, 63 218, 59 Am. St. Rep. 592; Richmond, Am. Dee. 545; Tobin v. Shaw, 45 Me. etc., R. Co. v. .Jefferson, 89 Ga. 554, 32 331, 71 Am. Dec. 547. Am. St. Rop. 87 and note. " Goddard v. Grand Trunk R. Co., 57 <§ 606] MEASURE OF DAMAGES. 583 if a person is within the office or exchange of a telegraph or telephone company, transacting or for the purpose of transacting business with respect to the transmission of news, or engaging its employment, and while there the agent or servant of the company commits an assault and battery iipoTi suoli person, which is done while acting within the apparent discharge of his duty to the company relative to the services of employment, the company would be liable for such act. We shall presume to go further in the discussion of this subject by saying that wc do not think it necessary that such person should be within the ])remises of the company ; but if he is accompanying one of the ser- vants of the company to the office or exchange for the purpose of an- swering a call, and is in the apparent protection of the servant a? such, an assault by such servant, will be considered that of the com- pany. For instance, suppose that the servants of the telephone com- pany conspire to commit an assault on a strange lady in a small town, and in order to accomplish their purpose they put in a false call at night for her. To answ^er said call, it becomes necessary for the latter to go to the exchange, and, according to the plans of the conspiracy, one of the servants offers to and does accompany her to the exchange. On reaching the exchange the supposed person calling her cannot be found and she then returns, in the company of the ser- vant, to her stopping place. If while enroute an assault is committed on her by said sen^ant, the company would undoubtedly be liable. § 606. Libel. While all corporations may be civilly liable for a libel,^^ yet the opportunities more often present themselves for such acts to be com- mitted by telegraph companies than by most any other kind of cor- poration, unless it be a publishing company. Their express purpose is to transmit news, and most often such as is libelous is made public by means of these companies. As is known, the publishers of a libel are as guilty as the author himself, and whenever one or more per- =»Belo V. Fuller, 84 Tex. 450. 19 S. :\IcDorinott. 44 N. J. L. 430, 43 Am. W. 61G, 31 Am. St. Rep. 75; Fogg v. Rep. 392; Johnson v. St. Louis Dis- Boston. etc., R. Corp., 148 Mass. 513. patch Co.. 05 :Mo. 539, 27 Am. Rep. 20 N. E. 109, 4 L. R. A. 382n, 12 Am. 293. St. Rep. 583 ; Evening Journal Assn. v. 584 TELEGEAPH AjS'D TELEPHONE COMPANIES. [<§, 606 sons, other than he on whom the calumny is cast, sees the libelous words, this is sufficient publication. It seems that it is not necessary that some third person, disconnected from the company, should have seen the libelous words in order to make a publication, but if the ser- vants of the company see them, this is sufficient. So, in an action against a telegraph company for libel, the jury would be authorized to give such exemplary damages as the circumstances required, if the evidence shows that the publication was the result of that reckless in- difference to the rights of others which is equivalent to the inten- tional violation of them.^* When malice on the part of the company is established as a fact in such cases, either actually or by presumption or inference of facts from the libelous character of the publication, exemplary damages may be recovered. ^^ If, however, there is no evi- dence that the company published the libel carelessly, maliciously or wantonly, exemplary or punitive damages cannot be recovered.^" The damages sustained must be more than merely nominal, and if the jury should find that this is the only loss suffered, they would not be justified in awarding punitive damages ; ^^ but, if it is shown that the publication was maliciously made to bring reproach upon the plaintiff's business or domestic relations, damages other than nominal will be presumed and exemplary damages may be recovered.^ ^ It is not necessary that the publication be made by means of transmission of news, but if it is done carelessly, recklessly or maliciously in any other way by its servants while acting within the scope of their au- thority, it will be liable. For instance, suppose a telephone company negligently prints the name of one of its subscribers in the directory, "■ Morning Journal Assn. v. Ruth- 16 Pac. 804 ; West. U. Tel. Co. v. Cross, erford, 51 Fed. 513, IG L. R. A. 803; 74 S. W. 1098.' Cooper V. Sun Print., etc., Assn., 57 When plaintiff makes out a case en- Fed. 566. titling him to recover the price paid ^ Childers v. San Jose, etc., Pub. for transmission, that is a showing of Co., 105 Cal. 284, 38 Pac. 903, 45 Am. actual damages which will warrant al- St. Rep. 40. lowance of exemplary damages if a wil- '•'■^ Philadelphia, etc., R. Co. v. Quig- full injury or gross negligence is ley, 21 How. 202; Missouri Pac. R. Co. shown: West. U. Tel. Co. v. Lawson, V, Richmond, 73 Tex. 568, 11 S. W. 66 Kan. 660, 72 Pac. 283. 555, 15 Am. St. Rep. 794, 4 L. R. A. »» West. U. Tel, Co. v. Rogers, 68 280n. Miss. 748, 24 Am. St. Rep. 300, 13 L. ' "Schippel V. Norton, 38 Kan. 567, R. A. 859n, 9 So. 823. <^ 607] MEASUEE OF DAMAGES. 585 SO as to indicate that he is a different person from that which he really is, and these are afterwards published or distributed — against the said person's consent — to the other subscribers by the servants in a malicious manner and in utter disregard of consequences, the com- pany will be liable. § 607. Malicious prosecution. A telegi-aph company may be held liable for a malicious prosecu- tion conducted by its agents and officers, just as if it were a natural person, and, in such cases, where it is shown that the case was malic- iously prosecuted, exemplary or punitive damages may be recovered. "The old doctrine was," said Judge Campbell, "that a corporation was not so liable, because malice is the gist of the action, and it was said that malice could not be imputed to a mere legal entity, which having no mind could have no motive and therefore no malice, and this narrow view still prevails to some extent. But the steady process of judicial evolution has led to the establishment in some of the courts of the just doctrine of the civil responsibility of a corporation for the acts of the sentient persons who represent it, and through whom it acts, and of the liability of a corporation for the acts of it^ agents, under the conditions that attach to individuals." ^^ § 608. Trespass — accompanied with malice. It is necessary that bad motives be involved in order that exem- plary damages may always be recovered in actions of tort against a corporation. They arc not recoverable for every trespass made by a corporation on other's lands, but only where it is committed through malice, or is accompanied by threats, oppression or rudeness to the owner or occupant, can they be recovered. Punitive damages are not allowed where the trespass has been made in good faith or by mistake as to authority, otherwise they will be.^" Thus, in one case the employees of a telephone company went to the owner of a tree which was standing in front of his house to get permission to ^Williams v. Printers' Ins. Co., 57 ber Co., 115 N. Car. 648, 20 S. E. Miss. 759, 34 Am. Rep. 494 and note. 718; Silver Creek, etc., Co. v. Mangum. *" Waters v. Greenleaf- Johnson Lum- 64 Miss. 682. 586 TELEGRAPH AXD TELEPHONE COMPANIES. ["§ 608 trim it, so as to stretcli a line of wire along the street. On refusal of the o"\^Tier to gTant such permission, if they wait until he leaves home and then trim the tree, the company will be liable, and in addition to the actual damages sustained, to punitive damages; ^^ or, if they w^ait until night to take advantage of such right, the company will be lia- ble to exemplary or punitive damages. Should the company's ser- vants trespass upon the land of another, against his consent in the construction of a line of wires, and in doing so destroy his crops ad- joining the right of way, the company will be liable in punitive dam- ages.^^ In other words, the company will be liable for the unlawful trespass of its servants committed while in the discharge of their duty toward the company, just the same as the servants would be if they were acting for themselves. § 609. Negligence — question for jury. Exemplary or punitive damages cannot be recovered from a tele- graph company for injuries to the person caused by the mere negli- gence of its servants or employees; so, a jury would be unwarranted in awarding such damages, where it is shown that the injury is the result of nothing more than negligence on the part of the servants.^^ Thus, a mere refusal by a telephone company to furnish a long dis- tance connection, will not justify the allowance of exemplary dam- ages. Such damages are only allowed for personal injuries, when the wrong is wantonly and willfully inflicted, or with such gross want of care and regard for the rights of others as to justify the presump- tion of wantonness or willfulness.'*^ In other words, the injury must be the direct result of the act of the agents, where they have been guilty, not only for want of ordinary care, but of that entire want of care which would raise the presumption of a conscious indifference " See § 125. v. West. U. Tel. Co., 70 Tex. 243 ; Da- "Id. vis V. West. U. Tel. Co., 46 W. Va. «West. U. Tel. Co. v. Way, 83 Ala. 48, 32 S. F. 1026. 542, 4 S. E. 844; Haber, etc., Hat Co. "Magouirk v. West. U. Tel. Co., 79 V. Southern Bell Tel. etc., Co., 118 Ga. Miss. 632, 31 So. 206, 89 Am. St. Rep. 874, 45 S. E. 696; Stuart v. West. U. 663; Lewis v. West. U. Tel. Co., 57 S. Tel. Co., 66 Tex. 580, 59 Am. Rep. C. 325, 35 S. E. 556. See also Butler 023; West. U. Tel. Co. v. Brown, 58 v. West. U. Tel. Co., 65 S. C. 510, Tex. 170, 44 Am. Rep. 610; McAllen 44 S. E. 91. <^ GIO] MEASURE OF DAMAOKS. 587 to consequences, or wliicli shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of theni.-*^ Thus, it has been held, that punitive damages can be recovered where a messenger boy intention- ally fails to deliver a message.*" Whether there is or is not sufficient evidence adduced to disclose wanton and gross negligence, it is not only a privilege but the duty of the court, by proper request, to in- struct the jury that they may "^^ or may not award punitive damages as the case may be."*'^ It is a question for the jury on being properly instructed, to determine whether, from the evidence, the degree of care exercised amounts to the degree of gross negligence to constitute the act as willfully or wantonly committed.'*'' § 610. Same continued — against telegraph companies. All that has been said in this chapter with respect to exemplary damages, applies with equal force to telegraph companies. Thus, ex- emplary, punitive or vindictive damages may be recovered against a telegraph company for a failure to transmit and deliver a message, where there is such gross negligence on the part of the agents or em- ployees of the company as to indicate wantonness or a malicious pur- pose in failing to transmit and deliver it.^'^ So also, if the agent of the company who receives a reply message for transmission, knows the "West. U. Tel. Co. v. Seed, 115 Ala. the gross negligence is the employment 670, 22 So. 474; West. U. Tel. Co. v. of an incompetent agent and it appears Cunningham, 99 Ala. 314, 14 So. 579; that the agent referred to had never West V. West. U. Tel. Co., 39 Kan. 93. been negligent before, exemplary dama- 7 Am. St. Rep. 530, 17 Pac. 807: ges are not recoverable: West. U. Tel. Southern Kan. R. Co. v. Rice, 38 Kan. Co. v. Karr, 5 Tex. Civ. App. 60. 398, 16 Pac. 817, 5 Am. St. Rep. 766: « Butler v. West. U. Tel. Co., 65 S. West. U. Tel. Co. v. Lawson, 66 Kan. C. 510, 44 S. E. 91. 660, 72 Pac. 283; West. U. Tel. Co. *" Kansas Pac. R. Co. v. Kessler, 18 V. Watson, 33 (]Miss.) 76; Young v. Kan. 523. West. U. Tel. Co., 65 S. C. 93, 43 *^ Chicago R. Co. v. Curr, 59 Miss. S. E. 448; West. U. Tel. Co. v. Frith. 450, 42 Am. Rep. 373. 105 Tenn. 167, 58 S. W. 118; West. " Southern, etc., R. Co. v. McLendon, D. Tel. Co. V. Morris, 77 Tex. 173, 13 63 Ala. 266, 14 So. 579; Bannon v. S. W. 888; Gulf, etc., R. Co. v. Le\x. Baltimore, etc., R. Co., 24 Md. 108. 59 Tex. 542, 46 Am. Rep. 69. Where " See note 45. 588 TELEGKAPH AND TELEPHONE COMPANIES. [<^ 610 iTrgent necessity for promptness in forwarding it, but delays sending it off until the next morning, it is a question for the jury to decide whether this was not such gross negligence as evinced an utter disre- gard of plaintiff's feelings and rights, and if they so determine, puni- tive damages may be awarded."^ If the employees of the company negligently allow the wires to fall on the wires of an electric light company, and to remain there hanging down, the company will be liable in exemplary damages to one injured by accidentally coming in contact with the wires, if the employees acted in a spirit of mis- chief or criminal indifference, and it was known to the company's managers ; or, if the managers did not exercise proper care in select- ing the employees, or if they knew, or had means of knowing, that they were not skillful, prudent or careful, it would still be liable.^^ A telegraph company cannot, however, be held answerable in exem- plary damages for an injury occasioned by its servants or employees, in the absence of willful or malicious conduct or intentional wrong.^^ So, a telegraph company is not answerable in exemplary damages on account of the mere failure of its agents to find the addressee of a message, where it is not shown that the company had knowledge of the incompetency of its agents when they were employed, or that they were retained after it was known.^^ § 611. Same continued — actual damages. In cases brought against telegraph companies to recover punitive damages for injuries resulting from the willful acts of their servants or employees, it is necessary to show that actual damages have been sustained. While this is the rule, yet the amount of damages sus- tained may be very small. Thus, it was held that when the plain- tiff makes out a case entitling him to recover the price paid for trans- mission, this is a sufficient showing of actual damages to warrant the •^West. U. Tel. Co. v. Cunningham, "'West. U. Tel. Co. v. Eyser, 91 U. 99 Ala. 314, 14 So. 579; Butler v. S. 495, note reversing 2 Colo. 141; West. U. Tel. Co., 62 So. C. 22, 40 Erie Tel. Co. v, Kennedy, 80 Tex. 71. S. E. 162, S9 Am. St. Rep. 893, 55 L. "West. U. Tel. Co. v. Karr, 5 Tex. R. A. 414. Civ. App. GO, 24 S. W. 302. '^^Henning v. West. U. Tel. Co., 41 Fed. 864. <5> 612] MEASURE OF DAMAGES. 589 allowance of cxemplaiy damages, if a Avillful injury or gross negli- gence is shown.^^ If, however, mental suffering has been the result of injury to the character or reputation of one of the parties to a forged telegram sent by the company's agent, while acting within the scope of his authority or employment, it is not necessary that actual damages be sustained.^" § 612. Excessive damages. We shall not comment to any great extent upon the subject of ex- cessive damages, since there is no difference in the application of the rules of law on this subject as regards actions brought against tele- graph and telephone companies and those brought for the same causes against other corporations and individuals ; ^" and to treat the sub- ject as it should be, would necessarily consume much valuable time and encumber the pages of this work with matter foreign to the ob- ject for which it was prepared. Damages, as has been said elsewhere, are regarded as a compensation for infringement of the rights of others; and when not connected with matters of aggravation or mal- ice, they are considered as matter within the discretion of the jury, under proper instructions by the court,?^ and an appellate court will seldom interfere with the verdict when rendered. The general rule on this point as expressed by Judge Story is, ''that a verdict will not be set aside in a case of tort for excessive damages, unless the court can clearly see that the jury has committed some very gross and palpable error, or has acted under some improper bias, influence or prejudice, or has totally mistaken the rules of law, by which the damages are to be regulated." ^^ In such cases, the court should con- "West. U. Tol. Co. V. Lawson, 66 Rop. 43, 54 L. R. A. 752; Wynne v. Kan. 660, 72 Pac. 283. Atlantic Ave. R. Co., 156 N. Y. 702, "Magouirk v. West. U. Tel. Co., 79 51 N. E. 1094; New Orleans, etc., R. Miss. 632, 31 So. 206, 89 Am. St. Rep. Co. v. Schnieider, 60 Fed. 210, 8 C. C. 663. A. 571; Missouri Pac. R. Co. .v. Texas, "West. U. Tel. Co. v. McCall, 9 Kan. etc., R. Co., 33 Fed. 803; Montreal Gas App. 886, 58 Pac. 797; Peterson v. Co. v. St. Lawrence, 26 Can. Supreme West. U. Tel. Co., 75 Minn. 368, 74 Ct. 176. Am. St. Rep. 502, 43 L. R. A. 581. '^'Whipple v. Cumberland Mfg. Co.. "Birmingham R. etc., Co. v. Baird, 29 Fed. Cas. No. 17516, 2 Story 661. 1.30 Ala. 234, 30 So. 556, 89 Am. St. 590 TELEGKAPH AXD TELEl'llOXE COMPANIES. [<§> G12 sider all tlio circumstances surrouiiJiiig- the case and consider there- from whether the verdict is fair and reasonable ; and it "vvill be pre- sumed that thev are fair and reasonal)le, unless they are clearly so excessive or outrageous with reference to those circumstances as to demonstrate that the jury have acted against the rules of law or has allowed their passions and prejudices to overcome their better judg- ment. '''' As said, the court, in determining the question as to whether or not damages which have been awarded are excessive, must be gTiided by the circumstances of each particular case ; but if it clearly appears that the jury has mistaken the law, or has allowed their feelings or bias in the case to misled them, the court should not hesitate to set the verdict aside ^^ § 613. When rule invoked. It is seldom that this rule is invoked, except in cases where dam- ages for mental suffering is claimed. In one case, falling: under this rule, it w.as held that $600 was not excessive where the delayed mes- sage was one requesting the presence of a physician, and in conse- quence of the delay, the sufferings of plaintiff's wife in confinement were prolonged about two hours."" In a case similar to this, it was held that $950 was not excessive.*''^ On account of the non-delivery of a message requesting a ticket, plaintiff complained that he Avas compelled to walk and steal rides from Grand Junction, Colorado, to Lovelock, ISTevada. An allowance of $1,250 was held excessive. In another case, it appeared that the plaintiff was a commercial news agent in Cincinnati, engaged in furnishing to customers financial news and reports for New York City as to the state of the market. He alleged a willful and malicious breach of contract on the part of the telegraph company. The verdict was for $3,000, though the ac- tual damages appeared to be not more than five hundred. The court •■■o Ottawa V. Sweely, 65 111. 434; Har- 1.3 Ky. L. Rep. 626, 36 Am. St. Rep. vis V. Louisville, etc., R. Co., 35 Fed. 595, 14 L. R. A. 677. 116: Walker v. Erie R. Co., 63 Barb. "^Vest. U. Tel. Co. v. Cooper, 20 S. . 260. W. (Tex.) 47, affirming 71 Tex. 507, 10 " Kansas Pac. R. Co. v. Peavey, 34 Am. St. Rep. 772, 1 L. R. A. 728. K:ui. 872. 8 Pac. 780; Standard Oil Co. «nVest. U. Tel. Co. v. Church, 90 X. V. Tiernev, 92 Ky. 367, 17 S. W. 1025. \V. 878, 57 L. R. A. 905. <^ G14] aiEASL'KE Oi-' DAMAGES. 591 ordered tlie amount to Ix- reduced by a remittitur of $2,000, lioldiug, however, that the phiiiititT liad a right to more than the actual dama- ges sustained/'* § 614. Same continued — mental suffering — excessive. As said ill ilic preceding section, the question of excessive damages is seldom questioned, except in cases in which damages for mental suffering are claimed. In these cases, the damages awarded are some- times so flagrantly gi'eat that courts can easily see that the jury was biased, prejudiced or failed to understand the law applicable to the case. Thus, where the company failed to promptly deliver a message to a mother asking her to come to her sick son, and by reason of the delay she did not see him until after his death, whereas she would have been able to have seen him fully twenty-four hours before death if the message had been promptly delivered, it was held that a ver- dict of $5,000 in favor of the plaintiff was so excessive as to shock the sense of justice, and to clearly indicate that the jury were influenced by passion or prejudice.''^ In another case the son, on account of non-delivery of a message, was prevented from reaching his father in the latter's sickness until his father was unconscious. He was with him, however, for several days before his death. The father was 73 years old, and his son 50, and an unusual strong affection was shown to have existed between them. It was held that a verdict of $4,750 was excessive.^'' Each of these cases cited and approved another case where a verdict of $4,500 was held excessive, the evidence showing that a message sent to a boy's father was delayed, and by reason of the delay the father was kept away from the bedside of his dying son.®" Other cases will be found in notes where damages were held excessive.®^ "West. U. Tel. Co. v. Rosentretter, " Tennessee- West. U. Tel. Co. v. Mel- 80 Tex. 406, 16 S. W. 25. Ion, 100 Tenn. 429 ($500.00) ; Railroad "Stuart V. West. U. Tel. Co., 66 Co. v. Griffin, 92 Tenn. 694 (.$900.00). Tex. 580. IS R. W. ,151. r^<^ Am. Rep. Texas.— West. U. Tel. Co. v. Evans. 023. 1 Tex. Civ. App. 297. 21 S. W. 26(i «MVost. I'. Tel. Co. V. Piner. 1 Tex. ($5,000.00); West. U. Tel. Co. v. Ber- Civ. App. 301. 21 S. W. 315. iline, 2 Tex. Civ. App. 517 ($1,999.99) ; •"West. U. Tel. Co. v. Houghton. 82 West. V. Tel. Co. v. Douchell. 28 Tex. Tex. 561. 1.-) 1.. R. A. liUn. 17 S. W. Civ. App. 23, 67 S. W. 159 ($1,250; 840. remittitur of $750 ordered). 592 TELEGRAPH AND TELEPHONE COMPANIES. [§ 615 § 615. Same continued — not excessive. Where a message announced the death of phiintift's sister, and by its being delayed he was prevented from attending her funeral and from being able to '"give comfort and consolation to his aged mother in her hour of great trouble," an award of $1,000 was considered not excessive.^^ It was held in another similar case, that $1,168 was not excessive compensation for the mental anguish suffered.'^*' The com- pany's negligence prevented plaintiff from being at the bedside of his dying brother and from attending his funeral, and $2,500 as actual damages for mental suffering were held not to be excessive."^ ^ It would be a difficult and useless undertaking to enumerate all the cases where damages for mental suffering were held not to be excessive. While a case having similar features involved may be used as a guide in determining whether the damages are excessive, yet on account of the circumstances attending each case being different in some particu- lar, a perfect and safe guide cannot be resorted to, but each particular case must be decided on its own merits. Other cases are cited in the note below where damages were held not excessive.'^ ^ °'West. U. Tel. Co. v. Rosentretter, ($1,500 including punitive damages); 80 Tex. 406, 16 S. W. 25. West. U. Tel. Co. v. Robinson, 97 Tenn. '"West. U. Tel. Co. v. Broesche, 72 G38, 37 S. W. 545; 34 L. R. A. 431n Tex. 654, 3 Am. St. Rep. 843. ($500). " Stuart V. West. U. Tel. Co., 66 Tex. Texas.— West. U. Tel. Co. v. Evans, 580, 18 S. W. 351, 59 Am. Rep. 623. 5 Tex. Civ. App. 55, 23 S. W. 998; ^' Alabama.— West. U. Tel. Co. v. West. U. Tel. Co. v. Karr, 5 Tex. Civ. Sneed, 115 Ala. 670, 22 So. 474 ($1,- App. 60, 24 S. W. 302 ($100) ; West. 500) ; West. U. Tel. Co. v. Crocker, 135 U. Tel. Co. v. Zane, 6 Tex. Civ. App. Ala. 492, 59 L. R. A. 398 ($225) ; West. 585 ($1,950); West. U.Tel. Co. v. U. Tel. Co. v. Cunningham, 99 Ala. Hill, 26 S. W. 252 ($500) ; West. U. 314, 14 So. 579 ($500.) Tel. Co. v. Porter, 26 S. W. 866 ($1,- 1 7idiana.— West. U. Tel. Co. v. Strat- 000) ; West. U. Tel. Co. v. Kensley, 8 emeier, 6 Ind. App. 125 ($500) ; West. Tex. Civ. App. 527, 28 S. W. 831 U. Tel. Co. V. Newhouse, 6 Ind. App. ($750) ; West. U. Tel. Co. v. O'Keef 442 ($400); West. U. Tel. Co. 29 S. W. 1137 ($1,000) ; West. U. Tel V. Cain, 14 Ind. App. 115 ($225). Co. v. Guest, 33 S. W. 281 ($450) Kentucky.— West. U. Tel. Co. v. West. U. Tel. Co. v. Russel, 12 Tex Fisher, 107 Ky. 513, 54 S. W. 830 Civ. App. 82, 33 S. W. 708 ($1,500) ($300); West. U. Tel. Co. v. Mcllvoy, West. U. Tel. Co. v. Johnson, 16 Tex 107 Ky. 633, 55 S. W. 428 ($1,000). Civ. App. 546, 41 S. W. 367 ($400) Tennessee.— West. U. Tel. Co. v. West. U. Tel. Co. v. Thompson, 18 Tex Frith, 105 Tenn. 167, 58 S. W. 118, Civ. App. 279, 44 S. W. 402 ($200) § 016] MEASURE OF DAMAGES. 593 § 616. Nominal damages. Under the rule of the common hiw, only actual damages could be recovered where an actual loss had been sustained, but it is now well settled that, where there is an infringement of a legal right, nominal damages may be awarded, although there is no evidence of actual damages having been sustained.^^ Damages are not always merely pecuniary, but an injury imports damages where a person is thereby deprived of his rights."^ Where the evidence shows that a person's legal rights have been violated, the claim to damages accrues; and the fact that the precise nature and extent of the damages is not capa- ble of being exactly ascertained, will not serve to divest him of his rights to recover,'^'' nor will such rule be affected by the fact that the damages are so small that they cannot be readily estimated.^^ In such cases, if the plaintiff has suffered some loss, but it is so small that the jury cannot ascertain the amount, but nevertheless renders a verdict for the defendant, the court may permit the plaintiff to have a verdict for nominal damages.'" The rule in these particulars, will not be affected by the fact that the plaintiff has been benefited by the wrong ; ''^ nor by the fact that the loss has been subsequently re- paired ; ''^ nor, that the action is brought in contract or in tort.*^ In actions against telegraph companies, the cost of sending the message, if it has been paid, is always recoverable, although no substantial West. U. Tel. Co. v. Trice, 48 S. W 770 ($1,000) ; West. U. Tel. Co. v Fatten, 55 S. W. 973 ($1,000) ; West U. Tel. Co. V. Norris, 25 Tex. Civ. App 43, 60 S. W. 982 ($1,000) ; West. U Tel. Co. V. Rice, 61 S. W. 327 ($750) West. U. Tel. Co. v. Griffin, 27 Tex Civ. App. 306, 65 S. W. 061, ($750 West. U. Tel. Co. v. James, 73 S. W 79 ($1,995); West. U. Tel. Co. v Hines, 22 Tex. Civ. App. 315, 54 S. W 627 ($780). "Stein V. Burden, 24 Ala. 130, 60 Am. Dec. 433; Thompson v. New Or- leans, etc., R. Co., M Miss. 315, 19 Am. Rep. 12; New York Rubber Co. v. Rothcry, 132 N. Y. 293, 30 X. E. 841. •28 Am. St. Rep. 575. T. & T.— 3S '*Ashby V. White. 2 Ld. Raym. 938 3 Ld. Raym. 320. •" Seaboard Mfg. Co. v. Woodson, 98 Ala. 378, 11 So. 733; Taylor v. Bradley. 39 N. Y. 129, 100 Am. Dec. 415. ••Glass V. Garber, 55 Ind. 336; Se- neca Road Co. V. Auburn, etc., R. Co.. 5 Hill. (X. Y.) 170. " Feize v. Thompson, 1 Taunt. 121. "Watts V. Weston, 62 Fed. 136, 10 C. C. A. 302; Williams v. BrowTi. 7il Iowa 643, 41 N. W. 377. "Dow V. Humbert, 91 U. S. 294, 2:? L. Ed. 368. *> Havens v. Hartford, etc., R. Co., 2S Conn. 69; Wild v. Orleans, 12 La. Ann. 16. 5'94 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 616 damages are proven, provided a breach of the company's duty is shown, but not othenvise.^^ There cannot be an infringement of the sender's legal rights unless the company is guilty of a breach of some of its duties, and it is error for the court to instruct the jury that the plaintiff is, in any event, entitled to recover the cost of sending the message, since this fact depends upon the proof of the negligence of the company.^^ ""West. U. Tel. Co. v. Lawson, 66 468; Thompson v. West. U. Tel. Co., Kan. 660, 72 Pac. 283; Kennon v. West. 106 N. C. 549, 11 S. E. 269. U. Tel. Co., 126 N. C. 232, 35 S. E. «= Thompson v. West. U. Tel. Co., 106 K. C. 549, 11 S. E. 269. CHAPTER XXVI. STATUTORY PENALTY. § 617. Object and purpose. 618. Construction of statutes — in general — penal. 619. Same continued — intention of statute — must not be defeated by construction. 620. A penalty — not damages — for person injured. 621. Who mantain suit. 622. Extraterritorial effect— not any. 623. Constitutionality of statutes. 624. Indiana statute. 625. Character and form of message — "futures." 626. Same continued — form — cipher telegrams. 627. Same continued — written on message blank — waiver of right. 628. Breach of duty — proof of. 629. Same continued — amount of proof. 630. Complaint and proof must fall under statute. 631. Complaint — allegations therein. 632. Actual damages — need not prove. 633. Same continued — does not bar action for damages. 634. Actions survive. 635. Connecting line — liable. 636. Defenses — office hours. 637. Same continued — free delivery limits. 638. Same continued — not under operation of statute — contribu- tory negligence. 639. Same continued — harmless errors. 640. Same continued — Sunday dispatches. 641. Stipulations — time for presenting claim — effect of. 642. Accord and satisfaction. 643. Prepayment of charges. 644. Repeal of statute — effect of. § 617. Object and purpose. We have already made a somewliat lengthy discussion in regard to the rights to recover from a telegraph company damages actually sus- tained as a result of errors negligently made in the transmission or delivery of a message concerning business transactions, and the in- ability to recover any other damages in the absence of proof of some loss. We have also discussed the right to recover damages from these (595) 506 TELEGRAPH AND TELEPHONE COMPANIES. \_^ 617 companies for mental suffering and angiiisli in consequence of a fail- ure to promptly deliver messages containing announcements of cer- tain affairs ; and the unsoundness of the doctrine upon which actions brought for this purpose were maintained; and we have elsewhere commented somewhat upon the inadequacy of the common-law reme- dies to recover damages for every wrong or failure of duty of these companies, on account of their peculiar nature ; and, also made some suggestions as to how this inadequacy could be and was to a certain extent overcome by statutes amending the common-law rule. So, we shall now discuss statutes of this nature which have been adopted in some of the states of the Union. On account of the inadequacy of the common-law remedy to enforce the duty of these companies, in every particular, with respect to the transmission and delivery of mes- sages — particularly in cases in which, from their nature, substantial damages are not recoverable — statutes have been adopted in many states, providing for the recovery of a fixed money penalty from these companies for a negligent failure to properly discharge their duty. The duty designed to be enforced by these statutes is threefold in its nature : first, to transmit messages tendered for that purpose wath the charges established by the rules of the company; second, to receive and transmit such messages with impartiality as to the order of transmission ; and third, to transmit and deliver such messages in good faith and with due diligence.^ § 618. Construction of statutes — in general — penal. The object of these statutes is to fix a penalty upon telegraph com- panies for a breach of duty which they owe to the public generally, and not to assess a certain fixed amount of damages for the non-per- formance of a contract to properly transmit a dispatch.- They, then, being in the nature of penal statutes, or enacted for the purpose of fixing a penalty on these companies for a breach of public duty, must be strictly construed. The word "penalty," means a fine or punish- ment imposed upon anyone for a violation of some duty which the wrongdoer is under obligations to perform, and all statutes which en- ^ Burnett v. West. U. Tel. Co., 39 Ark. 78, G S. W. 230; West. U. Tel. Mo. App. 607. Co. V. Pendleton, 95 Ind. 12, 48 Am. ' Fraiienthall v. West. U. Tel. Co., 50 Rep. 692. 1^ 619] STATUTORY PENALTY. 597 croach upon the personal or property rights of any person, operates in the nature of a punishment and must therefore be strictly con- strued.^ So, each statute must be considered separately in its own light, and only that which is expressly stated therein can be en- forced.^ It is not our purpose, however, to be understood as saying that the cause of action is made out altogether by one statute, but that only such construction can be placed on each, separately, as is expressly stated in it. It is often the case that one statute makes out the cause of action, while another imposes the penalty for the viola- tion of the first. To be more explicit in that which has been said, a statute which provides that, on failure to promptly transmit a mes- sage, the company shall be liable for a certain fixed penalty ; a recov- ery of the penalty could not be had, by showing that the company neg- ligently or incorrectly transmitted the message, or where it provides that the penalty shall lie imposed where there is a negligent transmis- sion, and the action is to recover the penalty on an oral message, or the failure to promptly deliver a written one, the penalty cannot be recovered ; neither can there be a recovery by the addressee where the ^^tatute provides that the sender shall maintain such suits; but the rule is otherwise, if it provides that the party aggrieved may recover. § 619. Same continued — intention of statute — must not be de- feated by construction. It is generally held, that these statutes must be strictly construed, yet that construction must not be placed on them which will defeat the manifest purpose of the legislature in enacting them.^ There are 'Pelliiuii V. Stcanibuat ^Messenger, ^Arkansas. — Fraucnthall v. Wost. U- 16 La. Ann. 99; Flint River Steamboat Tel. Co., .50 Ark. 78. Co. V. Foster. ."5 Ga. 194, 48 Am. Dec. California.— Thuru v. Alta Tel. Co., 248; Chalker v. Chalker, 1 Conn. 79. 15 Cal. 473. 6 Am. Dee. 20G; McAfee v. Southern Georf/ia. — Langley v. West. U. Tel. R. Co., 30 Miss. 009: Brady v. North Co., 87 Ga. 777. 13 S. E. 904; Green- western Ins. Co., 11 :\Iich. 451; Balti- hurn; v. West. U. Tel. Co., 89 Ga. 754, more, etc.. Tel. Co. v. Lovejoy. 48 Ark. 15 S. E. 651. 301. Indiana. — West. U. Tel. Co. v. Ax- *Connell v. West. U. Tel. Co., 110 tell, 69 Ind. 199; Hadley v. West. U- :Mo. 34, 20 L. R. A. 172, 38 Am. .St. Tel. Co., 115 Ind. 191; West. U. TeL Rep. 575. 22 S. W. 345. Co. v. Roberts, 89 Ind. 377; West. U. Tel. Co. V. Kilpatrick. 97 Ind. 42. 598 TELEGRAPH AND TELEPHONE COMPANIES. ['^ 619 different degrees of strictness to be placed on penal statutes;^ and it seems that, on account of the objects for which these were enacted, the most strict degree should not be insisted upon by the courts. It is the object in the construction of penal, as all other statutes, to ascer- tain the true legislative intent; and, while the courts will not apply such statute to cases which are not within the obvious meaning of the language employed by the legislature, even though the cases may be within the mischief intended to be remedied,'^ they will not, on the other hand, apply the rule of strict construction with such technicali- ties as to defeat the purpose for which the statute was enacted.* As said at first, the object of these statutes is to provide a remedy for the enforcement of duties and obligations which these companies owe to the public generally, and which are not recognized by the common- law remedies ; on account of this, and for the further fact that it has become absolutely necessary that some remedy should be provided for, in order that these companies may not become derelict in their duties toward the public, these statutes should not be construed in the strictest degree, and the purpose and intention of the legislature is that they shall not be.^ Thus, where a statute provides that on fail- ure of a telegraph company to correctly transmit and promptly de- liver all messages tendered to it for transmission, the latter will be liable to a penalty to the party aggrieved, a construction of this stat- ute in its strictest terms would mean that the message should have been delivered to the company in writing, and the same has been so Iowa.— Taylor v. West. U. Tel. Co., 'United States v. Hartwell, 6 Wall. 95 Iowa 740, 64 N. W. 660. (U. S.) 395; State v. McCrystol, 4.3 Mississippi.— Wi\km?i v. West. U. La. Ann. 907, 9 So. 922; State v. Arch- Tel. Co., 68 Miss. 6, 8 So. 678; Cum- er, 73 Md, 44. berland, etc., Tel. Co. v. Sanders, 35 ^Crosby v. Hawthorn, 25 Ala. 221; So. 653. Parkinson v. State, 14 Md. 184, 74 Am. South Dakota.— Kirhy v. West. U. Dec. 522; State v. Walsh, 43 Minn. Tel. Co., 4 S. Dak. 463. 444; Doggett v. State, 4 Conn. 61, 10 Georgia. — Moore v. West. U. Tel. Co., Am. Dec. 100; United States v. Wilt- 87 Ga. 613, .13 S. E. C39. Compare berger, 5 Wheat. (U. S.) 76. Horn V. West. U. Tel. Co., 88 Ga. 538, » See note 6. 15 S. E. 16. • West. U. Tel. Co. v. Wilson, 16 Am. Missouri. — Thompson v. West. U. & Eng. Corp. Cas. 259; West. U. Tel. Tel. Co., 32 Mo. App. 191. Co. v. Meredith, 8 Am. & Eng. Corp. Virginia.— West. U. Tel. Co. v. Pow- Cas. 54; West. U. Tel. Co. v. Pendle- ell, 94 Va. 278, 26 S. E. 829. ton, 95 Ind. 12, 48 Am. Rep. 692. <^ 621] STATUTORY PENALTY. 59^ held; ^" but the circiunstances of the case may be such as to give a less degree of strict construction, so as to warrant a recovery of the penalty, although the message was telephoned to the operator. ' ^ § 620. A penalty — not damages — for person injured. The penalty provided by these statutes is different from those im- posed for the commission of a crime. In these latter statutes, the wTong or crime is one committed more directly against the state, and for this reason the penalty should go to the state. In those statutes enacted for the express purpose of enforcing the duties which tele- graph companies owe to the public, the wrong inflicted is more of a personal injury, or one in which the injured party is more directly concerned, and, for this reason, the penalty is one to be recovered by him. ^2 It must be understood that the penalty is not damages, or a compensation to be recovered for the loss sustained by the injured person, but it is purely a penalty. It is imposed particularly as a punishment on the company for a breach of its duty, and to be an ob- ject lesson to others, and, at the same time, the injured person is pe- cuniarily benefited for the wrong, § 621. Who maintain suit. As will be seen in another part of this work, the sender under the English rule could only maintain an action against a telegraph com- pany for a breach of a contract of sending, since the privity of con- tract only existed between the sender and the company. This rule has not been followed in our states, but the sendee, under the Ameri- can rule, can sue as well the sender. ^=^ With respect to who shall maintain the action, under these statutes, the statutes themselves must be referred to in order to ascertain this fact. While the stat- utes are similar in nature, yet the wording of each is not always the same, and the least difference in the wording might cause quite a dif- ferent construction to be placed on each. Thus, some of these stat- " Cumberland, etc., Tel. Co. v. San- "West. U. Tel. Co. v. Pendleton, 05 ders, 35 So. G53; Wilkins v. West. U. Ind. 12. 48 Am. Rep. 697. Tel. Co., 68 Miss. 6, 8 So. 678. "West. U. Tel. Co. v. Pendleton, 95 "West. U. Tel. Co. v. Jones, 69 Miss. Ind. 12, 48 Am. Rep. 697. G58, 30 Am. St. Rep. 579. 13 So. 471. 600 TELEGRAPH AND TELEPHONE COMPANIES. [§ 621 utes provide that, on a failure of a prompt delivery, the sender of the message maj recover a certain penalty. It has been held, under These, that no one except the sender could maintain the action.^'* In other statutes, it is provided that any person, or any one injured by such failure of duty, may recover the penalty. Under these provis- ions, either the sender or the addressee may recover the penalty when tlie default is shown, ^^ It is on account of the strict construction placed on these statutes that these different rales are adhered to. If the statute fails altogether to provide by whom the action may hv. brought, it has been held that the rules applicable in an ordinary ac- tion for damages apply. ^^ § 622. Extraterritorial effect — not any. It is the general rule that w^hen a liability imposed by the statute of a state is in its nature a penalty, such liability cannot be enforced beyond the state in which the statute was enacted ; or, in other words, such statutes have no extraterritorial effect. As said, these statutes are penal and, independently of the constitutional question in this connection, cannot be enforced beyond the limits of the state enacting them.^'^ It is not meant by this, however, that these statutes can onlv »*Tel. Co. V, Brown, 108 Ind. 538; Missouri.— mxke v. West. U. Tel. Hadley v. West. U. Tel. Co., 115 Ind. Co., 96 Mo. App. 406, 70 S. W. 265, 2 191. L. E. A. 78n; Connell v. West. U. Tel. " West. U. Tel. Co. v. Allen, 66 Miss. Co., 108 Mo. 459, 18 S. W. 88.3. 549, 6 So. 461. Neto Yorfc.— Hearn v. West. U. Tel. « Hadley v. West. U. Tel. Co., 115 Co., 36 Misc. (N. Y.) 557. Ind. 191. Tennessee.— West. U. Tel. Co. v. Mel- " United States.— West. U. Tel. Co. Ion, 100 Tenn. 429. V. Texas, 105 U. S. 464, reversing West. In Indiana, the contract of sendin;L' U. Tel. Co. V. Pendleton, 95 Ind. 12, must have been made in that state: 48 Am. Rep. 692. Carnahan v. West. U.'Tel. Co., 89 Ind. Arkansas. — Little Rock, etc., Tel. 526, 46 Am. Rep. 175; Rogers v. West. Co. V. Davis, 41 Ark. 79. U. Tel. Co., 122 Ind. 395, 17 Am. St. Georgia.— West. U. Tel. Co. v. Mich- Rep. 373; West. U. Tel. Co. v. Reed, flson, 94 Ga. 436, 21 S. E. 169. 96 Ind. 195. And the breach must not Iowa. — Taylor v. West. U. Tel. Co., have occurred in another state: West. 95 Iowa 740, 64 N. W. 660. U. Tel. Co. v. Carter, 156 Ind. 531, 60 Mississippi. — Alexander v. W^est. U. X. E. 305, overruling West. U. Tel. Co. Tel. Co., 66 Miss. 161, 5 So. 397, 3 L. v. Pendleton, 95 Ind. 12, 48 Am. Rep. R. A. 71, 14 Am. St. Rep. 556. 093. <^ 622] STATUTORY PENALTV. 601 be enforced where the coiupauy has failed to discharge its duty with respect to the delivery of such messages as are transmitted wholly within the state; but if the message is sent from one state into an- other, and the wrong has been committed in the state of sending, the penalty may be recovered. ^^ It is held by some that the duty im- posed by these statutes is a continuous one, and is not one performed by the company by merely discharging its duty with respect to mes- sages transmitted within the state of this enactment. Judge Elliott said, while discussing this point : "The duty which the statute seeks to enforce is owing here in Indiana and not elsewhere; it was here that the contract was made which imposed the duty on the telegraph <>ompany, and it was here that the failure occurred, for the message was not transmitted, as the law commands, in good faith and with diligence and impartially. The duty which the company failed to perform was not a duty owing in Iowa, but was a duty owing in In- diana, where the parties executed the contract out of w-hich the duty arose. The duty of the company did not end at the state line ; it ex- tended throughout the whole scope of the undertaking and required the message to be transmitted and delivered in good faith and with reasonable diligence to the person to whom it was sent. The breach of duty, no matter where the specific act constituting it occurred, was a breach here and not elsewhere. The duty is a general and a con- tinuous one, and if not performed, irrespective of the place where the failure occuin-ed, is a breach of the duty at the place of the crea- tion." ^^ But this case has since been oven-uled*. It is held in Georgia that if the non-delivery to the sender was due to some do- fault or other cause arising beyond the limits of the state in which it was received for transmission, recovery could not be had.^^ In In- diana, the penalty cannot be recovered if the contract of sending was made in another state, nlthoufrh the default may have oceurred in that state.- ^ "West. U. Tel. Co. v. James, 90 Ga. * West. U. Tel. Co. v. Carter, 15(i 254, 16 S. E. 83, affirming 162 U. S. Ind. 531, 60 N. E. 305. 650; West. U. Tel. Co. v. Howell, 95 -""West. U. Tel. Co. v. Howell, 95 Ga. Ga. 194, 22 S. E. 286, 51 Am. St. Rep. 194, 51 Am. St. Rep. 68, 30 L. R. A. 68; Butner v. West. U. Tel. Co., 2 158, 22 S. E. 286. Okla. 235. -'Rogers v. West. U. Tel. Co.. 122 "West. U. Tel. Co. v. Ptiulleton, 95 Ind. 395, 17 Am. St. Rep. 373, 24 X. Ind. 12, 48 Am. Rep. 093. E. 157. 602 TELEGRAPH AND TELEPHONE COMPANIES. [^ 623 § 623. Constitutionality of statutes. The principal grounds upon which the constitutionality of these statutes have been attacked is, that to enforce such would be an in- terference with the exclusive power of Congress over interstate com- merce. One reason why it was claimed that they were in violation of the clause of the federal constitution wherein the control of inter- state commerce was vested in Congress was, that they applied only to teleg-raph companies and thereby denied these companies the equal protection of the law; but it has been held that while they apply to these companies, yet they apply equally to all companies of that class. ^" Another reason for claiming that they were in violation of the federal constitution with respect to interstate commerce was, that they impaired the obligation of the contract of sending, in that they made a different liability from that assumed in the contract ; but this reason, in so far as it applied to person other than the sender, has been held unfounded.^^ So, it is generally held, both by the state and the federal courts, that these statutes are not in conflict with the con- stitution of the United States, in so far as they interfere with Con- gTess in the control of interstate commerce. ^^ West. U. Tel. Co. v. Ferguson, 157 dom of commercial intercourse, or dis- Ind. 37, 60 N. E. 679; West. U. Tel. criminate in favor of the products of Co. V. Mellon, 100 Tenn. 429. Elliott, one state, or grant commercial rights J., while discussing the Indiana stat- to the citizens of some particular state ute,. said: "No discrimination is made and deny them to others, but we do in favor of any person, or in favor of maintain, that the sovereign state has any article of commerce, the freedom power to enact laws requiring persons, of commercial intercourse is not artificial or natural, doing business abridged, and no new duty or burden within its borders, to transact that is imposed upon the company. The business with fairness, diligence and statute secures to all alike the privi- impartiality. A statute operating up- lege of demanding that the duties of a on persons within the state declaring corporation be performed with dili- an existing duty, adding neither new gence, impartiality and good faith. It nor additional ones, usurps no fune- enforces an existing duty, and pro- tion of the Federal Congress, and in- vides a penalty, but it confines the fringes no constitutional provision:" duty to no class and denies the West. U. Tel. Co. v. Pendleton, 95 Ind. penalty to none. It is impossible to 12, 48 Am. Eep. 694. See also Sher- conceive the slightest restriction upon lock v. Ailing, 93 U. S. 99; County of commercial intercourse, or the faintest Mobile v. Kimball, 102 Id. 691. discrimination in favor of any person *' West. U. Tel. Co. v. James, 162 U. or thing. Granting then the lack of S. 650. power in the state to abridge the free- (^ 625] STATUTORY PENALTY. 603 § 624. Indiana statute. The constitutionality of the Indiana statute"^ was assailed, but the cotirt held that the statute was valid and constitutional, even when applied to messages sent to another state, and not violative of the United States constitution, giving to Congress the power to regulate commerce between the states, and that it was a valid exercise of the police power belonging exclusively to the state. On this point the court said: "The statute operates in favor of the sender of a mes- sage delivered to an office in this state, and upon a corporation repre- sented within our borders by its agents and officers. The parties are, therefore, within our jurisdiction. The duty which the statute assumes to enforce is one arising in Indiana, for it grows out of and is founded upon an undertaking entered into in this state. The par- ties and subject-matter being within our jurisdiction, they are sub- ject to our laws. Persons and property within the jurisdiction of a state are subject to the laws of that state."^^ § 625. Character and form of message — "futures." These statutes generally provide that, on failure to transmit or de- liver any message, the company will be liable to a certain penalty ; this means any and all messages irrespective of the form or character, provided they are not immoral, libelous or fraudulent. As it has been said elsewhere in this work, the object of these companies is not to perpetrate or assist in the perpetration of a crime, nor to do any act which would subject them to a civil action, and, of course, it fol- lows that they would not be under any obligation to accept a message for transmission which, to do so, would make them liable to a civil or criminal action. If, then, a message is tendered for transmission, the company may refuse to transmit it, where it would have this ef- fect, and still not be liable for the statutory penalty. It is not every message whose object is for an immoral or illegal purpose, or such as would sup])ort an action for damages against the company, that can be rejected by the company. Thus, where there is a message tendered for transmission which relates to transactions in "futures,'' the com- "Stat. 417G, Rev. Stat. 1781. =^ West. U. Tel. Co. v. Pendleton, 95 Iiul. 12. 48 Am. Rep. 094. 604 TELEGRAPH AND TELEPHONE COMPANIES. [§ 625 panj would be under obligations to exercise the same care and promptness that it would over any other message,-^ unless there should be a statute which would make it illegal for such messages to be transmitted. § 626. Same continued — form — cipher telegrams. As said, these statutes apply, with few exceptional cases, to all messages, and that whether they are intelligible or not. Messages are often written in cipher, the meaning of which is generally known only by the sender and the addressee. Where this is the case, the company, as we have elsewhere shown, may require the sender to in- form it of the nature of the 'message ; or, in other words, the sender should do this voluntarily in order that he may hold the company liable for any mishaps or losses sustained in its transmission. If the company has no information of the nature of the message, it would not be liable for all the consequences arising from a failure to transmit and deliver same. But, if the message should be written in cipher and accejDted by the company, for transmission, the latter would be liable for the statutory penalty, if the message was not sent at all, although the company may not have had knowledge of its pur- pose or contents.-^ While the company may have refused to accept such message, yet, on the acceptance of it, the duty was then as- sumed. It is the assumption of the duty, and the failure to perform same, and not the form of the message, that makes out the case for the statutory penalty. § 627. Same continued — written on message blank — waiver of right. One of the stipulations generally provided for by these companies is, that all messages must be written on the blank forms furnished by them. It is generally held by the courts that these stipulations are reasonable and are therefore enforcible. So, when a message is written on any paper other than these forms, the company's opera- tor may refuse to accept same, and, in doing so, he would not sub- ^'Gray v. West. U. Tel. Co., 87 Ga. ^ Gray v. West. U. Tel. Co., 87 Ga. 3,50, 14 L. Pv. A. 95, 13 S. E. .562, 27 350, 13 S. E. 562, 27 Am. St. Rep. 259, Am. St. Rep. 2.59. 14 L. R. A. 95. § 628] STATUTORY PEXAT/rV. 605 ject the company to the statutory penalty.-* If, however, the opera- tor accepts such message, the fact that it was not written on one of the company's bhmks will be no defense to an action to recover the penalty. -'^ It is presumed, in such cases, that the company has waived the right acquired under the stipulation. But in order to hold the company, even under these state of facts, the operator must have known that the writing was a message. Thus, where the mes- sage was written on a piece of memorandum paper and handed to the operator by the sender's servant in such a casual way as not to indi- cate that it was a message for transmission, this fact will be a good defense under the statute.^^ In this instance, there would not be a presumption of a waiver of the right, unless the operator knew it was a message. § 628. Breach of duty — proof of. Where the plaintiff brings an action against a telegraph company to recover the statutory penalty imposed for a failure to promptly transmit or deliver a message, he must prove the breach of such duty in order to recover.^ ^ The statute being penal, the case must not only be one covered by such, and under which it is accurately described, but it must also be proved as alleged in the bill of complaint. In ac- tions brought against these companies to recover damages as a result of their negligence, a prima facie case is made out when it is shown that the message was accepted by the company and that it was de- layed in transmission or delivery an unreasonable time; or, that the message as received by the addressee was not the same as that deliv- ered to the company. The same rule in this respect as in other cases against these companies applies in actions brought to recover the stat- utory penalty, except that it is not necessary to prove any loss. ^ Kirby v. West. U. Tel. Co., 7 S. D. Tel. Co. v. Dozier, 07 Miss. 288, 7 So. 323, overruling 4 S. Dak. 105. 40 Am. 325. Eep. 765. "West. U. Tel. Co. v. Wilson, lOS =• West. U. Tel. Co. v. Jones, 69 Miss. Ind. 308 ; West. U. Tel. Co. v. Ward, 058, 30 Am. St. Rep. 579, 13 So. 471. 23 Ind. 377, 85 Am. Dec. 462; West. »West. U. Tel. Co. v. Liddell, 68 U. Tel. Co. v. Liddell, 68 Miss. 1. 8 Miss. 1, 8 So. 510. See also West. U. So. 510; Kirby v. West. U. Tel. Co., 7 S. Dak. 623. 606 TELEGRAPH AND TELEPHONE COMPANIES. [<§ 629 § 629. Same continued — amount of proof. It has been held in some cases that the plaintiff must prove more than mere negligence on the part of the company, by showing that it acted in bad faith or willfully.^^ It will be found, however, in the examination of the cases which hold such a rule, that there are only particular instances when this rule will apply. Thus, when the com- plaint is that the company unduly postponed the message in order to send others, or that the message was not accepted or would not be ac- cepted, it must be shown that the acts of the company were willful or in bad faith. The contributory negligence of the sender in failing to give a sufficiently definite address, although it might be such as would afford a good ground for a defense to an action for failure to deliver, is not a defense where the action is based on the willful par- tiality of the company.^^ But if the action is to recover the penalty for failure to transmit or deliver a message, the proof of ordinary negligence on the part of the company is sufficient.^* § 630. Complaint and proof must fall under statute. As has been elsewhere said, the cause of complaint and proof there- for must fall within the statute. Thus, a statute providing that the telegraph company shall transmit and deliver messages with "due diligence," and prescribing a penalty for a failure to comply with the terms of the statute, relates to the time within which messages must be transmitted and delivered, and not to the accuracy and cor-, rectness in sending and transcribing them, and the company is not liable, by virtue of the terms of the statute, for the penalty pre- scribed merely because it makes a verbal, though material, mistake and error in transcribing a message received and transmitted.^^ A ^West. U. Tel. Co. v. Swain, 109 ^* Burnett v. West. U. Tel. Co., 39 Ind. 405; West. U. Tel. Co. v. Brown, Mo. App. 599; Little Rock, etc., Tel. 108 Ind. 538 ; West. U. Tel. Co. v. Co. v. Davis, 41 Ark. 79 ; West. U. Tel. Steele, 108 Ind. 163; Hadley v. West. Co. v. Lindley, 89 Ga. 484, 15 S. E. U. Tel. Co., 115 Ind. 191; West. U. Tel. 636; West. U. Tel. Co. v. Scircle, 3 Co. V. Jones, 116 Ind. 361; Weaver v. Ind. 227. Grand Rapids, etc., R. Co., 107 Mich. ^ Wilkins v. West. U. Tel. Co., 68 300. See also Wichelman v. West. U. Miss. 6, 8 So. 678; West. U. Tel. Co. Tel. Co., 30 Misc. (N. Y.) 450. v. Rountree, 92 Ga. 611, 18 S. E. 979. "=West. U. Tel. Co. v. Ferguson, 157 44 Am. St. Rep. 93; West. U. Tel. Co. Ind. 37, 60 N. E. 679. v. Pallotta, 81 Miss. 216. <^ 631] STATUTORY PENALTY. 607 case is not made out by showing that the company negligently failed to deliver a message, when the statute, under which the action is brought, imposes a penalty on these companies for negligence or re- fusal to receive and transmit messages promptly.^® A refusal to transmit, for which the statute provides a penalty, is not shown by proof merely of a refusal to deliver after the message has been trans- mitted.^^ ISTor is the intent of the statute complied with so as to justify a recovery of the penalty where it appears that the company made a bona fide effort to transmit the message and acted with impar- tiality, although the message was lost, and this, too, no matter how culpable may have been the conduct of the company by reason of which the loss occurred.^^ Where the statute imposes a penalty for the incorrect transmission of messages, a recovery cannot be had on the proof of a mere delay in transmission.^® § 631. Complaint — allegations therein. To recover the statutory penalty, the complaint must aver facts which bring the case presented by it within both the letter and spirit of the statute.^" Hence, the penalty cannot be recovered under the statute unless the complaint alleges and the proof shows that the de- fendant was engaged in business of telegraphing for the public.^' But it need not also appear that the company was engaged in tele- graphing for hire.^2 j^ a suit before a justice of the peace to recover the penalty, it was held that the complaint must aver and the evi- dence must prove that the sender of the message had paid or tendered the usual charges at the time of sending it. "Under the provisions of ^'Connell v. West. U. Tel. Co., IIG ™ West. U. Tel. Co. v. McLaurin, 70 Mo. 34, 20 L. R. A. 172, 38 Am. St. Miss. 26, 13 So. 36; West. U. Tel. Co. Eep. 575. V. McCormick. 27 So. (Miss.) GOG. " Brooks V. West. U. Tel. Co., 56 Ark. *» West. U. Tel. Co. v. Kinney, 4 N. 224; Dubley v. West. U. Tel. Co., 54 W. (Ind.) 512; West. U. Tel. Co. v. Mo. App. 391 ; Eixke v. West. U. Tel. Axtell, 69 Ind. 199. Co., 96 Mo. App. 406. Compare West. "West. U. Tel. Co. v. Trissal, 9S U. Tel. Co. V. Gouger, 84 Ind. 106. Ind. 566; West. U. Tel. Co. v. Fergu- »Frauenthal v. West. U. Tel. Co., 50 son, 57 Ind. 499; West. U. Tel. Co. v. Ark. 78; Baltimore, etc., Tel. Co. v. Adams, 87 Ind. 598. State, 6 S. W. 513; Weaver v. Grand "West. U. Tel. Co. v. Scircle, 103 Rapids, etc.. B. Co., 107 Mich. 300, 65 Ind. 227. N. W. 225. 608 TELEGRAPH AND TELEPHONE COMPANIES. ["§> 631 the statute . . . it is not every telegraph company which is sub- ject to such penalty for such failure, but it is a telegraph company M'hich has ^a line of wire wholly or partly in this state,' that is made amenable to the penalty prescribed by our statute for the failure to transmit a message, 'on payment or tender of the usual charge V "'*^ It was held that the averment in the complaint that defendant ''was engaged in the business of transmitting telegraphic messages for hire," was insufficient as being equivalent to an averment that the defendant was "engaged in telegraphing for the public," as required by the statute.^"' The court said: "A statute so highly penal must be construed strictly. The party claiming under it must bring his case clearly within the letter and spirit of the act. Keeping in mind the main purpose of the statute, its highly penal nature, and the rule of strict construction, we cannot hold that the words 'engaged in the business of transmitting telegraphic messages for hire' are equiva- lent to the words 'engaged in telegraphing for the public' ... A court cannot create a penalty by construction, but must avoid it by construction, unless it is brought within the letter and the necessary meaning of the act creating it." '^^ But the complaint need not nega- tive the exceptions in the proviso, nor any facts of excuse ; these must come from the defense. The exculpatory matter set forth in the stat- ute need not be mentioned in the complaint, although available for the defense.^^ 'No actual damages need to be alleged and proved to recover the penalty under the statute. "The statute fixes the amount or penalty to be recovered, whether the actual damages be great or small." ^'^ A different rule prevailed under the common law, where it was necessary to allege and prove actual damages, otherwise nomi- nal damages could only be recovered.^^ "West. U. Tel. Co. v. Ferguson, 57 Meek, 49 Ind. 53; West. U. Tel. Co. v. Ind. 495. Buchanan, 35 Ind. 425, Am. Rep. « West. U. Tel. Co. v. Axtell, 69 Ind. 744. 199. "Little Rock, etc., Tel. Co. v. Da- « Id. vis, 41 Ark. 79. " West. U. Tel. Co. v. Gouger, 84 « 1 Sutherland on Damages, § 10 : Ind. 17G; West. U. Tel. Co. v. Ward, 23 Hubbard v. West. U. Tel. Co., 32 Wis. Ind. 377; West. U. Tel. Co. v. Lewel- 505. ing, 58 Ind. 367 ; West. U.- Tel. Co. v. <§> 633 J STATUTORY PKXALTY. 609 § 632. Actual damages — need not prove. The penalty imposed by these statutes, as said, is a punishment in- flicted for a violation of the company's duties, and is not in any sense a compensation as liquidated damages to the injured person. It has no reference to the actual loss sustained by him who sues for the recovery of the penalty, but is a means of punishing the company for its negligent aets and is only recoverable by the person injured by the negligence committed. As it is not damages, or in any sense such, it is not necessary to show that it is to be recovered as damages ; nor is it necessary to prove that any actual damages have been sus- tained in order to recover the penalty. While it is not necessary to prove actual damages, yet if such is shown it will not affect the right to recover the ])enalty.'*^ When the negligence has been sufficiently shown, the company will be liable for the penalty, although no loss has been sustained. The object of these statutes is to enforce the du- ties and obligations which these companies ow.e to the public gener- ally; and when it is shown that they have failed to properly and promptly discharge them, the penalty may be recovered. § 633. Same continued — does not bar action for damages. An action brought to recover the statutory j)enalty is based on a separate and distinct ground from that brought for the recovery of damages. One is maintainable on the ground that the company has failed to discharge its duty toward the public by neglect, refusal or failure as to time and the other is brought to recover damages sus- tained as a result of the negligence in transmission, by lx>ing inac- curate, or that the message is unreasonably delayed in delivery.^'' *» Little Rock, etc.. Tel. Co. v. Davis. v. Postal Tel. Cable Co., 76 iMiss. 278. 41 Ark. 79; West. U. Tel. Co. v. Cobbs. 24 So. 535. 47 Ark. 344, 1 S. W. 558, 58 Am. Rep. ■=" West. U. Tel. Co. v. Lindley, S9 Ga. 75G; West. U. Tel. Co. v. Pendleton, 95 484. 15 S. E. 636; West. U. Tel. Co. Ind. 12, 48 Am. Rep. 098; West. U. v. Pendleton, 95 Ind. 12, 48 Am. Rep. Tel. Co. V. Adams, 87 Ind. 598, 48 Am. (192 : Hadley v. West. U. Tel. Co., 115 Rep. 776; West. U. Tel. Co. v. Fergu- Ind. 191; Carnalian v. West. U. Tel. son. 157 Ind. 37; West. U. Tel. Co. v. Co., 89 Ind. 526, 46 Am. Rep. 175; Allen. C6 Miss. 549, 6 So. 461 ; Jacobs Wilkins v. West. U. Tel. Co., 68 Miss. (i. S So. 678. See also Stafford v. T & T— 39 ^^^'**- ^- ^'^^- ^°' "^ ^^^- ^^^' 610 TELEGKAPII AND TELEPHONE COMPANIES. \_^ 633 One is criminal in nature bnt civil in form, and the other is civil both in nature and in form. Thej, being founded on different grounds, may be instituted separately ; and an action in one will not bar an action in the other. While these two actions are sep- arate and distinct and are based on different grounds, yet the same act of the company may be the cause of both of the actions. For instance, if the statute provides that on failure to prompt- ly deliver a message the company will be liable for a certain penalty, under this, if the company has failed to discharge its duty, it will be liable for the penalty; and if the plaintiff has sus- tained a loss in consequence of such delay, he may also recover the actual loss sustained thereby. As will be seen, the delay, in this in- stance, is the cause of both actions, but one is founded upon the statu- tory remedy for the enforcement of its duty with respect to the promptness as to time in the delivery and the other is founded on the fact of its violating its common-law duties or obligations and those assumed when the rights and benefits of a corporation were acquired. In some jurisdictions it is held that an action for the recovery of the penalty and a suit to recover the damages sustained as a consequence of such act, may be asserted in one suit.^^ It has been held that, under these statutes, parties who have sigTied a dispatch jointly may bring a joint suit to recover, the penalty for a failure to transmit the same.^^ § 634. Actions survive. In actions brought to recover the statutory penalty, the recovery is not based upon any injuiy to the person of the plaintiff. It is an ac- tion to enforce a right created by statute and does not belong to the class of actions where redress is sought for a personal injury. As is known, all actions for personal injuries die with the person, unless the rule is otherwise changed by statute. In these cases, brought for the recovery of the statutory penalty, the right of action does not die with the person injured by such act of the company, but survive.^'"' "West. U. Tel. Co. v. MoLaurin, 70 =nYest. U. Tol. Co. v. HnflF, 3 West. Miss. 26, 13 So. 30; West. U. Tel. Co. Rep. (Ind.) 376. V. McCorniick, 27 So. (Miss.) 606. '=■ West. U. Tel. Co. v. Scircle, 10 Am & En^'. Corp. Cas. (Ind.) 010. <^ 635] STATUTORY PENALTY. 611 Under the common-law practice, the remedy in such cases as these would be an action of debt.^'' There may be statutes, however, which provide that these actions shall not survive ; when this is the case, of course, there can be no recovery after the death of the person in- jured by the act of the company. § 635. Connecting line — liable. As it has been seen at other places, it is the duty of the connecting line to receive all messages which may be tendered it by an initial line. The same care and diligence must be exercised by this line as is imposed on the first line, and any damages arising as a result of the company's failure to properly discharge these duties, will sub- ject it to liability therefor. These statutes which place a penalty on telegraph companies for a failure to perform properly the duties which they owe to the public, apply to all telegraph companies doing a public business, and it matters not wdth whom they do business. As said, they may either transact business with respect to the transmis- sion of news, cither with a private person, or with another company. It is not only a privilege, but it is a duty for them to transact such business, where the messages are such as may be sent without sub- jecting them to an action. So, it has been held that these statutory penalties may be enforced against connecting telegraph lines where the initial company would be liable for the same act.^^ The claim by the connecting line that it acted merely as the agent for the first company, is no defense to an action to recover the penalty.^'' But in such cases, if the statute provides that the sender shall maintain the suit, it seems that the initial line must be the party to recover the penalty;^''' in other words, the original sender of the message cannot recover the penalty from the connecting line.^^ But if the statute provides that the penalty may be recovered either by the sender or "1 Chitt. PI. 125; Corporation v. ''" Conyers v. Postal Tel. Cable Co., Eaton, 4 Cranch. C. 0. 352; United 02 Ga. 619, 44 Am. St. Rep. 100. 19 States V. Co]t, 1 Pet. C. C. 145; Bo- S. E. 253. gart V. City, 1 Ind. 38. "' United States Tel. Co. v. West. U. '"'United States Tel. Co. v. West. U. Tel. Co., 56 Barb. (N. Y.) 46. Tel. Co., 56 Barb. (X. Y.) 46; People «Tum v. Alta Tel. Co., 15 Cal. 473. V. West. U. Tel. Co., 1G6 111. 15, 36 L. R. A. 637. 612 TELEGRAPH AXD TELEPHO^^E COMPAXIES. [<§> 635 the addressee, the hitter may maintain a suit to recover same.^^ The various statutes enacted in the several states are so different in word- ing that each should be referred to in order that the proper construc- tion may be placed on each. § 636. Defenses — office hours. Telegraph companies may set up the same defenses in actions brought to recover the statutory penalty as are available in ordinary actions to recover damages resulting from their negligence. ^"^ It has been seen that they may regulate their office hours and provide that all messages shall be tendered for transmission within such hours, both at the receiving and terminal offices. As a result of such regu- lations, they are not liable to deliver the message immediately on its receipt if the terminal office should be closed ; it would only be liable for such delay when the message was transmitted during the office hours of both the receiving and tenninal offices. The same rule ap- plies notwithstanding the fact that the action was brought to recover the statutory penalty. For the reason that one is maintainable un- der a common-law remedy and the other under a statutory remedy in which a penalty is imposed on the wrongdoer, does not change the rule that the same defense is available under each case. When the action is brought under the same statute, that is, one providing for a penalty when the message is not promptly transmitted, it may be shown that the delay was caused by a derangement of its lines du^ to an unavoidable casualty and that the message was sent within a reasonable time after the difficulty was removed. § 637. Same continued — free delivery limits. Another regulation of telegraph companies is, that they will de- liver all messages within a certain radius of the terminal office free of any extra charge. It is the duty, as has been said, for them to deliver all messages within a reasonable distance from their central offices, but they may prescribe the distance, provided it be reasonable. "Conyers v. Postal Tel. Cablo Co., ^^West. U. Tel. Co. v. Harding, 103 tt2 Ga. 619. 19 S. E. 256, 44 Am. St. Jnd. 505; Given v. West. U. Tel. Co., Eep. 100. 24 Fed. 119. <^ 638] STATUTOKY PENALTY. 613 This being a reasonable regulation for these companies to enforce, it does not become their duty to deliver a message beyond the free-de- livery limit, unless it has become additionally compensated for such services. If they should fail to make such delivery, they ^vould not be liable for any damages resulting from the failure to deliver same. There are some statutes which provide that, on failure to deliver a message, or where it has been unreasonably delayed in delivery, a penalty may be recovered. In an action to recover this penalty, the defense that the addressee resides beyond the free-delivery limit, may be set up as a good defense for not delivering the message.''^ § 638. Same continued — not under operation of statute — contri- butory negligence. It is hardly necessary to enter into any lengthy discussion of the available defenses in actions brought to recover the statutory penalty imposed on these companies for failing to discharge their public du- ties, since the same defense may be used in these cases as may be set up in ordinaiy actions brought to recover damages for some negligent act, and which have been discussed heretofore. But having entered into the subject, we shall say a few things about each defense. As has been said, the cause of the action must be one covered by the statute ; and should the action not be covered by such statute, or if the proof fails to sustain an action which is brought thereunder, this may be used as a defense in an action to recover the penalty. Penal- ties are not given as a matter of favor, and one who claims a penalty must bring himself fully and clearly within the law. The plaintiff in the case must not be guilty of any act which contributed directly to the cause of complaint, and if the company should show that he was gnilty of contributory negligence, the penalty cannot be recov- ered. Thus, where the action is brought under a statute which pro- vides for the recovery of a penalty in case a message is not promptly delivered, it may be shown as a defense that the plaintiff failed to give the proper address,^- or that he failed to give the Christian 'MYest. U. Tel. Co. v. Lindley, 62 ~West. U. Tel. Co. v. Patrick, 92 Ind. 371. See also Horn v. West. U. Ga. GOT, 90 Am. St. Rep. 90, IS S. E. Tel. Co.. 88 Ga. 538, 15 S. E. 16. 980. 61i TELEGRAPH AXD TELEPHONE COMPANIES. [^ 638 name, street, and number of the sendee in a city of 12,000 inhabi- tants.^^ § 639. Same continued — harmless errors. ^Vhel•e the error made in transmission is harmless and is due to mere inadvertence the penalty cannot be recovered.'''* Thus, under the jMississippi statute, the penalty is recoverable where there is a failure to "transmit correctly," yet it has been held that if there is no hann caused by the error, the penalty cannot be recovered. As was said by Judge Campbell, while rendering an opinion on this point: ''Can it be supposed that for changing my signature or ad- dress from Campbell to Camel, or Campel or Cambelle, or Camwell, according to the form of writing it sometimes meets with, in a mes- sage sent by me or to me and promptly delivered, and accomplishing its purpose, and doing no harm, the penalty would be incurred ? To so hold would impute to the legislature a spirit of injustice and cruelty that would seriously reflect on its attempt to legislate in this matter for the public interest. To limit the operation of the section as we do, is to secure all by it that will subserve the interest of the public, which is the object of the law." ^^ § 640. Same continued — Sunday dispatches. It is held, in the Indiana and Missouri courts, that the penalty cannot be recovered by one who delivers his message for transmission on Sunday. In so holding, the court in one case, said : "A penalty cannot be recovered for failure to perform an illegal contract. The statute does not apply to contracts which are without legal force The evident intention of the legislature was to secure the perform- ance of such contracts as imposed binding obligations upon the tele- graj)h companies. The statute is a highly penal one, and Ave cannot extend its operation by a liberal construction. ''^ We certainlv cannot 8MVest. U. Tel. Co. v. McDaniel, 1 West. U. Tel. Co., 94 Ga. 434, 21 S. E. West. Rep. (Ind.) 273. 518. «*West. U. Tel. Co. v. Clark, 71 Miss. «= West. U. Tel. Co. v. Clark, 71 Miss. 157, 14 So. 452. See also West. U. 157, 14 So. 452. Tel. Co. V. Rountree, 92 Ga. 611, 18 S. «* West. U. Tel. Co. v. Axtell, 69 Ind. E. 979, 44 Am. St. Rep. 93; Wolf v. 191. <^ 641] STATUTORY PENALTY. 615 bring within its provisions a case, such as the present, where there is, in legal effect, no contract at all. Courts cannot declare, as a mat- ter of law, that the business of telegraphing is a work of necessity. There are, doubtless, many cases in which the sending and delivery of a message would be a work of necessity within the meaning of our statute. But we cannot judicially say that all contracts for trans- mission of telegraphic messages are to be deemed within the statutory exception. Whether the contract is within the exception must be de- termined, as a question of fact, from the evidence in each particular case." ^"^ A different ruling obtains in Mississippi, where it was held that the penalty could be recovered, although the message was delivered on Sunday for transmission, regardless of the fact of its being or not being about a matter of necessity, within the exception of the Sunday law.*'^ § 641. Stipulations — time for presenting claim — effect of. Telegraph companies may adopt and enforce stipulations wherein it is provided that all claims must be presented within a certain time, otherwise the plaintiff will be barred from recovery. The rea- son for this rule has already been discussed. Where the language of these stipulations make them applicable to actions for penalties, it is as effective in such actions as for the recovery of damages,^^ and the same reasons why they should be enforced with respect to the re- covery of damages are applicable for the recovery of the statutory penalty. It has been held, with few exceptions, that a stipulation re- quiring "all claims for damages" to be presented within a certain time embraces a claim for the penalty."^^ Judge Elliotte, in an opin- ion on this point, said: "We think that in order to carry into effect the evident intention of the parties, and to give the clause the mean- er ij U. Tel. Co., 42 Mo. App. 546 ; Kirby v. "SMcLaiirin v. West. U. Tel. Co., 70 West. U. Tel. Co., 7 S. Dak. G23; West. Miss. 26, 13 So. 36. U. Tel. Co. v. Powell, 94 Va. 268, 26 «»West. U. Tel. Co. v. Yopst, 118 Ind. S. E. S2S. 248; West. U. Tel. Co. v. Jones, 95 '"West. U. Tel. Co. v. Jones, 95 Ind. Ind. 228, 48 Am. Rep. 713; Albers v. 228, 48 Am. Rep. 713. Compare West. West. U. Tel. Co., 98 Iowa 51, 66 N. U. Tel. Co. v. Cobbs, 47 Ark. 344, 58 W. 1040 ; INIontgomery v. West. U. Tel. Am. Rep. 756. See also West. U. Tel. Co., 56 Mo. App. 192; Barrett v. West. Co. v. James, 90 Ga. 254, 16 S. E. 83. 616 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 641 ing which the context shows it should have, it must be held that all claims which will confer a right to a recovery in money for a breach of contract or of duty, must be presented within sixty days. In a broad sense the w^ord 'damages' means that which is assessed in the plaintiff's favor as the amount of his recovery, and that statutory penalty is in this sense 'damages.' ""^ The correctness of this holding has been denied in other cases.'''^ In Georgia, these stipulations arc held void so far as they apply to the claim for the statutory penalty.'^^ After giving considerable studj^ to the subject, we have arrived at the conclusion that the proper view in which the matter should be con- sidered is, that where these stipulations provide that all claims for damages shall be presented within a certain time, they embrace claims for statutory penalties as well as claims for actual damages sustained. § 642. Accord and satisfaction. It is a general rule that where there is an agreement to satisfy all claims which may be pending and an execution of such agreement, this fact will bar all actions afterward brought to recover such claims, unless there was fraud of some kind perpetrated. The agreement must be made in good faith and cover all the claims demanded, and the same must be satisfied according to the agreement. As has been said, the penalty provided for in these statutes is not an award of liquidated damages, but is a punishment imposed on these companies for a violation of some of the duties which they owe to the public gen- erally, and is recoverable only by the person against whom the duties are particularly violated. There can be an accord and satisfaction executed in such a manner as to bar the plaintiff from recovering the penalty. Thus, if the company should voluntarily tender or pay to the plaintiff the price paid for transmission and such damages as may have been sustained by the act of the company, and it also appears "West. U. Tel. Co. v. Jones, 95 Ind. "Mattis v. West. U. Tel. Co., 94 Ga. 228, 48 Am. Rep. 713. 338, 21 S. E. 564, 1039, 47 Am. St. "West. U. Tel. Co. v. Cobbs, 47 Rep. 167; Meadows v. West. U. Tel. Ark. 344, 1 S. W. 558, 58 Am. Rep. Co., 96 Ga. 788, 22 S. E. 926. 756. See also West. U. Tel. Co. v. James, 90 Ga. 254, 16 S. E. 83. § 644] STATUTORY PENALTY. 617 that these payments were made in full settlement for all claims which he may have had against the company, he will be barred from after- ward recovering the statutory penalty. But unless the fact appears that the voluntary payment of the damages which may have been sus- tained, and the price for transmission, were paid by way of accord and satisfaction, he will not be barred in afterward recovering the penalty."^"* § 643. Prepayment of charges. Some of the statutes which impose a penalty for the violation of these companies' duties, expressly state that the charges for trans- mission of the messages must be prepayed ; when this is the case there can be no recovery of the penalty when it is shown that the charges have not been paid."^ If the message was sent without charges be- cause of the sender's connection with the company, or for other rea- sons, the penalty is not recoverable, although the message -was marked '•prepaid." '" Where the sender tenders the amount of the charges and then withdraws them, observing that the addressee ought to pay the charges, the tender amounts to nothing and the penalty is not re- coverable.'^^ But if the message is paid for, the fact that the operator returns the money to the person paying and substitutes a free or a "collect" message for the prepaid one without the sender's knowledge, the company will be liable for the penalty.'^ ^ § 644. Repeal of statute — effect of. The general rule is that the repeal of a statute prescribing a pen- alty in a civil action takes away the right of recovery ,'^^ whether an "West. U. Tel. Co. v. Taylor, 84 Ga. '^This is under tiie Georgia statute: 419, 8 L. R. A. 189; West.'u. Tel. Co. West. U. Tel. Co. v. Eyels, 94 Ga. 336, V. Moss, 93 Ga. 494, 21 S. E. 63; West. 21 S. E. 573. U. Tel. Co. V. Brightwell, 94 Ga. 434. "West. U. Tel. Co. v. Power, 93 Ga. 21 S. E. 518; West. U. Tel. Co. v. Buch- 543, 21 S. E. 51. anan, 35 Ind. 429, 9 Am. Rep. 744. "West. U. Tel. Co. v. :\Io3s. 93 Ga. "West. U. Tel. Co. v. jMossler, 95 494, 21 S. E. 63. Ind. 32; West. U. Tel. Co. v. Ferguson, ■» Pope v. Lewis. 4 Ala. 487; Victory 57 Ind. 495; Longby v. West. U. Tel. Webb Printing Co. v. Bucher, 26 Hun Co., 88 Ga. 777. 15 S. E. 291; Wood v. (N. Y.) 48; Wood v. Kennedy, 19 Ind. West. U. Tel. Co.. 59 Mo. App. 236. 08; Hunt v. Jennings, 5 Blackf. (Ind.) 618 TELEGRAPH AXD TELEPHONE COMPANIES. [<§, 644 action has been begun ^^ or not;^^ since tbere is no vested right in the penalty entitling its actual recovery by final judgment.^" The same rule applies to statutes which impose a penalty on telegraph companies for failing to perform the duties which they owe to the public ; ^^ but, in Indiana, the right to recover an accrued penalty for the delaying of a telegram is by special provision of the statute saved to the person injured by the delay, notwithstanding the repeal of the statute prescribing it.^* In some cases, where the right to recover a penalty is destroyed by the repeal of the statute giving it, there may still be a recovery for the violation of the statute on common-law grounds. Thus, where a statute prohibits an act, and a violation of its provisions is such an act of negligence as, on common-law princi- ples, subjects the offender to a civil action for damages on account of the loss or injury thereby caused, the repeal of the statute, while it destroys the right to recover the penalty, does not take way or impair a right of action which has already accrued by reason of such negli- gence.^^ Applying this rule to those statutes which we have been dis- cussing, the repeal of the statute will not impair the right to recover the actual damages sustained by reason of the negligent act of the company. 195, 33 Am. Dec. 465; Welsh v. Wads- ^^ Com. v. Welsh, 2 Dana.(Ky.) 330; worth, 30 Conn. 149, 79 Am. Dec. 239; Bank v. State, 1 Sten. (Ala.) 347. Gregory v. German Bank, 3 Colo. 332, '^Hadley v. West. U. Tel. Co., 21 Am. 25 Am. Rep. 760; Musgrove v. Vicks- & Eng. Corp. Cas. (Ind.) 72. burg, etc., R. Co., 50 Miss. 677. '^West. U. Tel. Co. v. Brown, 14 Am. ^'Bay City, etc., R. Co. v. Austin, 21 & Eng. Corp. Cas. (Ind.) 139. Mich. 390; Van Dyck v. McQuad. 86 ^ Gmj v. Mobile Trade Co., 55 Ala. N. Y. 38; Road v. Chicago, etc., R. Co., 387, 28 Am. Rep. 729; German v. Mc- 43 Wis. 147. Ardle, 67 Hun (N. Y.) 484; Vander- "Comm. V. Standard Oil Co., 101 Pa. kar v. Rensselaer, etc., R. Co., 13 Barb. St. 119; Smith v. Banker, 3 How. Pr. (N. Y.) 393. (N. Y.) 141. CHAPTER XXVII. TAXATION. § 645. Introduction. 646. Power of state to tax. 647. How assessments may be made. 648. Methods of taxation. 649. Classification — discretion of legislature. 650. The same must be paid when properly assessed. 651. Discrimination. 652. Lien of assessment. 653. Interstate commerce — obstruction of. 654. Property of telegraph and telephone companies used in In- terstate commerce — subject to state taxes. 655. Taxation on capital stock in proportion to length of line in state. 656. Mileage basis of valuation. 657. Assessment of telegraph lines for taxation — New York state. 658. License tax — cannot be imposed. 659. Distinction between property tax and privilege tax. 660. Excise tax. 661. Taxation on gross receipts — interstate business. 662. Same on message. 663. Municipal tax — compensation — use of streets. 664. City license tax on telegraph companies. 665. Special franchise taxes. 666. Where rights of being a corporation are derived from the United States. 667. Interest when payment of taxes is delayed. 668. Taxes of telephone companies. § 645. Introduction. We propose to discuss, in this chapter, the right to tax telegraph and telephone companies; and, in treating the subject, we shall dis- cuss the rights of the several states to make such imposition, then the rights as derived imder the federal constitution. These rights might be more appropriately discussed under two separate chapters: but as the subject of taxation has been more thoroughly discussed in a general way by more able text-AATiters, we shall be brief in our treat- ment of the subject — applying the law thereunder, particularly to telegraph and telephone companies — and embrace the entire subject (619) 620 TELEGB^iPH AXD TELEPHONE COMPANIES. ["^ 645 under one chapter. Telegraph and telephone companies occupy the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods ; ^ and while the nature of the business of these companies is quite different, yet the relation which each bears toward commerce is the same, and the law with respect to taxation is applicable to both. The cases against telegraph and tele- phone companies, with respect to taxation, are not so numerous as those which have been maintained against common carriers of goods ; and for this reason, we shall, in many instances, refer the reader to such as may have been brought against the latter companies, where the same questions are involved. § 646. Power of state to tax. It is a sovereign power of the state to tax property of every de- scription belonging to telegTaph and telephone companies, and over purely domestic or interstate telegraph and telephone companies the power of the state is supreme ; - but over those engaged in interstate commerce, the power of the state is necessarily abridged by the com- merce clause of the federal constitution. The property of these cam- panies engaged in interstate commerce, which is not used in its busi- ness of conducting commerce between the states, is, of course, subject to taxation by the state to the same extent and in the same manner as the same property of natural persons or other corporations.^ For in- stance, if these companies are the owners of real property — such as houses and lots — which is not used in connection with their business as a carrier of interstate messages, this property is subject to state taxation to the same extent as if it belonged to an individual, and the power to tax is not affected by the clause in the federal constitution. So it is seen that the federal constitution exerts a very important in- fluence upon the subject of taxation, and for this reason we shall at- ' West. U. Tel. Co. v. Texas, 105 U. West. U. Tel. Co. v. Texas, 105 U. S. S. 460; Pensacola Tel. Co. v. West. U. 460; Postal Tel. Cable Co. v. Adams, Tel. Co., 96 U. S. 1; Postal Tel. Co. v. 71 Miss. 555, 42 Am. St. Rep. 483, 14 Puchmond, 99 Va. 102, 37 S. E. 789, 86 So. 36. Am. St. Rep. 881. ^ Leloup v. Port of Mobile, 127 U. - West. U. Tel. Co. v. Massachusetts, S. 640, 8 S. Ct. Rep. 1380. 145 U. S. 530, 12 S. Ct. Rep. 856; <§ 648] TAXATION. 621 tempt to discuss the subject separately, and take up, first, the power of the state to tax. § 647. How assessments may be made. The legislature of the state, except where it is limited by the con- stitution, is invested with the supreme power over the subject of tax- ation. The taxes are levied by the legislature, and the mode of as- sessing property must be prescribed by statute."* The best method of taxing the property of telegraph and telephone companies, where it forms a part of its lines, is to regard it as a unit and assess the property as an entity, since any other method would divide or cut up the property into fragmentary parts and lead to confusion and injus- tice. Some of the courts have held that this is the only method which can be exercised by the legislature f but it seems that where the legis- lature is not restricted by constitutional provisions, it ought to be the sole judge of the method which should be pursued in such mat- ters.^ § 648. Methods of taxation. The four principal methods of taxation are: (1) on the capital stock; (2) on the corporate property; (3) on the franchise; (4) on the business done by the corporation." As was said, the legislature has the power to levy taxes and prescribe the method by which the * Wisconsin Cent. R. v. Taylor Co., 52 ' Worth v. Wilmington, etc., Co., 89 Wis. 37, 8 X. W\ 883; State v. Central N. C. 291, 45 Am. Rep. 679; City of etc., Co., 21 Nev. 260, 30 Pac. G89: New Orleans v. Kaufman, 29 La. Ann. North Missouri, etc., Co. v. Mag\ure. 283. 29 Am. Rep. 328: Pittsburg, etc.. 102 U. S. 472; Cooly Court. Lim. (5 R. Co. v. State, 49 Ohio St. 189, 16 Ed.) 637; :Meriwether v. Garrett, 102 L. R. A. 380, 30 N. E. 435; West. U. U. S. 472. Tel. Co. v. Massachusetts, 125 U. S. ^Applegate v. Erust, 3 Bush 648, 96 530, 8 S. Ct. Rep. 961, 33 Fed. Am. Dec. 272. See, also, Graham v. 129; Union Pac. R. Co. v. Pen- Mt. Sterling Coal Co., 14 Bush 425; iston, 18 Wall (U. S.) 5; Thompson Franklin Co. v. Xashville, etc., Co., 12 v. Pac. R. Co., 9 Wall. (U. S.) 579: Lea 521. West. U. Tel. Co. v. Lieb, 76 111. 172. •Wilson V. Weber, 96 111. 454; State See also Postal Tel. Cable Co. v. Bar- V. I. C. R. Co., 27 111. 64, 79 Am. Dec. wood, 37 111. App. 105. 396; Sanganiore, etc.. Co. v. Morgan, 14 111. 163. 56 Am. Dec. 497. 622 TELEGKAPH AKD TELEPHOXE COMPANIES. [<^ 648 assessments shall be made. Tliis power is supreme so far as the property subject to taxation is exclusivelv within the control of the jurisdiction of the states; and where a method is prescribed by stat- ute for the assessment of the taxes, none other can be pursued.^ While the courts may declare a statute invalid where it conflicts with the constitution, they cannot supervise or control legislative discretion, nor can they dictate the policy to be pursued.^ § 649. Classification — discretion of legislature. • The discretionary powers of the legislature are very broad and comprehensive, and no matter how unjustly they may be exercised, the courts cannot, so long as the constitutional powers are not trans- cended, interfere with them. The question always is as to whether it has these powers ; and if it be clear that the same may be exercised, the courts cannot alter, amend or annul the statute; otherwise they may. Different methods may be prescribed, under the legislative dis- cretionary powers, for assessing corporations of different classes, and a statute which provides different methods for this purpose, cannot be successfully assailed upon the ground that it provides a method for assessing telegraph and telephone companies different from that for assessing other corporations.^^ Classification of different corpora- tions may be made, and if these companies are put in a separate and distinct class from others, a method of assessing them may be pre- scribed different from that prescribed in the assessment of other cor- porations of a different class. But if the constitution provides that taxes shall be equal and uniform, the mode of assessing these com- panies must be uniform ; that is, one company of the same class and character cannot be assessed differently from another of precisely the same class and character. ^^ * Louisville, etc., Co. v. Warren Coun- 374 ; Kentucky Railroad Tax Cas. 92 ty, 5 Bush 243. U. S. 6G3; Missouri, etc., Co. v. Mack- " Legal Tender Cases, 12 Wall 457; oy, 127 U. S. 205, 8 S. Ct. Rep. 1161; State V. Hayworth, 122 Ind. 462, 7 L. West. U. Tel. Co. v. Poe, 64 Fed. 9, R. A. 240, 23 N. E. 946; City of Du- overruling West. U. Tel. Co. v. Poe, buque v. Chicago, etc., Co., 47 Iowa 61 Fed. 449. 196. " Worth v. Whittington, etc., Co., 89 "St. Louis, etc., Co. v. Worthey, 52 N. C. 291, 45 Am. Rep. 679; New Ark. 529, 13 S. W. 254, 7 L. R. A. Orleans v. Kaufman, 29 La. Ann. 283, "^ G51] TAXATION. 623 § 650. The same must be paid when properly assessed. The taxes may be laid upon these corporations directly, and when this is the case, it is upon the legal entity and must be paid out of the revenues of said corporations ; or it may be laid on the shares of stock in the hands of the shareliolders and not on the corporations strictly speaking. However, when laid on either, it must be paid, provided it is authorized and enforcible.^- But if the taxes are laid on the corporation and not on the shares, a failure of payment will be a breach of duty of the corporation,^^ and, vice versa, if laid on the shares a failure to pay same will be a breach of duty of the share- holders. The reason why this difference should be considered is, that there are statutes generally enacted providing for a penalty to be imposed upon the one guilty of a culpable breach of this duty, and unless it is kno"\vn upon whom the taxes are laid, it could not be as- certained as to who should suffer the penalty. § 651. Discrimination. Where the state constitution provides that taxes shall be equal and uniform, no material and unjust discrimination can be made against the property of telegTaph and telephone companies;^"* independent of any federal rule or regiilation. These requirements are violated by imposing a heavier burden upon these companies than that im- posed upon the property of railroad companies or other corporations, or that on the property of natuarl persons. The word "person" in our constitution, comprehends corporations; and when it provides that the property of all persons shall be equal and uniform, it is meant by this that the property of corporations must be taxed equally and uniformly, not only with respect to that belonging to other cor- porations of the same or different class, but also with respect to that belonging to private persons. The burden, as we understand it, must 29 Am. Rep. 328; Pittsburg, etc., R. etc., 90 Ky. 409, 14 S. ^Y. 408, 9 L. R. Co. V. State, 49 Ohio St. 189, 30 N. E. A. 629n. 435. 16 L. R. A. 380. "Whittaker v. Brooks, 90 Kr. 68, 13 "Bailey v. Atlantic, etc.. Co., 3 Dill. S. W. 355; Gallispie v. Gaston, 67 Tex. 22: Barnsley v. St. Louis, etc.. R. Co., 599, 4 S. W. 248. 3 Dill. 13; Greenwood v. Freight Co., "Chicago, etc., Co. v. Board, 54 Kan. 105 U. S. 13; Louisville v. Louisville, 781, 39 Pac. 1039. 624 TELEGRAPH AND TELEPHONE COMPANIES. [§ 651 be palpably and materially greater than that imposed on other prop- erty, since in all systems of taxation there is some inequality. ^^ § 652. Lien of assessment. The statutes which provide the method of assessing property gen- erally provide that the property shall be subject to a lien thereon for its taxes. The tax lien owes its existence wholly to the statute, and is not created by implication. The extent, duration and the property subject to such lien must be determined by the statute creating it.^^ These statutes generally provide that the lien for taxes shall have a priority over all other claims against the property. As it has been said, the property of telegraph and telephone companies may be as- sessed as a unit. When this method is prescribed by statute, the conclusion is that the lien for taxes assessed attaches to the entire property. ^'^ This fact, however, may be controlled by statutory pro- visions, but if there is no other method prescribed by the statute, the entire property will be subject to the lien for taxes. It must be un- derstood, however, that only such property of the company as is within the jurisdiction of the state is subject to such lien, since the provisions of any statute can have no effect beyond the boundaries of the state creating it. § 653. Interstate commerce — obstruction of. A state unquestionably has the right to tax all property over which it has jurisdiction and which is not used in interstate commerce, but when it attempts to tax that property used exclusively in carrying on commerce between the states, an infringement of the commerce clause of the federal constitution is then made. While this is the rule, yet it is very difficult in applying it to every particular case. The powers of the state to tax property cannot be exercised so as to ob- " Cumberland Marine, etc., Co. v. '"Maricopa, etc., H. Co. v. Arizona, Portland, 37 Me. 444; New York, etc., 156 U. S. 347, 15 Sup. Ct. R. 391. R. Co. V. Sabin, 26 Pa. St. 242 ; Osborn " Bailey v. Feequa, 24 Miss. 497 ; V. New York, etc., 40 Conn. 491; Han- Anderson v. State, 23 Miss. 459; Par- nibal, etc., Co. v. Shocklett, 30 Mo. ker v. Smith, 10 S. Car. 226; Tompkins 5,50. V. Little Rock, etc., R. Co., 18 Fed. 344; Garrettson v. Scofield, 44 Iowa 37. § 653] TxVXATlOX. 625 struct commorce between the states, or to defeat or restrain the power of the federal Congress to regulate commerce.'^ The power, as may have been seen, to tax property used in interstate commerce is within " In the caso of Brown v. ;Mai viand. 12 Wheat. 419, Chief Justice Marshall, speaking of the taxing power, said: "We admit this power to be sacred, but cannot admit that it may be so used as to obstruct the free exercise of power given Congress. We cannot ad- mit that it may be used so as to ob- struct or defeat the power to regulate commerce. It has been ob- served that the power remaining with the states may be exercised as to come in conflict with those vested in Con- gress. When this happens, that which is not supreme must yield to that which is supreme. This great and uni- versal truth is inseparable from the na- ture of things, and the constitution has applied it to the often interfering powers of the general and state gov- ernments, as vital principles of perpet- ual operation. It results, necessarily, from this principle, that the taxing power of the state miist have some limits." In the State Freight Tax Case, 15 Wall. 232, Justice Wayne expressed the same general doctrine in this lan- guage: "While on the other hand it is of the utmost importance that the states should possess the power to raise revenue for all the purposes of a state government, by any means and in the manner not inconsistent with the powers which the people of the state have conferred upon the general government, it is equally important that the domain of the latter should be preserved from invasion and that the state legislation should be sustained which defeats the avowed purpose of the federal constitution, or which as- sumes to regulate or control subjects committed by the constitution exclu- sively to the regulation of Congress." See also Osborn v. State, 33 Fla. 162, 25 L. R. A. 120, 30 Am. St. Rep. 99, 14 So. 588. The fact that a telephone company has extended its line through difl'crent states and is engaged in inter- state commerce, will not relieve it from the operation of state statute, upon business conducted wholly within that state, nor justify its refusal of a tel- ephone and the best telephonic connec- tions and facilities to persons doing business in such state, on the terms prescribed by such statute: Central I'. Tel. Co. V. Falley, 118 Ind. 194, 19 N. E. 604, 10 Am. St. Rep. 114. Messages sent over such telephones are commerce between the states, and cannot be pro- hibited by injunction in either state against ])crsons or corporations en- gaged in sending such messages be- cause they do not pay the taxes as- sessed against them by such state: In re Pennsylvania Telephone Company, 48 X. J. Eq. 91, 27 Am. St. Rep. 462. 20 Atl. 846. A state statute making it the duty of cverj' telegraph and telephone company to deliver with promptness every mes- sage received to the person to whom it is addressed, if the regulation of the company require such delivery, or to forward it promptly as directed, and providing a penalty for every failure to deliver or forward such message as promptly as practicable, such penalty to be paid to the person sending the message, or to whom it is addressed, as imposing a burden upon, or as a regulation of, interstate commerce, when applied to the failure of an in- terstate telegraph company to deliver a message in that state sent from an- T. & T.— 40 626 TELEGRAPH AXD TELEPHONE COMPANIES. l^ 653 the exclusive control of CongTess, and if there is a state tax which so operates as to regulate or, control commerce between the states there is an invasion of the domain of the federal government. -^^ So, it follows that if a state tax operates so as to obstruct such commerce, other state and delivered in the former state: West. U. Tel. Co. v. Tyler, 90 Va. 297, 18 S. E. 280, 44 Am. St. Rep. 910; Gray v. Tel. Co., 108 Tenn. 39, 64 S. W. 1063, 91 Am. St. Rep. 706. But see Marshall v. West. U. Tel. Co., 79 Miss. 154, 27 So. 614, 89 Am. St. Rep. 585. They may enact laws sub- jecting telegraph companies to penal- ties for acts of negligence occurring en- tirely within the limits of that state, although such acts may be committed in dealing with messages to be trans- mitted to points in other states: West. U. Tel. Co. V. Howell, 95 Ga. 194, 51 Am. St. Rep. 68, 22 S. E. 286. A statute prohibiting all persons from engaging in the business of transmitting money to any racetrack or other place, to be there bet on any horse-race trial of speed, skill, or en- durance, etc., whether within or with- out the state, and also from keeping any place in which such business is permitted or carried on, is valid and not unconstitutional as a regulation of interstate commerce as applied to the agent of the telegraph company who is engaged in such business, and transmits money to another state by telegraph to be there bet upon the re- sult of horse-races: State v. Harbour- na, 70 Conn. 484, 40 Atl. 179, 66 Am. St. Rep. 126; Lacey v. Palmer, 93 Va. 159, 57 Am. St. Rep. 795, 24 S. E. 930. And statutes providing the time in which suits are to be brought against telegraph companies for losses occur- ring in failing to transmit or deliver messages promptly are not unconstitu- tional when applied to interstate com- merce. Burgess v. West. U. Tel. Co., 92 Tex. 125, 46 S. W. 794, 71 Am. St. Rep. 833. 1" San Francisco v. West. U. Tel. Co., 39 Am. & Eng. Corp. Gas. (Colo.) 601; Pensacola Tel. Co. v. West. U. Tel. Co., 90 U. S. 1 ; West. U. Tel. Co. v. Texas, 105 U. S. 400. A revenue law providing that, at a certain time in each year, the manag- ing officer of "any telegraph company, working, operating or controlling any telegraph line in this state," shall "pay to the treasurer a tax equal to one dollar per mile for the line of poles and first wire, and fifty cents per mile for each additional wire" imposed a tax on the business, not on the property, of the companies afTected, and those companies are agencies of interstate commerce, the law is invalid as being an attempted exercise of a power be- longing exclusively to the federal leg- islature: Com. V. Smith, 92 Ky. 38, 17 S. W^ 187, 36 Am. St. Rep. 578. But a state tax imposed upon telegraph companies operating within the state, in lieu of all other taxes, as a privi- lege tax, its amount being graduated according to the amount and value of the property measured by miles, if rea- sonable in amount, and especially if less than the ad valorem state tax is valid and not an interference with in- terstate commerce when imposed upon a foreign telegraph company operating its lines in and across the state, al- though such company is engaged in sending interstate messages: Postal Tel., etc., Co. v. Adams, 71 Miss. 555, 14 So. 36, 42 Am. St. Rep. 476; Postal Tel. Co. v. Richmond, 99 Va. 102, 37 S. E. 789, 86 Am. St. Rep. 877. § 054] TAXATION. 627 the statute imposing such tax is invalid, since no state can obstruct or hinder interstate commerce. The general principle in regard to thi^ subject is easily imderstood, but it is very difficult to apply it to the different cases, and it is well to say that each case must be considered in its own light in order to a-cortnin ns to whether the principles are applicable thereto. § 654. Property of telegraph and telephone companies used in interstate commerce — subject to state taxes. When property is used in interstate commerce, this fact does not exonerate it from state taxes.-"^ The property, having its situs within the state imposing the taxes, may be taxed by the state although it is used exclusively for interstate commerce, but the business of in- terstate commerce itself cannot be burdened with such taxes.- ^ "Its ^oWest. U. Tel. Co. v. Texas, 105 U. S. 4G0; West. U. Tel. Co. v. Atty.-Gen., 125 U. S. 530, 8 Sup. Ct. R. 961; Le- loup V. Mobile, 127 U. S. 640, 8 Sup. Ct. R. 1380; Postal Tel. Cable Co. v. Adams, 71 Miss. 555, 42 Am. St. Rep. 476, 14 So. 36. In West. U. Tel. Co. v. Massachu- setts, 145 U. S. 530, the court, said: "While the state could not interfere by any specific statute to a corporation from placing its lines along their post roads or stop the use of them after they were placed there, nevertlieless the company receiving the benefits of the laws of the state for the protection of its property and its rights is liable to be taxed upon its real and personal property as any other person would be. It never could have been intended by the Congress of the United States, in conferring upon a corporation of one state the authority to enter the terri- tory of another state, and erect its poles and lines therein, to establish the proposition that such a company owed no obedience to the laws of the state into which it thus entered, and was un- der no obligation to pay its fair pro- portion of tlie taxes necessary to its support." In another case the court, said : "The Western Union Telegraph Compa- ny, having accepted restrictions and obligations of this provision by Congress, occupies in Texas the position of an instrument of for- eign and interstate commerce, and of a government agent for the transmis- sion of messages on public business. Its property in the state is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupa- tion and business:" West. U. Tel. Co. V. Texas, 105 U. S. 460. See also West. U. Tel. Co. V. Massachusetts, 127 U. S. 530, 8 S. Ct. Rep. 1297. -* Pullman Palace Car. Co. v. Penn- sylvania, 141 U. S. 18, 11 S. Ct. Rep. 876; Dubuque v. I. C. R. Co., 39 Iowa 56; West. U. Tel. Co. v. Taggart, 141 Ind. 281, 40 N. E. 1051, 60 L. R. A. G71n; Osborne v. State, 33 Fla. 162, 14 So. 588, 25 L. R. A. 120, 39 Am. St. Rep. 99; Postal Tel. Cable Co. v. Rich- mond, 99 Va. 102. 37 S. E. 789, 86 Am. St. Rep. 877. 62S TELEGRAPH AND TELEPHONE COMPANIES. [§ 654 property in the state is subject to taxation the same as other property ; and it may undoubtedly be taxed in a proper way on account of its occupation and its business." ^- The exemption of interstate and foreign commerce from state regulation does not prevent the state from taxing the property of those engaged in such commerce located within the state, as the property of other citizens is taxed, nor from regulating matters of local concern which may incidentally affect commerce.^^ Thus, a statute is held valid which authorizes the taxa- tion by several towns of the state, of the portions of telegi-aph lines in such towns, including the interest on the value of land occupied by the line, all poles, insulators, wires and apparatus, although such lines may run into other states.^^ And the fact that the company has paid a privilege tax, does not release it from liability for taxes as- sessed on its property, such as its poles, wires and other instru- ments.-^ § 655. Taxation on capital stock in proportion to length of line in state. It has been held b}- courts of last resort that the taxing officers may take into consideration the lines of wires extending into and through other states, in determining the value of the entire line.-*^ A Massa- chusetts statute, ^'^ provided that every telegraph company owning n line in the state should be taxed on such proportion of the whole value of its capital stock as the length of its line in the state bears to the whole length of its line everywhere, after deducting the value of any property owned by it subject to local taxation in the cities and towu'^ "West. U. Tel. Co. v. Massachusetts, .357; People v. Dolan, 120 X. Y. KiC. 12.5 U. S. 350, 33 Fed. 129, 141 U. 12 L. R. A. 251. S. 40, 11 S. Ct. Rep. 889; Taylor v. =MVest. U. Tel. Co. v. State, 9 Baxt. Secor, 92 U. S. 575; West. U. Tel. (Tenn.) 509, 40 Am. Rep. 99. Co. V. State, 9 Baxt. (Tenn.) 509, 40 ^nVest. U. Tel. Co. v. Attorney-Gen- Am. Rep. 99; Postal Tel. Cable Co. v. eral, 125 U. S. 530, 8 Sup. Ct. R. 961: Adams, 71 Miss. 555, 14 So. 36, 42 Am. Pittsburg, etc.. Co. v. Backers, 154 U. St. Rep. 476. S. 421, 14 Sup. Ct. Fv. 1114; Columbus. ^^Leloup V. Mobile, 127 U. S. 040, etc., R. Co. v. Wright, I.'jI U. S. 470. 8 S. Ct. Rep. 1380, affirming West. U. 14 Sup. Ct. R. 390; West. U. Tel. Co. Tel. Co. V. Massachusetts, 125 U. S. v. Massachusetts, 125 U. S. 530, 8 Sup. 530, 8 S. Ct. Rep. 961. Ct. R. 961. =* People V. Tierney, 57 Hun (N. Y.) =' Chapter 13, § 35. § G57] TAXATiox. 629 of the state. It was held, that such tax was not in violation of the in- terstate commeree clause of the constitution. In rendering an opinion on this statute, the court said: "The statute . . . intended to gov- < rn tlic taxation of all corporations doing business within its terri- tory, whether organized under its own laws or under those of some other state ; and the rule adopted to ascertain the amount of the cap- ital engaged in that business within its boundaries on which the tax should be assessed, is not an unfair or unjust one, and the details of the method by which this was determined have not exceeded the fair range of legislative discretion." -^ § 656. Mileage basis of valuation. It has also been decided that the taxing officers may make a valua- tion upon the mileage basis, although the property may be used for interstate commerce. Thus, a state privilege tax of a certain amount per mile of wires operating within the state, imposed on all telegraph companies therein operating, in lieu of all other state, county and municipal taxes, and amounting to less than the ordinary ad valorem tax, is substantially a mere tax on property, to which a foreign cor- poration operating within the state is subject, notwithstanding it is engaged in interstate commerce.-^ But a general tax, imposed upon a telegraph company, affects its entire business, interstate as well as domestic or internal, and is unconstitutional. So, there is a distinc- tion between such cases when the taxes are imposed upon the busi- ness of interstate commerce itself and those which may be laid upon the property within the state employed in such business.^^ § 657. Assessment of telegraph lines for taxation — New York state. A statute '^^ in Xew York provides that telegraph lines shall be as- sessed ^'in the manner provided by law for the assessment of lands," =*West. U. Tel. Co. v. Massachusetts, Grand Trunk, etc., Co.. 142 U. S. 217, 141 U. S. 40, 11 S. Ct. Rep. 889. 12 Sup. Ct. R. 121. ^West. U. Tel. Co. v. Ma.ssachusetts, ^ Leloup v. Port of Mobile, 127 U. 125 U. S. 530, 8 Sup. Ct. R. 961; Pull- S. 640. 8 S. Ct. Rep. 1380. man, etc., Co. v. Pennsylvania, 141 U. " La^YS 1SS6, ch. 659. S. 18, 11 Sup. Ct. R. 87G: Maine v. 630 TELEGRAPH AISTD TELEPHONE COMPANIES. [§ 657 and that the Avord "line" shall include ''the interest in the land on which the poles stand, the right or license to erect such poles on land, and all poles, arms, insulators, wires, apparatus, instruments, or other things connected with or used as a part of such line." It is held that, in making the assessment, the property is not to he regarded as a whole, nor as a complete telegraph line in operation, but that the true value is obtained by taking the cost of production of poles, wires and other apparatus, which are in their nature personalty, and adding thereto the value of the company's interest in the land on which the poles stand, and the right to erect the poles thereon. 2- In the same case it is held that in arriving at the value of the interest in the land on which the poles stand and of the right to erect such poles, it is to be considered that so far as the line is erected upon the highway, the only interest that the company has is a mere license, revocable at the will of the legislature, of which license any other company may avail itself. The expense which the company incurred in obtaining the interest is the correct criterion by which to judge of its value.^^ § 658. License tax — cannot be imposed. A license tax is a tax imposed as a condition of permitting busi- ness to be conducted within the state imposing such tax, and is there- fore a tax upon interstate commerce, and for this reason is invalid. Thus, where a telegraph company is carrying on the business of trans- mitting messages between the different states, and has accepted and is acting under the telegraph laws passed by Congress,^* no state, within which it sees fit to establish an office, can impose upon it a license tax, or require it to take out a license for the transaction of such business.^ ^ Such tax is not a tax upon the property of these '== People V. Dolan, 126 N. Y. 166, 12 of two hundred and twenty-five dollars L. K. A. 251. on every telegraph company in the city. ^ Id. The agent of the company vi'as fined '"'* July 24, 1866. for non-payment of the tax. In an ac- ^Leloup V. Mobile, 127 U. S. 640, tion to recover the amount of the fine, S S. Ct. Rep. 1.380. The Western Un- it was held, reversing the decision of ion Telegraph Company established an the state supreme court, that such tax office in the city of ]\Iobile and was re- affected the entire business of the com- quired to pay a license tax under a pany interstate as well as domestic and city ordinance imposing an annual tax was constitutional. The state court ^ 658] TAXATIOX. 631 companies, nor is it the exaction of a fee for the privilege of becom- ing a corporation. If, however, the license tax is only imposed on "each and every person or company engaging in the business of send- ing and receiving telegi-aphic messages to and from points within the state . . . and keeping an office or place of business" therein, relied mainly on the case of Osborne V. Mobile, 16 Wall. (U. S.) 479, which held that an ordinance of the city of Mobile was not unconstitutional, which required every express company or rail- road company doing business there, and having a business extending beyond the limits of the state, to pay an annual tax of five hundred dollars ; if the bus- iness was confined within the limits of the state, a tax of one hundred dol- lars; if confined within the city, of fif- ty dollars. The decision of the state court, however, was reversed. A license tax imposed by a city upon telegraph companies in the following terms: "Telegraph companies each, for business done exclusively within the city of Charleston, and not including any business done to or from points without the state, and not including any business done for the government of the United States, its officers or agents, $500," is not invalid as applied to a company partly engaged in trans- mitting interstate messages, and which has accepted the provisions of the Act of July 24, ISGG, and thereby become an agency of the United States, 56 Fed. 419; affirming Postal Tel. Ca- ble Co. V. City Council of Charleston, 153 U. S. 692, 14 Sup. Ct. R. 1049. A contention that a telegraph company seeking to enjoin collection of the tax is not within the scope of the ordinance because it in fact does no business "ex- clusively within the city," and that its city offices are merely initial points for sending messages to points outside the city, cannot be considered, for if the state has power to tax business done within the limit, the exercise of that power cannot be corrected by the federal court. A similar tax was sustained in West. Union Telegraph Company ( Neb. ) , 58 N. W. 415. The ordinance levying the tax was as follows: "Section 1. That there is hereby levied a license tax on each and every occupation and business within the limits of this city, in this section hereinafter enumerated, to raise a revenue thereby in the several dif- erent sums of the several different bus- nesses and occupations, respect- tively, as follows: No. 1. The sum of one hundred dollars per year on the business and occupation of receiving messages in this city from persons in this city and transmitting the same by telegraph from this city within this state to persons and places within this state, and receiving in this city mes- sages by telegraph transmitted with- in this state from persons and places in this state to persons within this city and delivering the same to persons in this city, excepting the receipt, trans- mission and delivery of any such mes- sage to and from any department, agency, or agent of the United States and excepting the receipt, transmission and delivery of any such message are inter-state com- nierco: the business and occu- pation of receiving, transmitting and delivering of the messages herein ex- cepted is not taxed hereby." The court held the following propositions: 1. State and municipal authorities are powerless to impose a tax upon mes- sages to or from other states, since 632 TELEGKAPII A^^D TELEPIIOA'^E C0:MPANIES, \_^ 658 the rule would be otherwise."'^ In this case, the license tax may be enforced without interfering with interstate commerce or the rights of the general government secured to it under the act of Congress.^' So, it has been held that an annual charge of five dollars per pole upon the poles of a telegraph company already established, under an ex- press provision by ordinance imposed by a municipality as a '^'con- sideration for the privilege," is not a tax, either on property or as a license; nor is it an exercise of the police power, as it involves no consideration of public order, health, morals, or convenience, and can not therefore be sustained,-^^ although it may be enforced if the ordi- nance imposing it is a police regulation. ^^ § 659. Distinction between property tax and privilege tax. As it has been seen, a state may impose a tax upon property within the state, although it nuiy be used for interstate commerce, but a privilege tax, as said, is not a property tax. Whether the tax is laid upon property or imposed as a condition or privilege of conduct- ing business within the state, is a question to be determined from the operation and practical effect of the statute and not from its mere such a tax would be iu conflict with etc., 52 La. Ann. 1082, 78 Am. St. that clause of the Federal Constitvition Rep. 387, 27 So. 590. which gives to Congress the exclusive =® West. U. Tel. Co. v. Philadelphia, power to regulate commerce among 21 Am. & Eng. Corp. Cas. (Pa.) 40. the several states. 2. Where a tele- The power of a municipality to graph company is engaged in both in- charge license fees to railway compa- terstate and intrastate business, an or- nies, telegraph and telephone compa- dinance levying an occupation tax on nies, and other public institutions, that portion of such business which is cannot be questioned, so long as such carried on wholly within the state is license is a police regulation, and not repugnant to section 8, article — , tends to accomplish the object sought. of the Constitution of the United See, on this subject, Mayor of Mobile States since it in no way interferes v. Yuille, 3 Ala. 137; Chicago Packing with, or regulates, interstate commerce. & Provision Co. v. Chicago, 88 111. ^'^Leloup V. .Mobile, 127 U. S. 640, 8 221; State v. Herod, 29 Iowa 123; S. Ct. Rep. 1380; Postal Tel. Cable Co. Boston v. Schaffer, 26 Mass. (9 Pick.) V. Charleston, 153 U. S. 692, 14 Sup. 415; Van Bachen v. People, 40 Mich. Ct. R. 1049; West. U. Tel. Co. v. 258; State v. Cassidy, 22 Minn. 312; Freemont (Neb.), 58 N. W. 415. New York City v. Second Ave. R. Co.. ^'Leloup v. Mobile, 127 U. S. 040, 32 N. Y. 261; May v. Cincinnati, 1 8 S. Ct. Rep. 1380. Ohio St. 268; Munn v. Illinois, 94 U. =«New Orleans v. Great South. Tel., S. 113, 24 L. Ed. 77. § 659] TAXATION. 633 foi-m.^^ The distinction between a privilege tax and property tax is a subtle one, and it is not by any means easy to draw the line which separates them.'*^ "New Orleans v. Great South. Tel., etc., Co., 52 La. Ann. 1082, 27 So. 590. 78 Am. St. Eep. 387. The nature and object of a license and a tax are entirely difTerent; the object of a tax is the revenue, the ob- ject of a license is a rcfjulation; and the fact that the license fee is payable into the treasury of the municipality does not make such license a tax where the fee is unreasonable, and tends to promote the object of the ordinance: East St. Louis v. Wehering, 46 111. 392; State v. Herod, 29 Iowa 123. If the license is unreasonable, and more than sufficient to effect the ostensive regulative purposes, it will be a tax and not a license: New Orleans v. Great South Tel., etc., Co., 52 La. Ann. 1082, 27 So. 590, 78 Am. St. Rep. 387. *^The question received consideration in the case of the Postal, etc., v. Ad- ams, 155 U. S. 088, 15 Sup. Ct. Rep. 268, where it was held that a tax of a designated sum per mile of telegraph wire in the state was a tax on prop- erty and not a mere privilege tax. The court used this language: "As pointed out by Mr. Justice Field in Horns Silver jMin. Co. v. New York, 143 U. S. 305, 12 Sup. Ct. Rep. 403, the right of the state to tax the franchise or privilege of being a cor- poration as personal property has been repeatedly recognized by this court, and this, whether the corporation be domestic or a foreign corporation, do- ing business by permission within the state. But a state cannot exclude from its limits a corporation engaged in interstate or foreign commerce, or a corporation in the employment of the general government, either directly in terms or indirectly by the imposition of inadmissible conditions. Neverthe- less the state may subject it to such property taxation as only incidentally afTects its occupation, as all business, whether of individuals or corporations, is affected by common governmental burdens. Ashley v. Ryan, 153 U. S. 436, 14 Sup. Ct. Rep. 865, and cases cited. Doubtless no state could add to the taxation of property according to the rule of ordinary property taxation, the burden of a license or other tax or the privilege of using, constructing or op- crating an instrumentality of inter- state or international commerce or for the carrying on of such commerce; but the value of property results from the use to whicli it is put and varies with the profitableness of that use, and by whatever name the exaction may be called, if it amounts to no more than the ordinaiy tax upon property, or a just equivalent therefor, ascertained by reference thereto, it is not open to at- tact as inconsistent with the constitu- tion. Cleveland, etc., R. Co. v. Back- us, 154 U. S. 439, 14 Sup. Ct. Rep. 1122. The method of 'taxation by a tax on privileges' has been determined by the Supreme Court of ^lississippi to be in harmony with the constitution of that state, and that 'where the par- ticular arrangement of taxation, pro- vided by legislative wisdom, may be ac- counted for on the assumption of com- promising or commuting for a just equivalent, according to the determina- tion of the legislature, in the general scheme of taxation, it will not be con- demned bv the courts as violative of 634 TELEGRAPH AND TELEPHONE COMPANIES. [§ 660 § 660. Excise tax. It has been held by a divided opinion of the United States Su- preme Court, that an excise tax could be imposed upon a railroad company carrying on interstate commerce. In this decision, the cases denying the power of a state to levy a privilege tax are not de- nied expressly, but it is held therein that a state is not precluded from levying an excise tax."*^ iN^o case against a telegraph company, the state constitution.' Vicksburg Bank v. Worrell, 67 Miss. 47, 7 So. 219. In that case privilege taxes im- posed on bank of deposit or discount, which varied with the amount of cap- ital stock or assets, and were declared to be in lieu of all other taxes, state, county or municipal, upon the shares and assets of said bank, came under review, and it was decided that the privilege tax, to be effectual as a re- lease from liability for all other taxes, must be measured by the capital stock, and the entire assets or wealth of the bank, and that real estate bought with funds of the bank was exempt from the ordinary ad valorem taxes, but was part of the assets of the bank to be considered in fixing the basis of its privilege tax." *^ In the case of Maine v. Grand Trunk, etc., Co., 142 U. S. 217, 12 Sup. Ct. Rep. 163, the court, said: "The tax, for the collection of which this action is brought, is an excise tax upon the defendant corporation for the privilege of exercising its franchises within the state of Maine. It is so declared in the statute which imposes it; and that a tax of this character is within the power of the state to levy there can be no question. The designation does not always indicate merely an inland imposition or duty on the consumption of commodities, but often denotes an impost for a license to pursue certain callings, or to deal in special commodities, or to exercise particular franchises. It is used more frequently, in this country, in the lat- ter sense than in any other. The priv- ilege of exercising the franchises of a corporation within a state is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the cor- poration should be made to bear some proportion of the burdens of govern- ment. As the granting of the privilege rests entirely in the discretion of the state whether the corporation be do- mestic or of foreign origin, it may be conferred upon such conditions, pecu- niary or otherwise, as the state, in its judgment, may deem most conducive to its interest or policy. It may require the payment into its treasury, each year, of a specific sum, or may appor- tion the amount exacted according to tlie value of the business permitted, as disclosed by its gains or receipts of the present or past years. The character of the tax, or its validity, is not de- termined by the mode adopted in fixing its amount for any specific period, or the times of its payment. The whole field of inquiry into the extent of rev- enue from sources at the command of the corporation is open to the consid- eration of the state in determining in what may be justly exacted for the privilege. The rule of apportioning the charge of the receipts of the busi- ness would seem to be eminently rea- <§ 660] TAXATION. 635 to onr knowledge, has been tested with respect to this question, hut we presume the same ruling would he held. The distinction drawn between the excise tax as given in the case cited and the privilege tax is not very clear, and it seems that the reasons given by the min- ority of judges who sat upon this case are the more plausible.^^ sonable, and likely to produce the most satisfactory results, both to the state and the corporation taxed." **Mr. Justice Bratley, who wrote the minority opinion (concurred in by Harland, Lamar and Brown, JJ.) , said: "But passing this by, the de- cisions of this court for a number of years past have settled the principle that taxation (which is a mode of regulation) of interstate commerce, or of the revenues derived therefrom (which is the same thing), is contrary- to the constitution. Going no fur- ther back than Pickard v. Pullman, etc., Car Co.. 117 U. S. 34, 6 Sup. Ct. Rep. 635, we find that principle laid down. There a privilege tax was im- posed upon Pullman's Palace Car Co., by general legislation, it is true, but applied to the company, of $50 per annum on every sleeping car going through the state. It was known, and appears by the record, that every sleep- ing car going through the state carried passengers from Ohio and other north- ern states to Alabama, and vice versa, and we held that Tennessee had no right to tax those cars. It was the same thing as if they had taxed the amount derived from the passengers in the cars. So, also, in the case of Leloup V. Port of Mobile, 127 U. S. 040, 8 Sup. Ct. Rep. 1380, we held that the receipts derived by the tele- graph company from the messages sent to one state from another could not be taxed. So in the case of Norfolk, etc., R. Co. V. Pennsylvania, 136 U. S. 114, 10 Sup. Ct. Rep. 958, where the rail- road was a link in a through line by which passengers and freight were car- ried into other states, the company was held to be engaged in the business of interstate commerce, and could not be taxed for the privilege of keeping an office in the state. And in the case of Crutcher v. Kentucky, 141 U. S. 47, 11 Sup. Ct. Rep. 851, we held that the taxation of an express company for doing an express business between different states was unconstitutional and void. And in the case of Philadel- phia, etc.. Steamship Co. v. Pennsylva- nia, 122 U. S. 326, 7 Sup. Ct. Rep. 1118, we held that a tax upon the gross receipts of the company was void, because they were derived from interstate and foreign commerce. A great many other cases might be re- ferred to showing that in the decisions and opinions of this court this kind of taxation is unconstitiitional and void. We think that the present de- cision is a departure from the line of these decisions. The tax, it is true, is called a 'tax on franchise.' It is so called, but what is it in fact? It is a tax on the receipts of the company de- rived from international transporta- tion. This court and some of the state courts have gone a great length in sus- taining various forms of taxes upon corporations. The train of reasoning upon which it is founded may be questionable. A corporation, according to this class of decisions, may be taxed several times over. It may be taxed for its charter, for its franchises, for the privilege of carrying on its business; it may be taxed on its capital, and it may be 636 TELEGRAPH AXD TELEPHOXE COMPANIES. [^ 661 § 661. Taxation on gross receipts — interstate business. It is a general rule, upheld by all the cuurts, that a tax cannot be imposed on the business of interstate commerce,^"* but it is sometimes difficult to give practical effect to the general rule. A tax cannot be laid on the gToss receipts of an interstate company, as this is a tax upon the business of interstate commerce.^'' But it has been held that a single tax assessed under the statute of a state upon the re- ceipts of a telegraph company, which are derived partly from inter- state commerce and partly from commerce within the state, which tax is assessed and returned in gross and without separation and appor- tionment, is not wholly invalid, but is invalid only to the extent that such receipts are derived from interstate commerce.^*^ § 662, Same on message. A tax imposed by a state on telegraph messages in general is in- valid, except in respect to messages transmitted wholly within the state.^''' A different rule was held by some of the state courts, but the ruling of the Supreme Court of the United States is as first taxed on its property. Each of these « Tel. Co. v. Texas, 105 U. S. 460; taxations may be carried to the full Philadelphia, etc., Co. v. Pennsylvania, amount of the property of the com- 122 U. S. 326; Ratterman v. West. U. pany." Tel. Co., 127 U. S. 411; Gloucester "Leloup V. Port of Mobile, 127 U. Ferry Co. v. Pennsylvania Co., 114 U. S. 640, 8 Sup. Ct. Rep. 1380; West. U. S. 196; McCall v. California, 136 U. S. Tel. Co. V. Ratterman, 127 U. S. 411; 104; West. U. Tel. Co. v. Pennsylvania, West. U. Tel. Co. v. Texas, 105 U. S. 128 U. S. 3!): West. U. Tel. Co. v. (15 Otto.) 460, 26 L. Ed. 1067; Pen- Seay, 132 U. S. 472; Leloup v. Port of sacola Tel. Co. v. West. U. Tel. Co., Mobile, 127 U. S. 640; Charleston v. 96 U. S. (6 Otto.) 1, 24 L. Ed. 708; Postal Tel. Cable Co. (S. C), 9 Ry. Gibbons v. Ogden, 22 U. S. (9 Wheat.) & Copp. L. J. 129; Crandall v. Neva- 1, 6 L. Ed. 23; Smith v. Turner. 48 da. 6 Wall. (U. S.) 35. U. S. (7 How.) 283, 12 L. Ed. 702: ^^ Rattennan v. West. U. Tel. Co., Thurlo v. Massachusetts, 46 U. S. (5 127 U. S. 411. How.) 504, 12 L. Ed. 256; Brown v. "'Wabash St. L. & P. R. Co. v. Illi- Maryland, 25 U. S. (12 Wheat.) 419, nois, 118 U. S. 557, 30 L. Ed. 244; 6 L. Ed. 678; Moran v. New Orleans, West. U. Tel. Co. v. Texas, 105 U.. S. 112 U. S. (12 Otto.) 69, 28 L. Ed. (15 Otto.) 460, 26 L. Ed. 1067; Hall 653; Philadelphia, etc., R. Co. v. Penn- v. Decier, 95 U. S. (5 Otto.) 485; 24 sylvania, 82 U. S. (15 Wall.) 232, 21 L. Ed. .547: The Daniel Ball, 77 U. L. Ed. 146. S. (10 Wall.) 557, 19 L. Ed. 999. ^ 663] T.VXATIOX, 637 stated.** Where a statute required a statement to be made by the chief manager of the telegi-aph company, of the entire number of full-rate and half-rate messages of the company, and that thus the amount of taxes due should be ascertained, a tax upon certain of the messafff'S was held unconstitutional; but the law contained no direc- tion requiring discrimination in the report between the messages that could be legally taxed and thnso that could not. and the entire law was held inoperative and void.*^ § 663. Municipal tax — compensation — use of streets. It has been held in a recent case that a municipal corporation may impose a tax on telegTaph companies as a compensation for the use of its streets.^*^ The court adjudged that such tax was neither a ^'West. U. Tel. Co. v. Com., 110 Pa. St. 405, 20 Atl. 720, reversed in 128 U. S. 39; also, West. U. Tel. Co. V. State Board, 80 Ala. 273, 60 Am. St. Rep. 99, reversed, in 145 U. S. 472; Mobile v. Port of Mobile, 76 Ala. 401, reversed, in 127 U. S. 640. "West. r. Tel. Co. v. Texas, 62 Tex. 630. »City of St. Louis v. West. U. Tel. Co., 148 U. S. 92, 13 Sup. Ct. Rep. 485. In the course of the opinion in that case, it was said: "And first with reference to the ruling that this charge was a privilege or license tax. To determine this question, we must refer to the language of the ordinance itself, and by that we find that the charge is imposed for the privilege of using the streets, alleys and public places, and is graduated by the amount of such use. Clearly, this is no priv- ilege or license tax. The amount to be paid is not graduated by the amount of the business, nor is it a sum fixed for the privilege of doing busi- ness. It is more in the nature of a charge for the use of the property be- longing to the city — that which may properly be called rental. 'A tax is a demand of sovereignty; a toll is a de- mand of proprietorship.' State Freight Tax Case, 15 Wall. 232, 278. If, in- stead of occupying the streets and pub- lic places with telegraph poles, the company should do what it may right- fully do, purchase ground in the va- rious blocks from private individuals, and to such ground remove its poles, the section would no longer have any application to it. That by it the city receives something which it may use as revenue does not determine the charac- ter of the charge or make it a tax. The revenues of a municipality may come from rentals as legitimately and as properly as from taxes. Suppose the city of St. Louis should find its city hall too small for its purposes, or too far removed from the center of business, and should purchase or build another more satisfactory in this re- spect, it would not therefore be forced to let the old remain vacant or to im- mediately sell it, but might derive rev- enue by renting its various rooms. Would an ordinance fixing the price at which those rooms could be occupied be in any sense one imposing a tax? Xor is the character of the charge 638 TELEGRAPH AXD TELEPHOiNE COMPANIES. [<§ 663 privilege tax nOr a license tax. There is a reason for discriminating between a tax imj^osed on these companies for the use of streets in a city and a license or privilege tax, but the distinction between the two is not verj clear, and unless there is a clear understanding of the distinction there is danger of great abuse arising therefrom. In de- tennining such questions, the ordinance providing for such taxing power should be resorted to, since from this alone can it be ascer- tained as to whether the tax is imposed as a compensation. § 664. City license tax on telegraph companies. It is held in Virginia that a city can impose a license fee upon a telegraph company or agency for business done exclusively therein, not including interstate business or business for the government. And it may impose such license tax upon an agency of interstate commerce such as these companies, provided it is not in excess of that to which the property of the company within the jurisdiction of the city would be subject under the ordinary modes of taxation, but it cannot levy a tax upon such company, in excess of what an ad valorem tax on its property within the city would be. Nor can it make the payment of this tax a condition precedent to the right to transact business.^^ § 665. Special franchise taxes. A new form of taxation, of very great importance, was introduced in New York state by the statute of 1899, making all franchises for the use of streets, highways, or public places, by railroads of any kind, or mains, pipes, tanks, conduits, or wires for any purpose, tax- able as special franchises, and to be deemed real property. Great corporations have persistently fought it, until now, by decision of the United States Supreme Court, they are compelled to submit to changed by reason of the fact that it is persons who pay a certain amount of not imposed upon such telegraph com- taxes to occupy a portion of the build- panies as by ordinances are taxed on ing free of rent, that would not make their gross income for city purposes. the charge upon others for their use of In the illustration just made in re- rooms a tax." speet to a city hall, suppose that the " Postal Tel. Co. v. City of Rich- city, in its ordinance fixing a price mond, 99 Va. 102, 37 S. E. 789, 86 for the use of rooms, should permit Am. St. Rep. 877. § 666] TAXATION. 639 it.'^ The main contention of the corporations against the validity of this tax was that it impaired the obligation of the contracts under which these franchises were obtained. Corporations which had paid a gross sum to obtain a franchise, or were required to pay annually either a fixed amount or a fixed percentage of their earnings, con- tended that such payments were all that the state could demand of them on account of such franchise. But the court held that the con- tract did not provide that these pavonents were to be in lieu of or an equivalent or substitute for taxes. As the state had not expressly relinquished the right to tax them, what they had paid for the grant of a privilege raised no implication of any relinquishment of the power to tax its value as in case of other property. The fact that the property was of an intangible kind made it no different in this re- spect from a grant of tangible property, like a tract of land. It was contended in one case that the valuation of such franchise was mere guesswork and speculation, which could not constitute process of law, but the court briefly disposed of this contention, holding that it had no merit where such valuation was made by a state board to which the owner of the franchise was required to furnish a written report, with notice and hearing accorded the owner and review of the assessment afforded by certiorari. The fact that some corpora- tions were previously subjected to annual payments "in the nature of a tax," under these existing contracts, and that these w^ere the stat- utes allowed to be deduced from the special franchise tax, was claimed to be a discrimination against other companies who had paid a lump sum for their franchises, and to deprive them of their prop- erty without due process of law, or to deny them the equal protection of the laws. But it was held that these constitutional rights were not thus impaired. There has been no case, to our knowledge, aris- ing directly against telegraph or telephone companies on this subject, but we presume the same law is applicable in that state to these com- panies. § 666. Where rights of being a corporation are derived from the United States. In many instances, telegraph companies derive their privileges and franchises from the United States; and where they have a situs in a " 25 Sup. Ct. R. 705. 640 TELEGRAPH AXD TEL'EPHONE C0:MPANIES. [§ 666 state, the latter may impose a tax upon the property of these com- panies notwithstanding this fact. It is the property of the company that is subject to such tax, and not the business. This is one fact which should be clearly understood, otherwise great confusion will most surely be the result. That is, a telegraph company having its situs within a state may have its property in that state taxed although its franchise is derived from the United States, and for the purpose of carrying on commerce between the states ; but the business or oper- ation of such company cannot be taxed, since that would be a tax upon interstate commerce. ^^ A state tax upon a franchise derived from the United States is void as an attempt to tax the operation of an instrument of the general government.^'^ § 667. Interest when payment of taxes is delayed. Under a statute providing that interest shall be charged upon all taxes not paid on or before a specified date, a telegraph company is liable for interest from the date prescribed, on the amount of taxes payable by it, notwithstanding the fact that payment was delayed pending the decision of an appeal taken from the assessment, in which a reduction of the assessment was obtained.^^ If the taxes are such as ought not to be paid, the company has a remedy for not paying same. But in order to protect the company from paying in- terest on the taxes for the delayed payment, the company should ten- der the amount for which it is assessed. § 668. Taxes of telephone companies. All that has been said in regard to the law of taxing tele- graph companies is applicable to telephone companies as well. There is nothing peculiar in the taxation of these companies differing from that of the taxation of other similar corporations. A message sent by telephone from one state into another is commerce between the "Reagan v. Mercantile Trust Co., "City of San Francisco v. West. U. 154 U. S. 413, 14 Sup. Ct. Rep. lOfiO; Tel. Co., 39 Am. & Enj?. Corp. Cas. West. U. Tel. Co. v. Att.-Gen., 125 U. (Cal.) 601. S. 530, 8 Sup. Ct. Rep. 961; City of "West. U. Tel. Co. v. State, 64 N. St. Louis V. West. U. Tel. Co., 148 U. H. 265. See Cooley on Tax. (2 Ed.) S. 92, 13 Sup. Ct. Rep. 485. 456. § 668] TAXATION. 641 states, and cannot be prohibited or regulated by injunction in either state against persons or corporations engaged in sending such mes- sages, because they do not pay the taxes assessed against them hy such state, since the effect of such an injunction, if permitted, would utterly suspend the business of the company and defeat all of its operations within the state enforcing such injunctions. T. & T.— 41 CHAPTER XXVIII. TELEGRAPH AND TELEPHONE COMMUNICATIONS AS EVIDENCE. § 669. In general. 670. What is a telegram. 671. Letters and telegrams — compared. 672. Same continued — admission of. 673. Same continued — presumption — exceptions. 674. Authorship must be proved. 675. Proof of signature. 676. Telegrams as declarations of sender. 677. Telegrams as evidence of communication. 678. Rule applicable to documentary evidence. 679. Primary evidence — in general. 680. Rule applicable to documentary evidence only. 681. Rule applicable to telegrams. 682. Depends upon which document is at issue. 683. Same continued — contents of message delivered to ad- dressee. 684'. Messages given orally for transmission. 685. Actions to recover statutory penalties and damages. 686. Secondary evidence. 687. Proof of absence of the original. 688. Notice to produce. 689. What evidence admissible as secondary. 690. Late improvements in telegraphy. 691. Same continued — secondary evidence. 692. Testimony of witnesses. 693. Secondary evidence of unstamped contracts. 694. When telegram need not be produced. 695. Declaration of employees subsequently employed. 696. Notice by telegram. 697. Telephone communication as evidence. 698. Identity of person. 699. When operator converses. 700. Operator as interpreter. 701. Oaths admissible by means of telephone. § 669. In general. We shall now discuss the law with respect to the admission of telegrams as evidence. In assuming- this undertaking we shall first discuss the manner of proving the contents of telegrams, then the (642) <§ G71] C0MML•^•ICATIo^•s as evidk.nce. 043 admission of such with respect to the statute of frauds, and, lastly, W(j shall speak of such evidence as a privileged communication. In thia chapter, Ave shall only discuss the first of these subdivisions, the man- ner of proving the contents of telegrams, and leave the other to be treated in subsequent chapters. In taking up the subject which we propose to discuss at present, we shall, after discussing the subject in general, speak of the best proof, or such as is termed primary, then such as is secondary, after which we shall say something of tel- ephone communications. § 670. What is a telegram. Before entering into this subject, however, we shall see what is meant by the tenn ''telegram." A telegram is a message sent by tel- egraph ;^ but under some circumstances a message sent over a tele- phone line is considered a telegram.- In England, there was a law ^ which empowered the postmaster-general to work and maintain tele- graphs for the benefit and use of the public. It was held that con- versations over or through telephone lines were "messages" or, at all events, "communications transmitted by telegraph," and, therefore, "telegrams" within the meaning of the act ; and that, since the com- pany made a profit out of the rents, conversations held by subscribers through their telephones were infringements of the exclusive privi- leges of transmitting telegrams granted to the postmaster-general by those acts. § 671. Letters and telegrams — compared. There is a similarity betAveen the moans of communicating news by telegraph and l)y the postal system, with respect to the proof of the delivery of the news to the party addressed. Where a letter is duly posted, stamped ami addressed for transmission by means of the United States mail, it is presumed that such letter reached its destination. A telegraph company is engaged in a public service, and is duty bound to transmit and deliver all messages entrusted to its care. ILn-ing assumed this duty, a similar presumption arises; 'Int. Deo. "Telegraph Act, 1SG3 and 1869. - G Q. B. Div. 244 : 20 Moak 602. 644 TELEGRAPH AXD TELEPHONE COMPANIES. [§ G71 that is, that the message was delivered.'* The presumption is that letters properly directed and mailed were received, and the same is true of telegrams given to a telegraph company for transmission and properly addressed,^ and the presumption becomes conclusive when not denied.^ § 672. Same continued — admission of. The general rule, relative to the admission of a letter in evidence against the person who is supposed to have written it, is, that it must first be proved that the letter was written by such person or by his request or authority. This may be done by comparing the written letter with other writings of his, or by any other evidence which will show that he had it done for himself. When it is shown by compe- tent evidence that he is the author of the letter, it may then be ad- mitted in evidence against him. If, however, the letter is in reply to one written to the person against whom it is to be admitted, it is not necessaiy to prove the latter's signature, but all that is necessary is to prove that the letter is one in reply to one written to such person in regard to the subject at issue. The rule relative to the admission of telegrams, with some exceptions, is similar to the above.'^ Thus, in order to admit a telegram in evidence against the sender, it must be first proved that he is the author of the telegram, and the same proof * Perry v. German American Bank, Eep. 320, 42 Pac. 301, 44 Pac. 723; 53 Neb. 89, 73 N. W. 538, 68 Am. St. Perry v. German American Bank, 53 Rep. 593; West. U. Tel. Co. v. Call. Neb. 89, 73 N. W. 538, 68 Am. St. Rep. Pub. Co., 44 Neb. 326, 27 L. R. A. 622, 593. 48 Am. St. Rep. 729, 62 N. W. 506; 'Oregon Steamboat Co. v. Otis, 100 Oregon S. S. Co. v. Otis, 100 N. Y. 446, N. Y. 446, 53 Am. Rep. 221; Austin v. 53 Am. St. Rep. 221. See, also, Epp- Holland, 67 N. Y. 571, 25 Am. Rop. inger v. Scott, 112 Cal. 369, 53 Am. 246; Eppinger v. Scott, 112 Cal. 309, St. Rep. 220, 42 Pac. 301, 44 Pac. 723. 53 Am. St. Rep. 220, 42 Pac. 301, 44 'Com. V. Jeffries, 7 Allen 548, 83 Pac. 723. Am. Dec. 717, and note. A telegram is 'United States v. Babcock, 3 Dill, presumed to have been delivered in the (U. S. 571; Southern R. Co. v. Howell, regular course of business to the per- 135 Ala. 639; Com. v. Burton, 183 son to whom it was directed. The fact Mass. 461, 67 N. E. 410; People v. that the telegram was sent is therefore Hammond, 93 N. W. (Mich.) 1084: admissible in evidence, and tends to Coupland v. Arrowsmith, 18 L. T. N. prove that it was received: Eppinger S. 755. V. Scott, 112 Cal. 369, 53 Am. St. <§) 673] COMMUNICATIONS AS EVIDENCE. 045 may be resorted to in this instance as that adopted for the proof of the aiitliorship of letter?. And while it may be admitted in evidence in the absence of proof of the sender's handwriting, when it is in reply to a letter written to such person, yet the general rule- is that it cannot be admitted in the absence of such proof when it is in reply to a telegram sent to such person.^ The reason for this rule may be readily seen. Where it is in reply to a letter, the signature of the author thereof may be known by the recipient thereof, or it is in such a place as to be known by him ; but in the case of signatures to telegrams, the recipient of the latter has no means of ascertaining the genuineness of such, more than what the operator may tell him. The rule, however, would be different where the message is transmitted by means of the late improvements made in telegraphy, and whicli will be hereafter discussed. In these cases, the same rule would ap- ply as where the message is in ro]'>ly to a letter.^ § 673. Same continued — presumption — exceptions. Where a letter has been received from a certain place in reply to a letter written to such person at such place, it is a presumption that 8 Smith V. Easton. 54 Md. 138, 39 in a letter to any one to effect it= Am. Rep. 355; Howley v. Whipple, 48 transportation by mail, it is absolutely X. H. 487. See, also, Ovenston v. necessary to disclose intelligence to at \\ ilson, 2 C. & K. 1, 61 C. L. 1. least two operators to effect its trans Compare Thorp v. Philbin. 15 Daly mission by telegraph. Consequently. (X. Y.) 155; People v. Ilanmiond, 93 the telegraph offers far greater oppor- X. W. (Mich.) 1084. tunity to deliver fraudulent answers to " Gray on Tel. 135. This writer inquiries than the mail does. This dis- says: "The principle upon which it is tinction renders the principle at pres- admitted is that the person who an- ent. under consideration inapplicable to swers a letter is almost invariably the communications by telegraph, however person to whom it is addressed. This, sound its application to communica- principle, since it is entirely independ- tions by mail may be deemed to be. ent of the question of handwriting, ap- The message written at the place of plies, apparently, with equal force to destination might be admissible to communication by telegraph. But it prove the authorization of the appa- does not in reality do so. It is true rent sender, if it purported to be an that the person who answers a tele- answer to a letter proved to have giaph message is usually the person to been properly mailed to him, the op- whom it is addressed. It is also true, portunity to deliver fraudulent an- however, that while it is unnecessary swers to inquiries in that form being to disclose the intelligence contained comparatively slight." 646 TELEGRAPH AIS'D TELEPHOKE COMPANIES. [^ Q7^ he was at that place at the time the letter was mailed.^" A different rule applies in case of telegrams. Thus, where a telegram was for- warded to a person at a certain place, and an answer purporting to be from him was received in due course, this is no evidence that such person was at that place at that particular time. "In the case of telegraphic communications, the ground of belief amounts merely to this : that the operator at one end of the line has informed the oper- ator at the other end, of the presence of the sender of the answer. This is mere hearsay." ^^ But a receipt of a message over the wires at the point of destination creates a presumption that the message was sent from the office from which it purports to come.-^- § 674. Authorship must be proved. As said heretofore, the authorship of a telegram must be proved before it can be admitted in evidence. If it is a reply to a letter, it is enough to show such fact; but if the original telegram is intro- duced, the handwriting of the sender must be shown, or other evi- dence of the genuineness must be given. ^^ The authenticity of cer- tain telegrams is sufficiently proven, prima facie at least, where one in an agreed cipher was proved to a certainty, others were referred to in exhibits of the opposite party, and still others contained direc- tions to draw drafts which were shown to have been drawn and paid.^* So, also, testimony of the recipient that he received the mes- sage and the admission of the sender that it is the message he sent, is abundant proof of the authenticity of the message. ^^ But where the sender testifies that the message was in her own handwriting and was sent by her, a dispatch taken from the company's files of about the same date, purporting to be signed by her and referring to the subject-matter in question, is not admissible if not in her handwrit- "1 Green. Ev. (14 Ed.), § .578. 094; Chester v. State, 23 Tex. App. '^Howley v. Whipple, 48 N. H. 487." 577. See, also, Eppinger v. Scott, 112 "Elwood V. West. U. Tel. Co., 4.5 N. Cal. 369, 53 Am. St. Rep. 220, 42 Pac. Y. 549, 6 Am. Rep. 140. .301, 44 Pac. 723. '» Richie v. Bass, 15 La. Ann. G68 : ^^ Oregon S. S. Co. v. Otis, 150 N, Y. Burt V. Winona, etc., R. Co., 31 Minn. 446, 53 Am. Rep. 221. 472, 18 N. W. 289; Smith v. Easton. « Dunbar v. United States, 156 U. S. 54 Md. 138, 39 Am. Rep. 355; Rey- 185. nold V. Hendricks (S. Dak.), 94 N. W. <§ 675] COMMUNICATIONS AS EVIDENCE. 647 ing.^*^ A pa]K'r oiTcrcil in evidence, purporting to contain a dispatch received at a telegraph office, is not admissible as evidence when no proof is given that it was in the handwriting of any person employed in the telegraph office where it purports to have been received, and no other proof of its authenticity is given. ^'^ § 675. Proof of signature. The same manner of proof necessary to prove a person's signature to a letter is applicable in the proof of signatures to telegrams. Thus, evidence founded on mere comparison of handwriting is not admis- sible as a general rule, to prove the genuineness of a signature ;^^ but it is held that an expert may give his opinion from mere compari- son.^^ Testimony by comparison of handwriting is admissible in corroboration of previous testimony.-^ So, if the witness has pre- \ious knowledge of the hand, he may, in corroboration of his testi- mony compare the writing with other signatures known to be gen- uine.^^ Writings used as standards in comparison of hands must l)e proved to be genuine. So, letter-press copies of letters found in the party's letter-book, are not admissible as standards of comparison to prove the genuineness of a signature, but original signatures must be used.2- In some instances, however, press copies may be admitted as secondary evidence, but not for comparison. When such is intro- duced, the witness should be asked if it appears to be in the handwrit- ing of defendant ; then, by proving that it is a press copy, it would follow that the letter from which the impression was made is defend- ant's also. He should not be asked : "In whose handwriting was the original of which this purports to be a copy ?" This question elicits the opinion of the witness concerning the handwriting and the necessary consequence of that opinion, in the same answer.-^ '•Lewis V. Havens, 40 Conn. 363. =« Baker v. Haines, 6 Worthon 234, "Richie v. Bass, 15 La. Ann. 668. 36 Am. Dec. 224. "Clark V. Wyatt, 15 Ind. 271, 77 =' Shank v. Butch. 28 Ind. 21. Am. Dec. 90. ^ See 48 Am. Dec. 596, and notes. "• Chance v. Indianapolis, etc., R. Co., " Com. v. Jeffries, 7 Allen 548, 83 32 Ind. 474; Fargry v. First Nat. Am. Dec. 712. Bank, 66 Ind. 125. 648 TELEGRAPH AjVD TELEPHOXE COMPANIES. [<^ 676 § 676. Telegrams as declarations of sender. "When a tclegTam is shown to have been delivered for transmission, and it is proven that the signature to same is that of the sender, such telegram may be admitted as the sender's declaration.-^ Thus, evi- dence that a telegram was sent by the defendant to the drawee of an order which he had given to plaintiff, directing the drawee to withhold a part of the amount specified and to pay the remainder, is competent as tending to show an admission bj^ the defendant of in- debtedness, at least to the extent of the amount of such remainder.^ ^ The general rule is, that a wife cannot testify in a criminal case against her husband, unless the charge is one which has been com- mitted on her by him.-^ So, a telegram from a wafe of one of the defendants in an action for conspiracy, not written nor sent by either of them, is in admissible as evidence against them. As the declara- tion of the wife, it could not effect even her husband.-'^ § 677. Telegrams as evidence of communication. Business affairs may be transacted by means of telegrams as well as by means of correspondence by letter, and when there is an action arising over a business transaction, all letters sent or received by the parties to the action and in regard to the matter at issue, may be admitted in evidence. So, when it is shown that telegrams have been received in due course from either party, they may be admitted as evidence of the communication between the parties.^ ^ They may also be admitted to show the information upon w'hich the addressee may have acted, where his good faith or his intentions are in question ; " Com. V. Jeffries, 7 Allen 548, 83 254. Telegrams transmitted to plain- Am. Dec. 712. See, also, People v. tiff in attachment suits by telephone, Hammond, 93 N. W. (Mich.) 1084. and reduced to writing by the person * Griggs V. Deal, 30 Mo. App. 152. who received them, and in that form See, also, Buford v. Samuel, 40 Pa. St. acted upon by plaintiff, are admissible 9, 80 Am. Dec. 545. as showing the information upon which "^ State V. Jolly, 3 Devereux and the attachment was sued out; and it is Battle's Law 110, 32 Am. Dec. 656. not necessary that the dispatches "" Buford V. Samuel, 40 Pa. St. 9, should be verified by comparing them 80 Am. Dec. 545. with the originals on file with the '^ Com. V. Jeffries, 7 Allen (Mass.) telegraph company. Deere v. Bagley, 548, 83 Am. Dec. 712; Taylor v. 80 Iowa 197, 45 N. W. 557. Steamboat Robert Campbell, 20 Mo. <§, 678] COMMUNICATIONS AS EVIDENCE. G49 provided it is shown that he read and acted upon thoni.-^ Thus, a telegram sent by telephone and reduced to writing by the person re- ceiving it, may be admitted as showing information on which a plain- tiff acted in suing out an attachment. It is not necessary, in siicli a case, that they should be verified by comparing them with the origi- nals on file in the company's office; the question in such a case is, not what the original messages contained, but what was contained in them when they reached the plaintiff.^*^ § 678. Rule applicable to documentary evidence. It would be foreign to the purpose of this treatise to discuss the general rule in relation to the admission of evidence pertaining to documentary evidence, but suffice it to say, the general rule govern- ing such evidence is applicable in the case of telegrams.^ ^ As a rule, however, in order for the message to be admitted against anyone, it must be shown that he is a party to the message, either as the sender or receiver.^- Thus, correspondence by wire between operators send- ing and receiving a message, which w^as not communicated to the sender, is not admissible to show that the person to whom the mes- sage was directed was absent from the place of delivery.^^ So, also, letters and telegrams as to the cancellation of an insurance policy, sent by an insurance company to its agent after a loss, are not ad- missible against the insured in an action on the policy.^^ There may ^ J. K. Arnisby Co. v. Eskerly, 42 mond v. Sundburg, 77 loAva 255; West. :Mo. App. 299. ' U. Tel. Co. v. Cooper, 71 Tex. 507, 1 =" Deere v. Bagley, 80 Iowa 197, 45 L. R. A. 728, 10 Am. St. Rep. 772: N. W. 557. West. U. Tel. Co. v. Henderson, 8!) ='Coni. V. Vasburg, 112 Mass. 419: Ala. 510, 7 So. 419, 18 Am. St. Rep. Brownfield v. Phoenix Ins. Co., 35 Mo. 148. App. 54, 26 Mo. App. 390; Buford v. '^ Powell v. Bninner, 86 Ga. 531. Samuel, 40 Pa. St. 9, 80 Am. Dec. 12 S. E. 744; People v. Hammond, 93 545; Eldridge v. Hargreaves, 30 Neb. N. W. (Mich.) 1084. 638, 46 N. W. 923; Hammond v. Bee- »»West. U. Tel. Co. v. Cooper, 71 son, 15 S. W. (Me.) 1000: State v. Tex. 507, 1 L. R. A. 728, 10 Am. St. Espuozie, 20 Nev. 209, 19 Pac. 677: Rep. 772. International, etc., R. Co. v. Prince. ^Brownfield v. Phoonix Ins. Co., 3."> 77 Tex. 560; Powell v. Brunner, 86 Ga. Mo. App. 54, 26 :Mo. App. 390. See. 531, 12 S. E. 744; J. K. Armshy Co. also, Larinin v. Carley. 114 111. 196. V. Eskerly, 42 :\Io. App. 299; Rich- 650 TELEGRAPH AND TELEPHONE COMPANIES. [<^ 678 be, however, some exceptions to the rule. Thus, where an action is brought to recover the price of goods sold, a telegram countermand- ing the order for such goods, although it was sent to one not a party to the action, is admissible when it appears that it w^as intended to be delivered to the sellers of the goods and that it actually came into their possession and was replied to by such parties. ^^ § 679. Primary evidence — in general. One of the general rules of the law of evidence is, that the best obtainable evidence must be adduced in court, or such as is gener- ally termed primary evidence. It has been a rule repeatedly enun- ciated by the courts from the earliest times that the highest degree of proof of which the case from its nature is susceptible must, if ob- tainable, be produced; or, in other words, that no evidence shall be adduced which presupposes that the party offering it can obtain bet- ter evidence.^® "The object of the rule of law," as was ably said, "'which requires the production of the best evidence of which the fact sought to be established is susceptible, is the prevention of fraud ; for if a party is in possession of this evidence, and withholds it, and seeks to substitute inferior evidence in its place, the presumption nat- urally arises that the better evidence is withheld for fraudulent pur- poses which its production would expose and defeat." ^'^ This rule does not mean that the strongest possible evidence of the matter at issue shall be given, or that all evidence in the case shall be produced ; but it requires simply that no evidence shall be given which, from its nature, may warrant the inference that there is obtainable by the party evidence more direct, conclusive and original. In other words, it means that the most direct, satisfactory and conclusive evidence ob- tainable, and that of the highest degree or grade, must be produced. ^^ "^Eldridge v. Hargreavps. 30 Neb. " Bagley v. McMickle, 9 Cal. 430. C38, 46 N. W. 923. ^Elliott v. Van Buren, 35 Mich. 49, » People V. Lambert, 5 Mich. 349, 72 20 Am. Eep. 668; West. U. Tel. Co. v. Am. Dec. 49; Storm v. Green, 51 Miss. Stevenson, 128 Pa. St. 442, 18 Atl. 441, 103; Clifton v. U. S., 4 How. 242, 11 15 Am. St. Rep. 687, 5 L. R. A. 515; L. Ed. 957; Church v. Hubbard, 2 Zang v. Wyat, 25 Cal. 551, 56 Pac. Cranch 187, 2 L. Ed. 249; Ward v. 565, 71 Am. St. Rep. 145. Hohn, 58 Fed. 462, 7 C. C. A. 314. (^ 681] COMMUNICATIONS AS EVIDENCE. 651 § 680. Rule applicable to documentary evidence only. This rule is applicable to the admission of documentary evidence only, since there is no primary and secondary evidence to such as may be oral. In otlier words, the testimony of one witness cannot be excluded on the ground that another might give more conclusive evidence.2^ If two parties claim that they are familiar with the circumstances of a particular transaction, but their statements in re- gard to same are conflicting, it is within the province of the jury to determine which statement is the more correct, and it is never the duty of the court to exclude the testimony of one witness because it may think that of another is better. Where, however, documents or other written instruments exist, the contents of which are in dispute, the original should be produced to prove such contents rather than to prove it by other evidence which would be open to the charge of in- accuracy.'*'^ In some instances, however, and more particularly with respect to proving telegrams, parol evidence may be best ; which fact we shall speak of later. § 681. Rule applicable to telegrams. The principal question involved in the consideration of the admis- sion of telegrams as evidence to prove their contents is. What is the best evidence to prove such facts ? The general rule is, that the orig- inal telegram, when obtainable, shall be produced; but it is not an easy matter in every instance to determine what is the original tel- egram. In such communications there are two distinct documents; the one delivered by a person to the company for transmission, and the other delivered by the company to the person to whom it was sent. The contents of these two may be identical ; and while the presump- tion may be that they are the same, yet it is not the case in every instance. So, the presumption is not a conclusive one. It is gener- ally held that this question depends upon the further question as to who the company represented as agent, the sender or the recipient of =» Nelson v. Boyston, 3 Mete. 396, 37 20 Am. Rep. 49, 20 Am. Rep. 668; Am. Dec. 148; Elliott v. Van Buren, Heneky v. Smith, 10 Oreg. 349, 45 Am. 33 Mich. 49, 20 Am. Rep. 668. Rep. 143. *"> Elliott V. Van Buren, 33 Mich. 49, 652 TELEGRAPH AXD TELEPHONE COMPANIES. [<^ 681 the message ? In other words, if the person sending the message take? the initiative so that the company is to be regarded as his agent, the message actually delivered at the end of the line is the original and primary evidence ; but if the person to whom the message is sent takes the risk of its transmission, or is the employer of the company, the message deliverod to the operator is the original.^ ^ § 682. Depends upon which document is at issue. The proper solution of this question, we think, depends upon which document is at issue. In other words, it depends upon whether the contents of the message delivered by the sender to the company are at issue, or whether it is the contents of the message delivered by the company to the addressee. The message delivered to the com- pany is the original whenever the words authorized to be sent and which were thereupon agreed to be transmitted and delivered to the addressee are in issue.^- It is necessary to prove these words, when- ever a company is sued for a breach of contract,^^ that is, the rule applies to cases in which the telegraph company is a party. So, also, when the message is offered as a declaration by the sender in a crim- inal proceeding, or as an admission in a civil action, the message as tendered to the company for transmission is the original and best proof.'* ^ § 683. Same continued — contents of message delivered to ad- dressee. Whenever the words which the company actually delivered to the person to whom the message was sent are at issue, the message de- livered to such person is the original and best evidence. So, when the message relates -to a contract between the sender and addressee, made by means of a telegram, the rule is that the nature of the con- tract depends upon the message delivered to the addressee; or, in other words, to be more clear on this subject, if the addressee is un- der legal obligation to obey the telegraphic orders of another, the " Saveland v. Green, 20 Wis. 431. '"Coni. v. Jeffries, 7 Allen (Mass.) ••'Gray on Tel. 233 and note. 548, 83 Am. Dec. 712. See, also, Mor- *^ Gray on Tel. 234 and note. gan v. People, 5!) 111. 58. <§ 684] COMMUNICATIONS AS EVIDENCE. 653 message transmitted and delivered to him and not what was intended or directed to be sent, contains the best proof of such facts, and shouhl, Ihcreforc, be adduced in evidence/^ and this, too, without ac- counting for the message tendered to the company for transmission.^® This is not, however, always the rule. If, for instance, the addressee suggest that the telegraph company be used as a means to consummate the contract, this fact will make the company the agent for the ad- dressee, and tlic message which was delivered to the company will be the original and best evidence.^" If the action is based merely on the delay in delivery, the message delivered to the addressee is the best evidence to prove such fact without proof of the message deliv- ered to the company,^^ especially where there is no dispute as to the contents of the two.^^ § 684. Messages given orally for transmission. The best evidence to prove the contents of a message given for transmission is not always by a written telegram, but in order to ex- clude as a copy the message transmitted and delivered, it must ap- pear that the message given for transmission was in writing, since there can be no copy of an oral communication.^" Where it is sought *^ Illinois. — Anheuser-Busch r.rc\vin;jr West Virginia. — ^lorchants' Nat. Assoc. V. Heitmocher, 127 111. 652, 4 Bank v. Wheeling First Nat. Bank, 7 L. R. A. 575, 21 N. E. 626, affirming W. Va. 544. 29 111. App. 316; Chicago, etc., R. Co. " Saveland v. Green, 40 Wis. 431; V. Russel, 91 111. 298, 33 Am. Dec. 54; Oregon S. S. Co. v. Otis, 100 N. Y. Matteson v. Noys, 25 111. 591. 440, 53 Am. Rep. 221. Kansas. — Barous v. Brown, 25 Kan. *' Smith v. Easton, 54 Md. 138, 30 414. Am. Rep. 355. See, alsoj Pegram v. .¥assac/i use/ /s.—Niekerson v. Spin- West. U. Tel. Co., 100 N. C. 28, 6 dell, 104 Mass. 25, 41 N. E. 105. Am. St. Rep. 557, 6 S. E. 677. Minnesota. — Wilson v. ]Minncapolis, ^ Conyors v. Postal Tel. Cable Co., etc., R. Co., 31 Minn. 481, 18 N. W. 92 Ga. 619, 19 S. E. 253, 44 Am. St. 291; Magie v. Herman, 50 Minn. 424, Rep. 100; West. U. Tel. Co. v. Bates, 52 N. W. 909. 36 Am. St. Rep. 660. 93 Ga. 302, 20 S. E. 039; West. U. Tel. Neio Hajnpshire.—Tlowlej v. Whip- Co. v. Blanse, 94 Ga. 431, 19 S. E. 253. pie, 48 N. H. 487. *» West. U. Tel. Co. v. Fatman, 73 New Yorfc.— Thorp v. Pliilhin. 15 Ga. 285, 54 Am. Rep. 877. Daly 155. "Bank v. Richardson. 47 N. C. Vermont. — Durkee v. Vermont Cent. 109. In this case, it was held that R. Co., 29 Vt. 127. dots and d;ishos made on paper at the 654 TELEGEAPH AKD TELEPHONE COMPANIES. [§ GS4 to show by parol evidence the contents of a message delivered to the company's operator, it cannot be objected that thc^ evidence of- fered was not the best evidence, unless it be shown that the mes- sage delivered to the operator was in writing; and since, as a matter of fact, many telegrams are communicated orally by the sender to the operator, the court cannot conclude, without proof, that telegrams given to an operator in any given case were in writing.^ ^ The gen- eral rule would clearly be applicable where it is sought to prove by parol the contents of a message transmitted and delivered, if it ap- peared that the message transmitted was delivered orally to the re- cipient without being reduced to writing.^^ § 685. Actions to recover statutory penalties and damages. In an action against a telegraph company to recover damages or a statutory penalty for failure to transmit and deliver a message with due diligence, the issue being not as to the contents of the telegram, but as to failure or delay in transmission and delivery, the message actually delivered by the company is admissible in evidence without producing or explaining the absence of the message delivered by the sender to the company .'^^ There was one case, however, which held that the telegram delivered to the operator was the original and should have been produced.^* This case has been later disapproved.^^ But it has been held that, if in such an action, the contents of the telegram sent are material, the loss by plaintiff of the telegrams re- ceived will not lay the foundation for introducing parol evidence of the contents without accounting by notice to produce, or otherwise, telegraph office cannot constitute the Conyers v. Postal Tel. Cable Co., 92 orginal of a message when the words Ga. 619, 19 S. E. 253, 44 Am. St. Rep. of the message are put in writing by 100; West. U. Tel. Co. v. Fatman, 73 the operator. Ga. 285, 54 Am. Rep. 877; West. U. "Terre Haute, etc., R. Co. v. Stock- Tel. Co. v. Cline, 8 Ind. App. 364, 35 well, 118 Ind. 98, 20 N. E. 050. Sec, K E. 564. See, also, West. U. Tel. also, Bank v. Richmond, 47 N. Car. Co. v. Smith, 26 S. W. (Tex.) 216. 109. ^*West. U. Tol. Co. v. Hopkins, 49 "Durke v. Vermont Cent. R. Co., 29 Ind. 223. Vt. 127. "'Reliance Lumber Co. v. West. U. *»West. U. Tel. Co. v. Blance, 94 Tel. Co., 58 Tex. 394, 44 Am. Rep. Ga. 431, 19 S. E. 255; West. U. Tel. 020. Co. V. Bates, 93 Ga. 352, 20 S. E. 639; <^ 686] COMMUNICATIOiVS AS EVIDENCE. 655 for the non-production of the telegrams written and delivered by the sender for transmission."'" § 686. Secondary evidence. It is a general rule of evidence that when written evidence of a fact exists, the writing constitutes the best evidence of the fact; and where the Avriting is not produced, parol evidence cannot be admit- ted to prove its contents, unless the absence of the writing is satis- factorily explained. In other words, parol evidence is not admissi- ble in substitution for available written evidence, and the contents of a writing cannot be proved by parol evidence.'^" The contents of a letter may be proved by secondary evidence, where such letter, if existing, Avould itself be admissible. And this is so when the de- struction of such letter is shown to have arisen from misapprehen- sion, and was without any fraudulent purpose, though such destruc- tion was the party's voluntary act.^^ Such evidence must not only appear to be the best secondary evidence, but it must be the best legal evidence obtainable under the circumstances.^^ The rule which gov- erns the admission of secondary evidence of the contents of docu- ments generally, apply to the admission of secondary evidence of the contents of a telegraph message. Thus, the contents of a tele- gram cannot be proved by testimony of the person to whom it is sent, without producing the original or accounting for its absence.^" ■^West. U. Tel. Co. v. Hines, 94 Ga. 83 Ala. 401,, 3 So. 796: Wliildcn v. 430, 20 S. E. 349, disapproving and :Merchants', etc., Nat. Bank. 1)4 Ala. 1, limiting Cincinnati, etc., R. Co. v. Des- 38 Am. Rep. 1. brow, 76 Ga. 253. But see, West. U. Arizotia. — Yavepai County v. O'Neil. Tel. Co. V. Thompson, 18 Tex. Civ. 29 Pac. 430. App. 279, 44 S. W. 402. Geor^-ia.— West. U. Tel. Co. v. Tlinos, ■"Newsom v. Jackson, 26 Ga. 241, 71 94 Ga. 430, 20 S. E. 349. Am. Dec. 206; Boyston v, Rees, 8 Indiana. — West. U. Tel. Co. v. Hop- Pick. 329, 19 Am. Dec. 326; Johnson kins, 49 Ind. 223. V. Arunwino. 42 N. J. L. 451, 36 Am. Mississippi. — Williams v. Briekill, Rep. 527. 37 Miss. 682, 75 Am. Dec. 88. ^Tobin V. Shaw, 45 Me. 331, 71 Am. Nebraska.— Yeiser v. Gathers. 97 N. Dec. 647. W. 840. "•Philipson v. Bates, 2 Mo. 116, 22 rea;as.— Prat lier v. Wilkins. OS Tox. Am. Dec. 444. 187; West. U. Tel. Co. v. Williford. 27 •" Alabama.— McCormick v. Joseph, S. W. 700. 656 TELEGRAPH AND TELEPHO^^E COMPANIES, [<^ 687 § 687. Proof of absence of the original. As was said, in order to produce secondary evidence of the contents of a message, it must be shown by sufficient proof that the original has been lost, destroyed or is otherwise not obtainable. It is not an easy matter to make a fixed rule by which the admission of such evidence is to be governed, but the circumstances of each particular case must be considered in making such rule. There must be suffi- cient proof adduced by the party offering such evidence that the or- iginal has been lost or destroyed, and that he has made diligent ef- forts to find same.^^ Thus, where the employee of the company testi- fied that he worked at the office at which the telegram was received, that the message could not be found there, and that under the rules of the company messages were sent to the head offices to be destroyed after remaining at the receiving office for six months, this is suffi- cient to show the impossibility of obtaining the original.^- It is not competent, however, for the messenger of the receiving office, to tes- tify from information that the message filed with him had been de- stroyed by the employees of the head offices.''^ When the employee, who, at the time of testifying but not at the time of receipt, had pos- session of the papers and books of the office from which the message was transmitted, testified that none of the messages forwarded from the office on the day on which the message sent were in the office, and that he supposed all such messages had been destroyed, as it was the custom to destroy them after six months, the destruction of same is not established by the testimony of such employee.^'* While the testimony of such employee may prove the absence of the message from the office, yet it would not establish the destruction of it, which could only be done by the officer causing the destruction.^^ It was held in one case, that the addressee might testify to the contents of a message where the sender, who was a party to the action, did not deny having sent it and where the contents are set out in the declara- «' Flint V. Kennedy, 33 Fed. 820. Rep. 221, 14 Abb. N. Cas. (N. Y.) 388. •■-Riordan v. Guf^gerty, 74 Iowa 688, See, also, People v. Hammond, 93 N. 39 X. W. 107; West. U. Tel. Co. v. W. (Mich.) 1084. Collins, 4.5 Kan. 88, 10 L. R. A. .515n. '= American U. Tel. Co. v. Dougherty, 2.5 Pae. 187; Smith v. Easton, 54 Md. SO Ala. 191, 7 So. 7G6. 138, 39 Am. Rep. 355; Oregon Steam- "* Barons v. Brown, 2:i Kan. 410. ship Co. V. Otis, 100 X. Y. 446, 53 Am. '- 1 Greenl. Ev., § 84n. (^ 689] co>n[UNiCATioNS as evidence. 6oT tion.'^^ This is not the rule where the original is not accounted for, but was admitted on the ground of its harmlessness. § 688. Notice to produce. In order that secondary evidence may be admitted to prove the contents of a telegram, the rule is that the party offering to produce such evidence should, if the original is in the possession or under the control of the adverse party to the suit, give him sufficient notice to produce it. If the telegram is in the possession of a stranger to the action, and w^ho is not legally bound to produce it, the person offering to produce secondary evidence of its contents must have served a subpoena duces tecum upon such stranger. Where the tele- gram is alleged to have been lost or destroyed, it must be shown, as said, that diligent search has been made for the original.®^ This is the rule where the telegraph company is not made a party to the action, for the rule does not apply where the original message is the foundation of the action, and the adverse party must know from the very nature of the case that it is charged with the possession of it. For instance, in an action against a company for the breach of a contract to communicate a message, the plaintiff need not give the defendant notice to produce that message ; he may immediately resort to parol evidence to prove the contents.^^ This rule has been con- tradicted,^^ but we think that it was wrongly so. § 689. What evidence admissible as secondary. When it is sufficiently shown that the original telegram cannot be produced to prove its contents, the question which then presents it- self is, What evidence should be produced as being the next best evi- dence ? As said elsewhere, when the original or best evidence cannot be produced, the next accessible evidence to prove such fact must be produced. "^"^ If the company preserves letter-press or other copies of "Williams v. Brickell, 37 Miss. 682. « Reliance Lumber Co. v. West. U. 75 Am. Dec. 88. See. also. Oregon Tel. Co., 58 Tex. 394, 44 Am. Rep. 620. Steamship Co. v. Otis. 100 N. Y. 446. »»We3t. U. Tel. Co. v. Hopkins, 49 53 Am. Rep. 221. Tnd. 223. "Stephen's Dig. of Ev., arts. 67, " Philipson v. Bates, 2 Mo. 116, 22 68; Matteson v. Xoyes, 25 111. 591. Am. Dec. 444. T. k T.— 42 658 TELEGRAPH AND TELEPHO^sE COMPANIES. [§ 689 the original telegram which it receives and delivers, it seems that this would be the next best evidence."^ ^ The office book of these com- panies is not, however, a shop book or an account book, or any rec- ord recognized by law as evidence, and where it only contains a mem- orandum of the terms of the original message, it can only be used to refresh the memory of the witness, where such usage is the prac- tice. If a copy of the message is kept by authority of the company at either end of the line, or by a connecting company, it seems that it would be admissible as secondary evidence. A telegram written at one end of the line may be introduced as evidence at the other end, it seems, in two different ways : It may be introduced as the original, and when this is the case it must be proved to be the original f^ or, where the contents of the message delivered to the addressee are at issue/^ it may be introduced as a fact relative to the fact in issue. .It is part of the contract of transmission that the message will be transmitted and delivered in the exact words in which it was re- ceived from the sender; and when the issue arises on the incorrect- ness of the transmission, the original message must be introduced to prove such incorrectness. It was held in one case that on proof of the destruction of the original telegram, an uncertified copy was ad- missible on a trial of forgery to show that the respondent at a cer- tain time knew of a material fact therein stated.'^^ Where the issue is as to whether the message Avas ever delivered at all to the addressee, the receipt of the message by such person is the best evidence. § 690. Late improvements in telegraphy. We do not think that the late improvements made in telegraphy will change the law heretofore discussed, in any particular, and es- pecially do we think this is true with respect to the rules of evi- dence herein treated. Of course, in some instances the company will not be liable for errors made in the transmission by means of the late improvements, where it would otherwise be, should the message have "Anglo-American Packing, etc., Co. "Com. v. Jeffries, 7 Allen (Mass.) V. Com., 31 Fed. 313; Durkee v. Vt. 548, 83 Am. Dec. 712. C. R. Co., 29 Vt. 1277. ^* State v. Hopkins, 50 Vt. 316. "Barons v. Brown, 25 Kan. 410; Smith V. Easton, 54 Md. 138. § 691] COMMUNICATIONS AS EVIDENCE. 659 been transmitted by the old method. What we mean is this: there is a very late invention on the method of transmitting news over tel- egraph lines, by means of which the sender, instead of the operator, virtnally sends or transmits the message himself. In other words, he writes the message himself and, at the same time, by means of an electric connection of the pencil used by him with another at the re- ceiving office, an exact copy is reproduced at the latter office. A still later improvement is where typewriters are connected instead of an electric connection. Xow where these goods are in good working order, or when the company is not negligent in keeping them in suit- able condition, it will not be liable for errors made in the transmis- sion of news, when the sender voluntarily operates the machine him- self. The wireless telegraphy is operated wholly by experienced em- ployees of the company and the same liabilities are imposed on them for errors made as those imposed on the ordinary wire telegraph com- panies. A discussion of this subject may seem inappropriate at this place, but something was desired to be said about it and we decided it would be as well to speak here of it as in any other place. § 691. Same continued — secondary evidence. With respect to the proof of the contents of telegrams sent by means of the w^ireless telegraph, the same rule of evidence is applica- ble as in the proof of telegrams sent by the ordinary telegraphic method. When it is sent by one of the other methods discussed in the preceding section, the original is the telegram written by the sender at the transmitting office, when the contents of the telegram delivered to the company are attempted to be shown. If this cannot, however, be produced, the next best evidence to prove such fact, as we believe, would bo the roprodueod copy at the other end of the line. If, however, it is required that a copy of the telegi'am be kept at tht- transmitting office, there is a doubt in our minds as to w^hetlier this or the reproduced copy at the other end of the line would be the best evidence; but w^e are inclined to think that if the contents of the tel- egram as delivered for transmission are at issue, the copy at the transmitting office would be the best evidence to prove such fact. In other respects, the admission of telegrams as evidence is the same as the admission of such as are sent in the ordinary ways, and which has alreadv been discussed. 660 TELEGRAPH AND TELEPHONE COTSIPANIES. [<§> 692 § 692. Testimony of witnesses. When the original cannot be produced, the addressee of the tele- gram may testify that it was received by him ; however, if it is not shown by the admission of such person that he did receive it, sucli fact must be shown, either by his written receipt for the delivery — if he gave one — or by the oral testimony of some one present when it was delivered. But if there is proof that the message was prop- erly placed upon the wires, and that the person to whom the message was sent was present at the place of destination, it has been held that a presumption of delivery then arises.' ° This presumption is not conclusive, however, but the burden is cast upon the plaintiff to show that it was not delivered to him. This may be proved by par- ties who were with him when he was in the office, and who could have seen the delivery if such had been made. § 693. Secondary evidence of unstamped contracts. It has been held that if a written instrument which is the founda- tion of the action is not stamped, and is excluded as evidence for that reason, the contract evidenced by such written instrument cannot be proved by parol."*^ We presume the same rule would apply to ac- tions upon which telegrams are the foundation. In an Alabama case it was held that the company would not be liable for negligently transmitting an unstamped telegram. '^'^ But if the telegram, not be- ing the foundation of the action, is offered in evidence by a person not a party to it, as an admission of the adverse party touching a matter at issue, the fact that it is not stamped is no ground for ob- jecting to its admission, '^^ If suit is brought upon the original con- sideration for which an unstamped note is given, the note is admissi- ble in evidence to explain the testimony of a witness in reference to the date of a settlement between the parties, and the amount found ducj^ and an imstamped telegram containing such facts may be ad- «Com. V. Jeffries, 7 Allen (Mass.) ^"Mobile, etc.. R. Co. v. Edwards, 46 .548, 83 Am. Dee. 712; U. S. v. Bab- Ala. 267. cock, 3 Dill. .571. See, also, State v. "West. U. Tel. Co. v. Young. 36 So. Hopkins, .50 Vt. 316; Greenl. on Ev., 374. § 40. 'sjjeig V Hillman, 25 Ohio St. 180. ^° Israel v. Kedding, 40 111. 362. ^ 694] OOM.ML'MCATIOXS AS EVIDEKCK. GGl mitted to prove such. This discussion is of little importance just now, as the revenue stamp law has been repealed.* so § 694. When telegram need not be produced. Where a written instrument is only an evidence of a fact in issue, it need not be produced, nor need its absence be satisfactorily ac- counted for before other evidence of that fact is admissible.^ ^ Thus, a payment of money may be proved by oral testimony, without ac- counting for the absence of the written receipt.^- Applying this rule to telegraphic messages, it follows that when the message is merely an evidence of a fact in issue, it need not be produced nor its absence accounted for, before oral testimony may be admitted to prove such fact. Thus, as has been seen, the contents of the telegram delivered to the company for transmission, may be proved by oral testimony only when its absence has been satisfactorily accounted for, yet the absence of such message need not be satisfactorily accounted for be- fore the introduction of oral testimony of the genuineness or authori- zation of the sender. So, the delivery of a telegram to the person addressed may be proved orally without accounting for the written receipt for that delivery. So, also, where the action is for a delay in the delivery of a message, oral testimony may be introduced to show such delay, without accounting for the message actually de- livered, and upon which is noted the exact time of delivery.^^ When a telegram has been altered in transmission, whereby the sender suf- fers an injury, he may prove by oral testimony that the authorized ^ Act of Congress, Jum^ 13. 1808. and dary but primary: \Yest. U. Tel. Ca 1001. V. Cline, 8 Ind. App. 364, 35 X. E. **Greenl. on Ev., §90; Taylor on .")(i4. Where copies of telegrams relat- Ev. (7 Ed.), §§ 415, 416. ing to a matter about which tht-re is ®^ Jacobs V. Lindsey, 1 East. 4G0. no controver.sy have been filed on a no- ^ Where the telegram is not itself tice. it is proper to permit the opera- the foundation of the action, but the tor who received the telegram to state failure to transmit and deliver it them, when such statement does not within a reasonable time is the gist of materially differ from the copies filed, the controversy, the fact that the mes- International, etc., I\. Co. v. Prince. 77 sage was delivered for transmi-ssion is Tex. 500. 14 S. \V. 171. 19 Am. St a substantive fact necessary to be Eep. 795: International, etc.. R. Co. ])roved. and the last rule does not aj)- v. Cock, 14 S. W. (Tex.) 242. ply, and parol evidence is "not secon- 662 TELEGRAPH A^^D telepho:n^e compakies. [§ 694 message was not delivered without accounting for the message as de- livered, but if the addressee should institute the action for injuries sustained by acting on a misinformation, he should produce the al- tered message, or give good reasons for its absence. ^^ § 695. Declaration of employees subsequently employed. The general rule of agency is, that the representations and admis- sions of agents bind the principal only when they are made while the agent is acting within the actual or apparent scope of his author- ity.^^ It is also well settled that the declarations concerning a fact in dispute are admissible as part of the res gestae only when they explain and are contemporaneous with such fact and are made with- out any preparation.^^ In accordance with this rule, where a tele- graph company is being sued for a breach of contract, the subsequent acts and declarations of the company's agent, unconnected with the performance of the contract, are not admissible. § 696. Notice by telegram. Where a statute requires notice to be given in writing, it has been held that such notice, sent by means of a telegram, was a sufficient ** Gray on Tel., § 134. The author duced or its absence satisfactorily ac- gives the following for the reason of counted for before oral testimony is the rule: "The delivery of an altered admissible. This distinction is due to message by a telegraph company causes the following cause: In the former at times two distinctly different losses. action, the question in issue is whether It injures the sender, in depriving him the correct message was delivered; in of the benefit that he would have de- the latter, what was the correct mes- rived through the due and correct com- sage delivered. In the former, the con- munication of his message; it injures tents of the delivered message, what- the receiver, in causing him to act to ever they may be, are simply evidence his detriment upon an altered message, that the correct message was not de- In an action for the former injury, the livered ; in the latter, they are them- fact that the authorized message was selves to be proved, since the action not delivered may be proved by oral is based upon the exact difference be- testimony, without accounting for the tween the contents of the message de- absence of the delivered message, livered and those of the message au- showing the exact alteration. In an thorized." action for the latter injury, however, "Story on Agency, §§ 134-137. the delivered message must be pro- ^^ Best oh Ev. (7 Ed.), § 495. <^ 697] COMMUNICATIONS AS EVIDENCE. 663 compliance with such statiite.^'^ Thus, where the clerk adjourns court in accordance to an order, sent hy means of a telegram, it may be held a sufficient compliance with a statute requiring notice to be in writing.®^ But a notice conveyed by means of a telephone is a ver- bal one and is, therefore, insufficient under a statute requiring notice to be in writing.^^ This is the holding both in the state and federal courts, and is also the ruling in the English courts.®*^ § 697. Telephone communication as evidence. Conversations carried on by means of a telephone do not differ in their essential characteristics from those carried on verbally.^ ^ The only apparent difference is, that the parties conversing are further apart; there is generally no difference in the tone of their voices. The telephone is merely a medium by which they are brought to- gether in voice, although far apart in person. The rule of evidence with respect to the admission of oral statements made in an ordinary conversation is generally applicable to conversations of this na- ture.'^- Thus, an acknowledgment of a deed made to a notary over a telephone was held valid, the identity of the party making the ae- " Georgia.— West. U. Tel. Co. v. ^ Sehofield v. Horse Spring Cattle Bailey, 115 Ga. 725, 42 S. E. 89, 61 L. Co., 65 Fed. 433, testing stat., § 672. R. A. 933n (notice of writ of certio- V. S. Rev. rari). »°Ex parte Apelir, 35 S. Car. 417: Illinois. — Morgan v. People, 59 111. South Carolina Code of Civil Proced- 58. lire, § 408; Schofield v. Horse Spring Indiana. — Kaufman v. Wilson, 29 Cattle Co., 65 Fed. 433. Ind. 504. "Young v. Seattle Transfer Co., 33 loua. — State v. Holmes, 56 Iowa Wash. 225, 74 Pac. 375, 99 Am. St. 588, 9 N. W. 894, 41 Am. Rep. 121. Rep. 942, 63 L. R. A. 988. yeio Jersey. — Cape May, etc., R. Co. ^ Globe Printing Co. v. State, 23 Mo. V. Johnson, 35 N. J. Eq. 422. App. 451; People v. Ward, 3 N. Y. United States. — Schofield v. Horse Grim. 483; Young v. Seattle Transfer Spring Cattle Co., 05 Fed. 433. Co., 33 Wash. 225, 74 Pae. 375, 99 Am. Enffland.—ilaywood v. Wait, 18 W. St. Rep. 942, 63 L. R. A. 988; ShaAvyer R. 205; Tomkinson v. Cartledge, 22 v. Chamberlin, 113 Iowa 742, 84 X. \A'. Alb. L. J. 1231; In re Bryant, 4 ch. D. 061, 86 Am. St. Rep. 41. See, also. 98, 35 L. 7 U. S. 489, 25 W. R. 230; Gait v. Woliver, 103 111. App. 71; Da^ Ex. p. Langley, 13 Ch. D. 110, 28 W. menville v. Leonard. 8 Ohio Civ. Dec. R. 174. 735, 15 Ohio Civ. Ct. 686; Southwork **Stato v. Holmes, 56 Iowa 588, 9 Nat. Bank v. Smith, 21 Pa. Co. Ct. 1, X. W. 894, 41 Am. Rep. 121. 7 Pa. Dist. 182. 664 TELEGRAPH AND TELEPHONE COMPANIES. [§ 69- knowledgnient being clear.^^ In a criminal case, where a witness tes- tifies that he called up a certain person over the telephone and rec- ognized his voice in talking to him, he may give in evidence the com- munication which the other party made to him.''* § 698. Indentity of person. In order for the rule to hold good, the identity of the person must be shown by the party offering to produce such communication as evidence. This may be done by direct or circumstantial evidence, and it is not necessary that the voice of either person be recognized, but if the identity of the person conversing be shown, this will be sufficient.^^ The identity of the person may be shown by a person who had a previous conversation wath the defendant in a similar manner ;^° but the plaintiff cannot, in support of his statement of "Banning v. Banning, 80 Cal. 271, 22 Pac. 210, 13 Am. St. Rep. 156. "People V. Ward, 3 N. Y. Crim. 483; Young v. Seattle Transfer Co., 33 Wash. 225, 74 Pac. 375, 99 Am. St. Rep. 942, 63 L. R. A. 988. See note 92 for further cases. »' In Young v. Seattle Transfer Co., 33 Wash. 225, 74 Pac. 375, 99 Am. St. Rep. 945, 63 L. R. A. 988. The court said: "When material to the issue, communication through the medium of the telephone may be shown in the same manner, and with like effect as conversations had between individuals face to face, but the identity of the party sought to be charged with a li- ability must be established by some testimony, either direct or circumstan- tial. It is not always necessary that the voice of the party answering, or of either party, for that matter, be recog- nized by the other in such conversa- tions, but the identity of the person or persons holding the conversation, in or- der to fix a liability upon them or their principals, must in some manner be shown. To hold parties responsible for answers made by unidentified per- sons in response to call at the tele- phone from their ofiices or places of business concerning their affairs, opens the door for fraud and imposition, and establishes a dangerous precedent, which is not sanctioned by any rule of law or principle of ethics of which we are aware. A party relying or acting upon a communication of that charac- ter takes the risk of establishing, the identity of the person conversing with him at the other end of the line." °«In the case of Globe Print. Co. v. Stahl, 23 Mo. App. 451, the court said: "The sole question which arises upon the record is whether the court erred in admitting evidence of a con- versation heard through a telephone between the plaintiff's bookkeeper and a person who answers to the defend- ant's name. The bookkeeper testifies that he called up by telephone to the general office of the Bell Telephone Company for the defendant's number, and was, by the central office, con- nected therewith; that the list of the telephone company showed that the (Icfondant had two telephones, one at his luidcrtaking establishment on § 698] COMMUNICATIONS AS EVIDENCE. 66; such conversation, prove that he repeated at the time to a third per- son the answer received over a telephone."" It is true that a party may be misled by a conversation over a telephone. The acts and ex- pressions of the person talking may be often followed in ascertaining what he means, and this, of course, cannot be considered while com- municating by means of the telephone. But, in an ordinary and natural conversation, the identity of the person may be established by means of hearing such person talk, or other circumstances, quite as readily though possibly not as certainly as if he had seen such person.^^ The fact that the witness, who testifies to a conver- sation between himself and another, did not recognize the other's voice does not affect the admissibility of his evidence but only its weight.^^ The same rule applies to a case where the witness, in an action against a carrier, testifies that he demanded the goods in ques- tion from the defendant's agent, throndi tlie telephone, but that lie Franklin avonue, in the city of St. Louis, and the other at his livery sta- ble, on Olive street; that witness was not certain which number he called, but that his best recollection was that it was the Olive street number; that there was an answer from the de- fendant's number, to tho telephone call: that he (the witness) did not know whose voice it was, and does not know; that the witness did not know the defendant's voice and did not know the defendant, but that he asked, through the telephone, if that was Stahl (the defendant) and the answer was 'Yes.' The witness was then asked to give the conversation then had through the telephone with the party answering the call. In response to this question the witness testified, against the objection of the defendant, 'that he asked why defendant did not pay the bill for which this suit was brought, and that tlie party answer- ing said, "All right : I will attend to the matter about the first of the month.'" ' A previous witness had tes- tified for the plaint ifT to a conversa- tion through the telephone in a sim- ilar manner with the defendant, whose voice the former witness identified. The court ruled that the testimony was admissible. "German Savings Bank v. Citizens' Nat. Bank, 101 Iowa 530, 70 N. W. 769, 03 Am. St. Rep. 399. See. also, ilissouri Pac. R. Co. v. Heibenheimer, 82 Tex. 195, 27 Am. St. Rep. S61 : Cent. U. Tel. Co. v. Falley, 11« Tnd. 194, 10 Am. St. Rep. 135. °*Shawyer v. Chamberlain, 113 Iowa 742. 84 X. W. 661, 86 Am. St. Rep. 411; Wolf V. Missouri Pac. R. Co.. 97 Mo. 473, 3 L. R. A. 539, 10 Am. St. Rep. 331. 11 S. W. 718; Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rep. 901. See German Savings Bank v. Cit- izens' Nat. Bank, 101 Iowa 530, 63 Am. St. Rep. 399, 70 N. W. 769. »" Wolf V. Missouri Pac. R. Co., 97 Mo. 473, 3 L. R. A. 539. 10 Am. St. Rep. 331 ; Globe Print. Co. v. Stahl. 23 Mo. App. 451. 666 TELEGRAPH AND TELEPHONE COMPANIES. [§ 698 did not remember the name of the agent on whom he made the de- mand ; ^^'^ or, at which office, where the defendant had two, he had called. ^°i § 699. When operator converses. Where two parties desire to communicate by means of a telephone, but on account of inexperience in the use of a 'phone, or on account of atmospheric hindrance, one of them is unable to carry on his part of the conversation, whereby an operator in the employ of the com- pany at the other end of the line is called on to carry on the con- versation, he is deemed the agent of the party who invokes his aid and is competent to prove the message or conversation by his prin- cipal. ^°- If such operator has forgotten what was said in the conver- sation, it may be proved by Avitnesses who heard him when the state- ments were made to the party for whom he was conversing. ^*^^ It seems that the identity of the person at the other end of the line may be proven by such operator whether he was acting as agent in such 1°" Missouri Pac. E. Co. v. Heiden- beimer, 82 Tex. 195, 27 Am. St. Rep. 861. See, also, Rock Island, etc., R. Co. V. Potter, 36 111. App. 590. "1 Globe Print. Co. v. Stabl, 23 Mo. App. 451. "2 Sullivan v. Kuykendall, 82 Ky. 483, 56 Am. Rop. 901. In tbis case tbe parties did not have a conversation di- rectly witb each other over tbe tele- phone, but the conversation was con- ducted by an operator in charge of a public telephone station at one end of the line. It was held that the conver- sation was admissible in evidence and that it was competent for the person receiving the message to state what the operator at the time reported as being said by the sender. The court in the opinion says: "When using the telephone, if he knows that he is talk- ing to the operator, he also knows that he is making him an agent to repeat what he is saying to another party; and, in such a case, certainly the statements of the operator are compe- tent, being the declarations of the agent, and made during the progress of the transaction. If he is ignorant whether he is talking to the person with whom he wishes to communicate or with the operator, or even any third party, yet he does it with the expec- tation and intention on his part that in case he is not talking with the one for whom the information was in- tended it will be communicated to that person; and he thereby makes the per- son receiving it his agent to commu- nicate what he might have said. This certainly should be the rule as to an operator, because the person using the telephone knows there is one at each station whose business it is to so act; and we think that the necessities of a growing business require this rule, and that it is sanctioned by the known rules of evidence." ^*^ Sullivan v. Kuykendall, 82 Ky. 483, 50 Am. Rep. 901. <^ 701] COMMUNICATIONS AS EVIDENCE. 667 conversation, or wlifthcr his voice was recognized in a casual Avay, while snch person was conversing with the party at the place at which the operator was stationed. § 700. Operator as interpreter. It is a general rule that where one, through an interpreter, makes statements to anotlier, the interpreter's statements, made at the time, of what was said, are competent evidence against the party. The interpreter need not be called to prove it, but his statements made at the time may be proved by third persons who were present and heard it.^°^ The reason of the rule is, that the interpreter is the agent of both parties and acting at the time within the scope of his au- thority. So, it has been held that when an operator at some interme- diate point on the line volunteers to aid and assist two parties to con- verse over the line where they are prevented from talking themselves, each to each, by atmospheric hindrances, such operator, acts in the capacity of interpreter or as the agent for both parties, and state- ments made by one of such parties to such operator may be used against the other. ^''^ Such statements are not given as hearsay evi- dence, but are competent because it is the declaration of an agent made during the progress of a transaction in which he represents his principal. ^^^ § 701. Oaths admissible by means of telephone. Conversations can l>e carried on by means of the telephone almost as easily as if the parties were together, face to face. Of course, there may be some hindrances to prevent this, but as a usual thing, where the lines are in good working order, communication can be as easily effected by this means as by personal conversation ; and where the identity of either or both of the parties is known, there is no reason why the same business and legal transactions — where it is not nec- essary for the same to be in writing — may not be conducted by this means as easily as if the parties were together in person. For in- i^Camerlin v. Palmer Co., 10 Allen X. W. 718. 37 Am. St. Rep. 428, 17 539; Schcarer v. Harber, 3G Ind. 536; L. R. A. 440n. 1 Greenl. Ev.. § 183; 1 Phill. Ev. 519. '»• Id. '"'Oskamp v. Gadsen, 35 Neb. 7, 52 668 TELEGRAPH AXB TELEPIIO^'E COMPANIES. [§ 701 stance, in cities and towns, as is known, orders, sales, purchases and many other small business transactions are made almost exclusively by the telephone. Orders of the court- — where the same is not to be in writing — may be made through this means. We see no reason why an oath may not be administered by means of the telephone, where the identity of the party making same is known; and it has been held tliat an acknowledgment of a deed made to a notary over a telephone was valid, when the identity of the party making the acknowledgment was clear. ^°' If, however, it should be necessary for the party to attach his signature to the instrument of writing, at the time the acknowledgment should be administered, the rule would be otherwise. '"^Banning v. Banning, 80 Cal. 271, ing an affidavit against the farmer for 22 Pac. 210, 13 Am. St. Rep. 156. The said drunkenness telephoned him of act of an officer in taking acknowledg- such affidavit. The farmer plead guilty ments is judicial in its character, and over the telephone to the justice of the tlierefore cannot be impleaded collatev- peace and then a fine was imposed on ally: Murrell v. Diggs, 84 Va. 900, G him, he afterwards having remitted S. E. 461, 10 Am. St. Rep. 893. the fine by mail. We think that jus- A certain justice of the peace in tice was properly carried out in this Ohio having learned that a farmer had proceeding, been in town drunk, and after prepar- CHAPTER XXIX. TELEGRAPH MESSAGES IN RELATION TO THE STATUTE OF FRAUDS. § 702. Evidence. 703. Subject matter to which statute applies. 704. How statute may be satisfied. 705. Company — agent of sender. 706. Message delivered to company— effect of under statute of frauds. 707. Telegram delivered to addressee — effect under statute. 708. What telegram should contain. 709. Time of delivery with respect to making of contracts. 710. Written contracts adopted. § 702. Evidence. It is not the intention to give the histoiy of the statute of fraud.?, or to discuss the laws in general applicable, thereto, as this is a sub- ject foreign to his work, but to discuss only telegraphic messages as evidence, in relation to such statutes. The English statutes of frauds was enacted in 1676, under the title, '"An act for preventing of Frauds and Perjuries," ^ and has been adopted, in substance, in most if not all the American states. The fourth and seventeenth sec- tions of this statute affect contracts of sale, the former applying to "lands, tenements, and hereditiments, or any interest in or concern- ing them," and the latter to the sale of personal property ; or, in the language of the English statute, "any goods, wares, or merchandise, for the price of ten pounds sterling or upwards." It is these two sec- tions which are of special importance in connection with telegraph messages.^ 129 Car. Q. C. 3. be brought to charge an executor or ^iThe English Statute of Frauds and administrator upon any special prom- Perjuries, 29 Car. 11, c. 3, whose pro- isc to answer out of his own estate; visions have generally been adopted in or to charge the defendant upon any the United States, contains two sec- special promise to answer for the tions— the fourth and seventeenth— of debts, defaults, or miscarriage of an- especial importance in connection with other; or to charge any person upon telegraph messages. The fourth section an agreement made in consideration provides," in effect, that no action shall of marriage: or upon any contract or (669) 670 TELEGRAPH AND TELEPHONE COMPANIES. [§ 703 § 703. Subject matter to which statute applies. Prior to the enactment of the statute of frauds, all freehold estates in corporeal hereditiment could be created by livery of seizin, and all estates less than freehold by parol. The statute changed the law so that all such freehold estates created merely by livery of seizin, and all estates less than freehold (except leases for terms not exceeding three years whereon a rent of not less than two-thirds the full im- proved value was reserved, created merely by parol, have the effect only of estates at will, unless they are put in writing and signed by the grantor. The written instrument required by the statute must be a deed in the case of a freehold estate,^ but in the case of estates less than freehold, the instrument need not be made under seal ; ^ and a written agreement for a lease signed but not sealed has been held to amount to a lease unless it is otherwise intended by the parties.^ Where the subject-matter is concerning "goods, wares, or merchan- dise," a contract made in regard to same, "shall not be allowed to be good" except upon one of three conditions, namely: (1) The buyer shall accept part of the goods so sold, and actually receive the same ; (2) or give something in earnest to bind the bargain, or in part pay- ment; (3) or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such con- tract, or their agents thereunto lawfully authorized.^ sale of lands, tenements, or heredita- said bargain be made and signed by raents, or any interest in or concerning the parties to be charged by such con- them ; or upon any agreement that is tract or their agents thereunto law- not to be performed within the space fully authorized. of one year from the making thereof, ^Jackson v. Wood, 12 Johns (N. Y.) unless the agreement upon, which such 73; Stewart v. Clark, 13 Mete. (Mass.) action shall be brought, or some mem- 79. Some of the states have abolished orandum or note thereof, shall be in the requirement of a seal, writing and signed by the party to be * Lake v. Campbell, 18 111. 106; May- charged therewith or somo other per- berry v. Johnson, 3 Greene (N. J.) son thereunto by him lawfully author- 116; Hill v. Woodman, 14 Me. 38; Al- ized. The seventeenth section enacts, len v. Jaquish, 21 Wend. (N. Y. ) 628. in effect, that no contract for the sale " Baxter v. Brown, 2 W. Bl. 973 ; of any goods, wares, or merchandise, Goodlittle v. Way, 17 R. 735. See, for the price of ten pounds sterling, or also, Harrison v. Parmer, 76 Ala. 157. upwards, shall be allowed to be good • Langdell's Select Cases on Sales, imless, among other exceptions, some 1032-33. note or memorandum in writing of the (^ 705] THE STATUTE OF FKAUDS. '671 § 704. How statute may be satisfied. The statute may be satisfied eitlier by a written contract or by a sufficient memorandum evidencing the existence of an antecedent parol contract. There is a distinction between the contract itself and the "note or memorandum" evidencing its existence, and it is only when the contract is oral that it is necessary that there be a written memorandum. When the contract is oral and is to be evidenced by a memorandum, the latter must contain all the material and express terms of the contract, and must be signed by the party to be charged, or by a person or agent thereunto lawfully authorized by him.' § 705. Company — agent of sender. With reference to contracts entered into by an agent, the principal will be bound by any act made within the apparent limit of the agent's authority, without regard to the violation of any instructions, private in their nature, which the principal may have given the agent as to the manner of executing his authority. Such is the undoubted rule, and is sustained by almost all the authorities.^ The principal is bound by all the agent's acts. So, with respect to the making of a contract for said principal, all acts done in his behalf wdll be charged to the principal. It has been seen heretofore that contracts may be made betw^een two persons by the medium of the telegraph, and while the telegraph company may be considered, in a certain light, an independent contractor with respect to said con- tract, yet it is very generally held that it acts as agent for the party employing its services, or the one suggesting these means to consummate such contract. Therefore, this being the general rule, any act of the company in carrying out such contract will be bind- ing on the sender or the company's principal. ^Langdell's Select Cases on Sales, 104 Ind. 293, 54 Am. Rep. 319, 4 X. E. 1032-33. 20; Austrian v. Springer, 94 Mich. 8 Louisville Coffin Co. v. Stokes, 78 343, 34 Am. St. Rep. 350, 54 X. W. Ala. 372; Liddell v. Sohline, 55 Ark. Rep. 50; Potter v. Springfield :\Iilling 627, 17 S. W. 705; Hamill v: Ashley, Co., 75 Miss. 532, 25 So. 259; Gerhav.lt 11 Colo. 180, 17 Pac. 502; Paine v. v. Boatman's Sor. Inst., 38 Mo. 60, 90 Tillinghost, 52 Conn. 532; Lattomusv. Am. Dec. 407; Whiley v. Duncan. 47 Farmers Mut. F. Ins. Co., 3 Houst. S. C. 139, 25 S, E. Rep. 54. 404; Lake Shore, etc., R. Co. v, Foster, 672 TELKGKAPII AXD TET.EPHOXE C0:MPAXIES. [^ 706 § 706. Message delivered to company — effect of under statute of frauds. While an oral message may be delivered to a company to be trans- mitted and delivered, yet the general regulations of these companies require the message to be written and signed. Such regulations, as has been seen, are reasonable and enforcible. The question which presents itself under this subject is, Whether a written message, con- cerning a contract and containing all the material and express terms of the contract, is a sufficient memorandum, when delivered to the company for transmission, to satisfy the statute of frauds ? It has been so held.^ A memorandum is in the nature of an admission by the party to be charged, and it is not necessary, therefore, for it to be delivered to the other party in order for the contract to become effective. ^° The fact that the telegram is written in accordance to the regulations of the company, does not affect its validity as a mem- orandum. The act of employing the company and, consequently, the act of writing the message in compliance with the regulation of the company, is a voluntary act,^^ and is not an act done under du- ress. § 707. Telegram delivered to addressee — effect under statute. The next question which presents itself in considering this sub- ject is. Whether a telegram delivered by the company to the aed — written by the company? If the telegraph company is the agent of the sender, which may be the case, as stated in a pre- ceding section and which will be further considered, a delivery of such telegram by it will Ix' a sufficient compliance with the statute. But. on the other baud, if the company is not operating in the ca- pacity of agent for the sender, the rule would be otherwise. It is presumed tliat a telegraph company has written out the telegram at the place to w bich it was delivered in the exact words in w'hich it was • Iclivcrcd to such company for transmission, and when the latter is deemed the agent of the sender in delivering any, as distinguished from certain, messages, the message delivered, if it contain the ma- terial and express tenns of the contract, will satisfy the statute, al- though tlie message has been altered in its transmission. But if the company is only representing the sender as agent in delivering the message which it receives from him, the statute will be satisfied ?o lon^- as the message has not been altered, or when it conforms to the message which the company received. We shall hereafter speak more fully of contracts made through the medium of the telegraphy and how the statute of frauds is affected thereby. § 708. What telegram should contain. Whether or not a telegram, delivered to or by a telegraph company, contains sufficient memoranda of a contract to satisfy the statute of frauds, must be determined by the law applicable to the subject in general. Thus, generally speaking, the memorandum should contain, in substance, all the material parts of the contract, including the names, or a dcscrijitioii, of liotli parties;'- the subject-matter, which must be correctly stated;'"' the price, if actually agreed upon by the '-Cooper V. Smith, 15 East. 103; At A defective memorandum of sale len V. Bennett. 3 Fannt. 10!); Lincoln lannot be helped out by a telegram V. Eric Preserving Co.. 132 ^lass. 120; from one of the parties with which the McElroy v. Levey, (il Md. 307: Andcr- other is in no wise connected. J. K. son V. Harold. lt> oliio 390. Arnisby Co. v. Eckerly, 42 Mo. App. "Hazard v. Day. 14 Allen (Mass.) 200. 487, 02 .\u\. Die. 7!tO; May v. Ward. So, also, telegrams between a sher- 134 Mass. 127; McElroy v. l?uck. 35 iff and a third person are inadmissible Mich. 434. to show an agreement between a sher- T. & T.— 43 67-i TELEGEAPH AND TELEPHONE COMPANIES. [§ 709 parties;^"* the stipulations as to credit, and the time and place of pay- ment, if sucli tlicre be;^^ and any other terms and conditions which are a part of the contract. ^*^ In accordance with this rule, a tele- gi'am properly addressed and signed, in the following words, '^You may come on at once at a salary of two thousand dollars, conditional only upon satisfactory discharge of business," was held to be insuffi- cient as a memorandum to satisfy the statute, since it fixed no time for the continuance of the employment and did not even mention the nature of the employment itself.^'''' Telegrams which are sigTied by a person and relate to a contract but do not state its terms or condi- tions, are not sufficient to take the contract out of the statute, and a defective memorandum of sale cannot be helped out by a telegram from one of the parties with which the other is in nowise connected. So, also, telegrams between a sheriff and a third person are inadmis- sible to show an agreement between a sheriff and a county in rela- tion to the subject-matter ; and telegrams concerning the sale of prop- erty are not a sufficient memorandum under the statute, where it is impossible to tell from them exactly wdiat property is intended to be included, and the parties disagree as to what property is meant. § 709. Time of delivery with respect to making of contracts. It is not essential that the memorandum should be made -at the same time as the contract ;^^ nor is it necessary that all the terms of the contract should be noted at one time, or in one piece of paper; but it will suffice if the whole contract be in substance contained on separate, pieces, and these memoranda make such reference to each other as to show that they are parts of one whole. ^^ So, applying ill' and a county in relation to their v. Hickman. 20 Pa. St. 180; O'Niel v. subject-matter. Yavapie County v. Crane, 67 Mo. 250. O'Niel, 29 Pac. Rep. (Ari.) 430. '« Wright v. Weeks, 25 N. Y. 158; Telegrams concerning the sale of Xorris v. Blair, 39 Ind. 90; Williams property are not sufficient memoran- v. Robinson, 73 Me. 186. dum under the statute, where it is im- '"Riley v. Famsworth, 116 Mass. possible to tell from them exactly what 223; Oakman v. Rogers, 120 Mass. property is intended to be included 214. and the parties disagree as to what " Palmer v. M. P. Rollin.ij; ^lill Co., property is meant. Bcckenridge v. 32 Mich. 274. Crocket, 78 Cal. 529. '' Bird v. Munroe, 66 Me. 347. '* Smith V. Arnold, 5 Mason 416; « Peck v. Vandemark, 99 N. Y. 29; Phelps V. Stillings, 6 N. H. 505; Soles Jelks v. Barrett, 52 Miss. 315; Fisher V. Kuhn, 54 Miss. 480. <^ 710] THE STATUTE UE EltAUDS. 075 the rule to telegrams, it is not necessary that they be delivered at the time the contract was made/ nor is it necessary that all of the facts should be embraced in one message, but if they are made out properly on different telegraph blanks and signed by the sender, it is a sufficient compliance with the statute. § 710. Written contracts adopted. The statute of frauds is not affected by the parties mutually ac- cepting a written contract, as this is considered, under such statute, a contract in writing. Such contract cannot be varied by oral tes- timony, unless it was created by both written and oral communica- tion. In the latter instance, it is clear that the parties did not in- tend to create the contract by their mutual adoption,-^ and, in such cases, oral testimony should be admissible to prove the intent of the parties. In accordance with tliis rule, oral testimony of the terms of a contract to let a canal boat was admitted, although the message which finally completed the contract was in the following words: '*You may have barge Globe for $400, until October 1. Rent paya- ble half 1st July, and half 1st October."-^ A message of this de- scription is not sufficient as a memorandum to satisfy the statute and does not contain the terms of the oral contract ; and oral testimony should be admissible in such instances to show the meaning of the written communication.^^ =» Beach v. R. & D. B. Rd. Co., 37 -' Beach v. R. & D. B. Rd. Co., 37 X. Y. 451: X- Y. 457. -^McElroy v. Buck. 35 Mich. 434. CHAPTER XXX. TELEGRAPH MESSAGES AS PRIVILEGED COMMUNICATIONS. § 711. Introduction. 712. Same continued — in hands of telegraph compaaies. 713. Postal law not applicable to telegraph messages. 714. Same continued — would assist in illegal purposes. 715. Statutes forbidding disclosure of telegrams. 716. Same continued — not protected by postal laws. 717. When may be privileged communications. 718. Steps to obtain telegrams — in general. 719. Same continued — how further obtained — court inspection. 720. Rule for describing message in writ. 721. Same continued — illustrations — valid services. 722. Same continued — when invalid. § 711. Introduction. Having treated, in preceding chapters, of the manner of proving the contents of a telegraphic message, and when such satisfies the statute of Frauds, we shall now speak of such as privileged communi- cations. In discussing the subject, we shall attempt to treat it under two different views with respect to the person from whom a divul- gence of the message is sought; that is, whether the message is in the hands of the sender or addressee, or whether it is in the hands of the company. With respect to the first of these — whether a mes- sage in the hands of the sender or addressee is privileged communi- cation — we shall be very brief, since this question depends entirely upon the laws relating to privileged communications in general, and the fact that the communication was made by telegraph instead of some other way, does not change the rule. The mode of communica- tion has never been held to determine the question of privlege. § 712. Same continued — in hands of telegraph companies. It has been a very mooted (juestion whether a message in the hands of the telegraph company was a privileged communication. It was held in England, before the government got control of these compan- (676) (^ 713] PRIVILKOKIJ COMMUMCATIOXS. 677 ic's, that it was not;^ since that time, the earlier cases held that they were privileged cominuiiicatioiis,- but the latter decisions hold them not to be privileged.^ This (piestion lias Ix-eii more tlioroughly dis- cussed in the courts of our country, and it has been very generally held that such communications were not jirivileged. Those who urge that the messages, in the hands of the telegrajdi company, are privi- leged eonnnunications, do not niiciiipi u> support their reasons upon the rtdationship of the parties, or the subject-matter of the messages, or u])on the confidential nature of the communication. They base their reasons either upon the ground of public policy which sustain those legal statutes of the United States, which in effect, give in- violability to postal communications, or upon particular statutes giv- ing inviolability to telegraph messages in the hands of telegraph com- panies. We shall treat these briefly in separate sections. § 713. Postal lavi^ not applicable to telegraph messages. Able writers have taken the position that the law which protects the contents of communications made through the United States mail should :i]ip]y to eomniuuieations made by the medium of telegTaphy, as the connmmications nuide by the latter means were oftner as great in importance as those sent by mail.^ Granting this to be the case, »The Coventi-y Case, 1 O'M. & H. 97, "1. That it defeats tlie policy of 104; The Bridgwater Case, 1 O'M. & the law, which invites free communica- H. 112. tion. and to the extent that it may -The Taniston Case, 2 O'^l. & H. discourage correspondence, it operates (i(i: The Stroud Case. 2 O'^I. & H. 107, as a restraint upon industry and en- 110. terprise, and, what is equal impor- *The Bolton Case, 2 O'M. & II. tance, upon intimate social and fam- 138; The Horwich Case, 3 O'M. & H. ily correspondence. 61, 62; Toraline tSk Tyler, 44 L. T. X. "2. It violates the confidence which S. 187. tlio law undertakes to render secure, * In IS Am. L. Reg. 65, et seq., Mr. and makes the promise of the law a Cooley discusses the subject and con- deception. tends for a rule opposed to that of the "3. It seeks to rcacli a species of text. He announces, in conclusion. evidence which, from the very course that the doctrine that telegraph au- of the business, parties are interested thorities may be required by legal pro- to render blind and misleading, and cess to protluce private messages upon which, therefore, nnist often present us the application of third persons, is ob- with error in the guise of truth, un- jected to on the following grounds: der circumstances which precludes a discovery of the deception. 678 TELEGRAPH AND TELEPHONE COMPANIES. [§ 713 it is a question to be settled by the legislative and not by the judicial branch of the government.^ As seen, the government has control of the postal system, and, for this reason, it has legislated upon the sub- ject, and it is not, therefore, an assumption of a legislative power for the courts to consider questions arising under this subject; but it would be if they should consider a subject not embraced in the postal laws. There is also a difference in the amount of information de- rived from the communications sent by these two instrumentalities of news communicators, and this should be a reason for not permitting communications sent by telegraph to be protected by the postal law^s. AIL the information obtained from the contents of a communication sent by mail, is such as may be seen from the wrapper or envelope, while, on the other hand, a telegraph company acquires full knowl- edge of the contents of messages entrusted to it for transmission. If a court desires to obtain information of certain communications sent by telegTaph, it may secure this from the company without exposing other communications, but the same information could not be ob- tained from the United States mail without divulging, perhaps,many other communications whose secrecy, immaterial for any purposes of justice, might be of the utmost importance to the parties. § 714. Same continued — would assist in illegal purposes. As we all know, and as it has often been stated at other places in this work, telegraph companies have become great factors in the com- mercial world, and the news transmitted by means of those instru- mentalities concern matters of almost every description. It is the quickest way of accomplishing business transactions at distant points, 'In Ex. p. Brown, 72 ]\To. 91, 37 Am. Cdiisideration of the 'lefjislative branch Rep. 426, the court said : "The fact that of the government in determining the railroad trains orders are generally propriety of placing telegraph commii- communicated by telegraph, that a nications on the same footing with vast amount of trade and traffic is correspondence by mail, or declaring transacted through this medium, that them privileged; but the annuncia- it has become of almost equal impor- tion of such a doctrine by the court tance in the commerce of this country would be an assumption of power with the postal system, and that in which belongs to the legislative de- a business sense men are compelled to jiartment." communicate by telegraph, are for the § 715] PRIVILEGED COMMUXICATIONS. 671) If, then, communications sent by means of telegraphy were allowed to be privileged communications, many criminal acts would be con- summated by means of these companies. The criminal would com- municate the news concerning his crime, knowing at the time that the company could not divulge the same.° Of course, the company could refuse, as has been seen, to transmit news concerning illegal purposes, but it is not every time that the company knows of the il- legal nature of the communication. While the same criminal object may be accomplished by communications through the mail, yet other secrets and communications would be divulged, as stated elsewhere, if the courts should attempt to obtain the information concerning this particular charge from mail matters. This view, however, has been assailed by Mr. Cooley in a very able discussion on the subject.'^ § 715. Statutes forbidding disclosure of telegrams. There are statutes in some of the states which forbid, under pen- alty, the disclosure of telegrams by telegraph companies.® It seems, however, from a penisal of most of the statutes on this subject, that there are few which prohibit the disclosure of the contents of tele- ' In State v. Litchfield, 58 Me. 200, tractive to tlie well-being of society, the court, said: "Nor can telegraphic a state of things rendering its useful- communications be deemed any more ness at least questionable. The cor- confidential tlian any other communi- respondence of the traitor, the murder- cations. Thej^ are not to be protected er, the robber, and the s\\ indler, by to aid the robber or assassin in the con- means of which their crimes and frauds summation of their felonies, or to fa- could be the more readily accomplished cilitate their escape after the crime and their detection and punishment has been committed. Telegraphic avoided, would become things so sacred companies cannot rightfully claim that they could never become accessi- that the messages of rogues and crim- be to public justice, however deep inals, which they may innocently or might be the public interest involved ignorantlj' transmit, should be with- in their production." held whenever the cause of justice ren- ' 18 Am. L. Reg. 72. ders their production necessary." *Code of Tenn. §1501-2: Code of In Ilenisler V. Friedman, 2 Pars. Sel. ]Miss. (1892) §1301: Laws of Nor. Cas. (Pa.) 274, it is said in ordering Car. (1889) Ch. 41, p. 01;; Public acts the production of a telegram: "The Conn. (1889) Ch. 30, p. 18; Wisconsin telegraph may be used with the most Rev. Stat. §4557; Iowa Code §1328. absolute security for purposes dis- 680 TELEGRAPH AND TELEPHONE COMPANIES. [§ 715 grams while in the liaiuls of the tek'graph company. While there is a difference between some of these statutes, yet there is a similarity in them all ; and, for the reason that there is a difference in some of them in some respect, it would be difficult to lay down a rule which would be applicable to all. So, we would therefore suggest that the statute under which the cause arises be consulted. In some of these the provision of the statute is against a disclosure of the con- tents of such telegrams, except to a court of justice. In a great num- ber of them the provision is against a willful or intentional or an unlawful disclosure of the contents of such telegrams, and the pen- alty is generally imi)Osed on the person and not the company making the disclosure. In others, the provision stands unqualified. It will be seen from a further perusal of these statutes that none of the pro- visions therein prohibit the company from disclosing the contents of such telegrams when legally summoned for that purpose into a court of justice. The first-mentioned statutes provided that they should not be disclosed except to a court of justice ; this fact, then, does away with the question of privileged comnninication. Where a telegraph company discloses the contents of a telegram in a court, in obedience to a subpoena duces tecum, this would be a lawful and compulsory disclosure, and not an intentional, willful or unlawful disclosure as meant in the second mentioned statute. The same rule would apply when the provisions of the statute stand unqualified since in the construction of such enactment, an exception in favor of due legal process is always implied.'' § 716. Same continued — not protected by postal laws. It has been said in a previous section that the contents of mes- sages in the hands of telegraph companies were not, in the absence of statutes to that effect, protected under the principle of public pol- icy similar to that which exists in favor of letters sent through the mail. While there is a difference of opinion on the subject, the better view is that these statutory provisions do not change the rule. "There is no such analogy between the transmission of communications by mail, and their transmission by telegraph, as would justify the appli- cation to the latter of the ])rinciples which obtain in respect to the '-' Brown Ex. parte, 7 Mo. App. 484. § 717] PKIVILKGED COMMUNICATIONS. 681 former; and crrtainlv penal statutes relating to the one, cannot by the courts 1)e declared applicable to the other."^" § 717. When may be privileged communications. The question which next presents itself is, Is a telegram in the hands of the telegra])h company ever a privileged communication? It is very evident that a message which is not a privileged communi- cation in the liands of the parties to it, is not a ])rivileged communi- tion in the hands of a telegi-aph company ; " but where a message is a privileged conmiunication in the hands of the parties to it, the ques- tion is not quite so clear. In other words, communications between husband and wife, attorney and client, and physician and patient are privileged communications while such remain imdisclosed ; but as soon as there is a disclosure of such communciations to a third per- son, the latter is under no obligation, with respect to the priviledge accorded under this rule of law, to retain such. Then, when a dis- closure of such a communication is made to a tclegi-aph company for transmission, does such a disclosure fall under disclosures made to a third persons as above stated ? It very clearly does not. There is an exception to the above rule, and it is under this that the question can be negatively answered. Privileged communications do not lose their privilege in the hand of another who was informed of such merely as a necessary means of affecting them. Thus, a privileged communication between attorney and client does not lose its privilege in the hands of an interpreter whose aid was necessary to affect it/- and it is under this exception that a privileged communication in the hands of a telegraph company, simply as a means of affecting its pur- pose, is a privileged communication and cannot therefore be dis- closed.^^ "E\-. p. Brown 72 Mo. 01, 37 Am. Va. 546; In restorer, 63 Fed. 564. See. Rep. 426; Ex. p. Brown, 7 Mo. App. also, U. S. v. Hunter, 15 Fed. 712: U. 484, 72 ]Mo. 8.'}, 37 Am. Rep. 426; S. v. Babcock, 3 Dill. (U. S.) 566. Woods V. Miller, 55 Iowa 168, 39 Am. "Leslie v. Harvey. 15 L. C. .Jur. 'J. Rep. 170; Com. v. .Jeflfries. 7 Allen '- Bemberry v. Bemherry. 2 Beor. 173 ; (Mass.) 548, 83 Am. Dec. 712; Henis- 1 Greene on Ed. §239. ler V. Friedman, 2 Pars. Sel. Cas. (Pa.). '='2 Br's. Purd. Dig. §§2, 3. 274; Nat. Bank v. Xat. Bank, 7 W. 682 TELEGRAPH AND TELEPHONE COrMPANIES. [^ 718 § 718. Steps to obtain telegrams — in general. Having considered the question whether telegrams in the hands of telegraph" companies are privileged communications, and showing that they are not so considered, we shall now proceed to discuss the subject as to how they may be obtained from these companies in or- der that their contents may be disclosed in a court of justice. There have been different methods pursued to obtain private writings or documents which are in the hands of others, for the purpose of pro- ducing them in courts as material evidence of an issue involved. In equity, it has been held that a bill of discovery was the proper method ' to obtain these writings ; and at common law, the plaintiff in a case could obtain these writings; and at common law, the plaintiff in a case could obtain an order to inspect the private documents in the hands of another for the purpose of preparing his pleadings.^'* He could, also, under the common law procedure, serve notice on the person in whose possession the documents were, to present such in court. Yet, this method would not compel the person to protect such documents, but would only lay a ground for secondary evidence. The general and most common method pursued, where it is desired that the document shall be produced in court as evidence in the case at issue, is by summoning the person in whose possession the documents are, to come into court and bring such documents particularly des- cribed. The process is most generally a subpeona duces tecum. Where the documentary evidence is in the hands of one of the parties to the suit, whether such party is a telegi-aph company or some individual, the description of such document offers no peculiarity in their appli- cation to telegi-aph' messages; but if such person, possessing these documents, is not a party to the suit and is compelled under a sub- poena duces tecum to produce such in court, there is a peculiarity in its practical application to telegraph messages in the hands of tele- graph companies. Under the first kind, the description of the doc- ument in the subpoena duces tecvmi must be made with reasonable certainty but no greater degree of particularity will be required than is practicable under all the circumstances.^^ Under the latter rule it is " Wharton on Ed. § 742. Morris v. Hermen, 1 C. & M. 29 ; 41 "U. S. V. Babcock, 3 Dill. (U. S.) E. 0. L. 22. 566; Lee v. Augas L. R. 2 Eq. 59; (^ 720] PRIVILEGED COMMUNICATIONS. 683 different. Telegraph companies are in possession of innumerable documents and messages, and in order that matters irrelevent to tlie point at issue shall not be disclosed, the subpoena duces tecum should describe the message desired with the greatest degree of certainty. § 719. Same continued — how further obtained— court inspection. To obtain documents in evidence, under a subpoena duces tecum, a description, if possible, of such document should be made with such reasonable certainty as will not necessitate the production of other documents in court not relevant to the matter at issue. This often becomes a difficult matter, especially with respect to telegrams in the hands of telegraph companies. As said, a telegram in the hands of the parties to it, is as much their private writings as letters or other sim- ilar private documents ; and because they are in the hands of the com- panies for transmission, does not cause the privacies of these to be lost and they can only be obtained by a proper legal process. They must, therefore be relevant to the matter at issue before they can be obtained under a subpoena duces tecum. Documents in the hands of private per- sons or corporations may not be so difficult of description, but the number of telegi'ams in the hands of telegraph companies are general- ly so very numerous that a rule describing the certainty with which tiie documents in the hands of the first kind, would doubtless be so comprehensive as to embrace many messages which would be irrele- V9nt to the matter at issue ; so the rule in this respect should there- • f or6 be more specific. It is true, as stated, that it is difficult to des- cribe the documents or telegrams in the hands of telegraph companies with such accuracy every time as to prevent the production of some which are irrelevent, but the greatest degree of accuracy under the circumstances should be made ; and if there should be some such pro- duced with those relevent to the issue, the court, on inspection of same, should not admit their disclosure in evidence. § 720. Rule for describing message in writ. This question is a matter of such great difficulty of comprehension that the courts are not at all hai-monious in their opinions, and it has, theretofore, become almost impossible to lay down a fixed rule which 6S4 TELEGRAPH AXD TELEPHONE COMPANIES. \_^ 720 would be applicable in cverv particular case, but each case must be considered somewhat alone. In nearly every case where the party who has the writ issued cannot specify with accuracy, messages relevant to the matter at issue, yet he generally knows the names of the parties to the messages, the places from and to which they are sent, the sub- ject-matter about which they have reference, and the time of send- ing. If, then, these writs contain with reasonable certainty these es- sential facts, the company will have sufficient notice as to what mes- sages are desired and can, therefore, be compelled to produce such in a court of justice. In accordance with this rule, the following illustrated cases may tend to further show when the specifications contained in these Avrits are valid and when invalid. § 721. Same continued — illustrations — valid services. A writ of duces tecum served upon a telegraph company, containing the following demands for messages, was deemed valid :^^ "Copies of all telegTams received through the office of the Western Union TelegTaph Company at Long Branch, in the State of jSTew Jersey, from June 15 to Sept. 15, 1874, and from Jime 15 to September, 1875, addressed to General C. E. Babcock, signed John McDonald, John A. Joyce, John, or J., with books showing the delivery of the same ; all telegTams sent from Long Branch through said office dur- ing said months, signed O. E. Babcock, O. E. B., Bab., or B., ad- dressed to John McDonald, or John A. Joyce, St. Louis, Mo., or Ripon, "Wisconsin ; all telegrams sent through the office of said com- pany at the City of 'New York upon the 9th, 10th, or 12th days of December, 1874, signed John McDonald, John Mac, or Mc, address- ed to John A. Joyce, St. Louis, Mo., or General O. E. Babcock, Wash- ington, D. C. ; also, copies of all telegrams received at the City of l^ew York, from said City of St. Louis, on the 26th, 27th, 28th, and 20th days of October, 1874, addressed to Mr. John A. Joyce, Mrs. Kate Joyce, Kate Joyce, or Kate M. Joyce, together with books show- ing delivery of same." '•U. S. V. Babcock, 3 Dill. (U. S.) 566. <§ 722] I'KIVILEGED COMMUXICATIONS. 685 § 722. Same continued — when invalid. On the otlier lumd, a writ containing' the following demand for messages was held invalid:*" ^'Dispatches between Dr. J. C. Xidelet and A. B. Wakefield, and William Ladd and J. C. Xidelet, and Wil- liam Ladd and Dr. Xidelet, between Wiirnii McChester and A. B. Wakefield, between Warren McChester and J. C. Xidelet, between the latter and John S. Phelp.s, between A. B. Wakefield and John S. Phelps, between the latter and William Ladd, and between George W. Anderson and A. B. Wakefield, sent or received by or between any or all of said parties, within fifteen months last past." Again, a Avrit containing a demand for all messages sent from or received at a certain telegTa])h office between the sixth and twentieth days incln- sive of a certain iiionth, was deemed to be invalid. "Brown Ex. parte. 72 Mo. 83, over- ruling, 7 Mo. App. 484. CHAPTER XXXI. CONTRACTS BY TELEGRAM. § 723. In general. 724. Alteration of telegram does not affect rule. "725. When not the result of the company's negligence. 726. Same continued — private institution — does not effect. 727. What must contain. 728. When offer is complete. 729. Order made by telegram. 730. Communication both by post and telegraph. 731. When contracts take effect. 732. There must be a distinct and definite offer. 733. Offer requiring actual receipt of acceptance. 734. Same continued — how request implied. 735. Acceptance must be made within time. 736. Revocation of offer. 737. Contract — what law governs. 738. Telegraph company ordinarily the agent of sender. 739. Sender bound on message as received. 740. Within the meaning of the statute of frauds. 741. Exception to the rule. 742. English rule. 743. Telegraph company an independent contractor. 744. Same continued — may be sued. § 723. In general. In creating a contract, the negotiations pertaining to same may be conducted by letter, as is very common in mercantile transactions.^ The contract is complete when the an.swer, containing the acceptance of a distinct proposition, is dispatched by mail or otherwise, pro- vided it is done with due diligence after the receipt of the letter con- taining the proposal, and before any intimation is received that the offer has been withdra^vm. Mailing the answer containing the ac- ceptance and thus placing it beyond the control of the party, is valid as a constructive notice.^ As has been seen, there is no material dif- ^ Kimball v. Moreland, .55 Ga. 164: 382; Patrick v. Bowman, 149 U. S. 411, Dana v. Short, 81 111. 468; Thomas L. 13 St. Ct. Rep. 866, 37 L. Ed. 790. & T. Co. v. Beville, 100 Ind. 309; Col- '2 Kent Com. 12th Ed. 477. lege Mill Co. v. Fidler,58 S. W. (Tenn.) (686) ^ 724] COXTKACTS BY TELEGRAM, 687 fereiico in communications carried on by telegraph and correspond- ence conducted through the mail ; it is, therefore, generally held, that the same law is applicable to both.^ These facts being true, there is no reason — and it is generally so held ^ — why contracts cannot be as easily negotiated by the medium of the telegraph as through the mail, and be governed by the same rules of law applicable to the latter.'* § 724. Alteration of telegram does not affect rule. It is true that the terms of a contract are more liable to be changed or altered if conveyed by telegram than they would be should they 'Illinois. — Haas v. Myers, 111 111. 421, 53 Am. Eep. 034; Cobb v. Force, 38 111. App. 255. Indiana. — Miller v. Nugent, 12 Ind. App. 348, 40 X. E. 282. Kentucky. — Calhoun v. Atchinson, 4 Bush 261, 96 Am. Dec. 299. Maine. — True v. International Tel. Co., 60 Me. 9, 11 Am. Rep. 156. Maryland. — Curtis v. Gibney, 59 Md. 131. Missouri. — Whaley v. Hinchnian, 22 Mo. App. 483. ^eio Jersey. — ^Hallock v. Commercial Ins. Co., 26 N. J. L. 268. ' New York. — Beach v. Raritan, etc., R.'Co., 37 N. Y. 457; Schouberg v. Chemy, 3 Hun 677; Trevor v. Wood 41 Barb. 255 (reversed in 36 N. Y. 307, 1 Transcr. App. 248, 93 Am. Dec. 511); Marshall v. Eisen Vineyard Co., 7 :\Iisc. 674, 28 N. Y. Sup. 62, 58 N. Y. St. 375. Tennessee. — College Mill Co. v. Fed- ler, 58 S. W. 382. United States. — ^Minnesota Linseed Oil Co. v. Collier White Lead Co., 4 Dill. 431, 17 Fed. Cas. No. 9035. England. — Stevenson v. ilcLean, 5 Q. B. D. 346, 49 L. J. Q. B. 701. 42 L. T. Rep. U. S. 897. Canada. — Thorne v. Barwick, 10 U. C. C. P. 369; Marshall v. Jamison, 42 U. C. Q. D. 115. *Meinett v. Snow, 3 Idaho 112; Rob- inson Match Works v. Chandler, 575; Richmond v. Sandburg, 77 Iowa 255, 42 N. W. 184; Post v. Davis, 7 Kan. App. 217; Franklin Bank v. Lynch, 52 Md. 279, 36 Am. Rep. 375; Brawer v. Show, 168 Mass. 198, 46 N. E. 617, 60 Am. St. Rep. 387; Taylor v. Steam- boat Robert Campbell, 20 Mo. 254 ; Hammond v. Beeson, 15 S. W. (Mo.) 1000; Isaac Joseph Iron Co. v. Rich- ardson, 38 U. N. C. (Pa.) 487; Eckert V. Schoch, 155 Pa. St. 530; 26 Atl. 654; Short V. Thredgill, 3 Tex. App. Cas. 206; Duble v. Botts, 38 Tex. 312; Durkee v. Vermont Cent. R. Co., 29 Vt. 127; Wells v. Milwaukee, etc., R. Co., 30 Wis. 605; Saveland v. Green, 40 Wis. 431 ; Utley v. Donaldson, 94 U. S. 29; Alford v. Wilson, 20 Fed. 96; Central Trust Co. v. Wabash, etc., R. Co., 38 Fed. 561 ; Garrettson v. Atchi- son Bank, 39 Fed. 103, 7 L. R. A. 428, 47 Fed. 867, affd. (C. C. A.) 51 Fed. 168; Schultz v. Phoenix Ins. Co., 77 Fed 375; Andrews v. Schrieber, 93 Fed. 367. " Minnesota Linseed Oil Co. v. Collier White Lead Co., 4 Dill. (U. S.) 431; Trevour v. Wood, 30 N. Y. 307, 93 Am. Dec. 511; Shaveland v. Green, 40 Wis. 431. 68S TELEGRAPH AXD TELEPHO^fE COMPANIES. [<§, 724 be sent by mail. In the course of communication of news by tele- gram, there are many hindrances to be encountered which are often unavoidable. The wires of the company may often become heavily charged with electricity as a result of an abnormal atmospheric condi- tion, and this fact always has the effect of disturbing the communica- tion of news so as to prevent a correct transmission ; the same effect will be produced as a result of the wires being covered with ice or sleet, or when they have become crossed. So, also, the communication conducted by the latter means is more often interfered with by acts of the public enemy, or by strikes of the company's employees. It is also a more difficult way of transmitting news, and unless the employees are skilled and experienced workmen, alterations or changes in the messages are more likely to be made than if the same had been communicated by mail. The fact that an alternation has been made does not, however, change the application of the law to •these. The messages as delivered to the addressee contains the terms of the contract upon which he must act, provided the same is done in good faith. While the sender of the message is bound by the terms of the contract as received, yet he may have recourse against the com- pany for negligently transmitting the message.® § 725. When not the result of the company's negligence. It must be understood, that the above rule only applies where the alteration of the telegram has been the result of the negligent act of the company in transmission and such as it would be liable for. We have said elsewhere, that if a loss has occurred in the transmis- sion of messages on the company's lines by the act of God or the pub- lic enemy, the latter would not be liable. Then, if the alteration in the telegram is the result of any of these causes, and not that of the comjiany's negligence, the sender will not be liable. In other words, if a telegram, containing the terms of a contract, has been altered in any material way in its transmission as a result of the act of God or the public enemy, the sender cannot be held l)Ound by the terms of the contract in its altered state as accepted by the addressee. It is no " West. U. Tel. Co. v. Shotter, 71 Ga. Magie v. Herman, 50 Minn. 424, 52 760; Aver v. West. U. Tel. Co., 79 Me. N. W. 909, 36 Am. St. Rep. 660; Save- 493, 10 Atl. 495, 1 Am. St. Rep. 353; land v. Green, 40 Wis. 431. <§ 727] CONTEACTS BY TELEGRAM. 689 contract, as the minds of the contracting parties have never come together, either through themselves or through the instrumentality of these companies as an agency. It is true, that a question of this kind would seldom occur. Where these companies are interfered with in the transmission of news by such unavoidable hindrances, the general observation is, that a complete failure has resulted in sending the news. § 726. Same continued — private institution — does not effect. The same law is applicable to the creation of contracts whether they have been negotiated by mail or by telegram, and this, too, not- withstanding the fact that the telegraph companies, unlike the pest- office, are private institutions, owned and operated by private individ- uals."^ As was said by an able text-^v^ite^ on this subject: "This dis- tinction is immaterial, it seems, upon the question whether either a telegraph company or the post office is the agent of a private indi- vidual to complete a contract in his behalf. A telegraph company is employed to commimicate a certain message. It neither undertakes, nor is authorized to go further, and effect as an agent, the purposes for which the communication of that message is desired by the em- ployer. It is simply a forwarder of messages."^ § 727. What must contain. In order that a contract may be negotiated through correspondence or by mail, the letters pertaining to such must contain sufficient mat- ter to show that an offer has been made and accepted. When the car- dinal points of a proposed contract are definitely agreed upon by let- ter, the mere fact that in the course of the correspondence reference has been made to a more formal agreement will not deter the court from considering the agreements arrived at by the letters as conclud- ed. The same rule applies to contracts made by telegram. If the telegrams in regard to such contract contain sufficient elements to con- stitute a contract, and it is evident from these that the contract has ^Dickson v. Renters' Tel. Co., 2 C. ^Grav on Tel. §113. V. D. 62, 19 Moak, 313, aff'd. 3 C. P. D. 1, 30 ]\roak. 1. T. & T.— 44 690 TELEGKAPH AXD TELEPHONE COMPANIES. [§ 727 been acceptedj the parties will be bound bj such contract,^ although, during the connnunication, more formal contracts may have been re- ferred to ; and a court would not hesitate to consider the agreements arrived at by telegram as concluded. ^"^ It is presumed that if there are two conflicting contracts made by the same parties, at different times in regard to the same subject-matter, the last made should be more valid and enforcible. Where, however, the contract is to be made out, partly by telegTams and partly by parol evidence, the whole becomes a question for the jury.-^^ § 728. When offer is complete. When an offer or proposition is made by mail or by telegram, it is not complete until it has been delivered to the sendee. The party making an offer— the same to be delivered by this means — appoint this agency to make the delivery. The postal system or telegraph be- ing an agent of the sender, the offer is not complete so long as it re- mains in the hands of the agent, but so soon as it is delivered to the party to whom the offer is made, it then becomes complete. If there are any delays or mistakes made during the transmission of the offer, the party sending same must suffer the consequence.^^ § 729. Order made by telegram. An order for goods or merchandise may be, and often is, made by telegram. The question which we desire to discuss in this connection is. When does the order take effect or become a sale, where nothing •Calhoun v. Atchison, 4 Bush 261, 797; Utley v. Donaldson, 54 U. S. 29, 9G Am. Dec. 299. 24 L. Ed. 54; Central Trust Co. v. "Cayley v. Walpole, 22 L. T. N. S. Wabash, etc., E. Co., 38 Fed. 561; Al- 900, 18 W. R. 782; Johnson v. King, ford v. Wilson, 20 Fed. 96. 2 Bing. 270, 9 Moore 482. But the tel- '^ Blockow v. Seymour, 17 C. B. U. egrams or letters or both, must contain S. 107. See, also. Cox v. Maxwell, 151 sufficient matter to show that a con- Mass. 336, 24 N. E. 50; Short v. tract was made and accepted: Brewer Threadgill, 3 Tex. App. Cas. 267; So- V. Harst, etc., Co., 127 Cal. 643, 50 L. ciety Anonyme, etc., v. Old .Jordan R. A. 240n, 60 Pac. 418. See, also, Cox Min., etc., Co., 9 Utah 483, 35 Rac. 492. V. Maxwell, 151 Mass. 336, 24 N. E. '^Averill v. Hedge, 12 Conn. 424; 50; Short v. Threadgill, 3 Tex. App. Mactier v. Fritch, 6 Wend. (N. Y.) Cas. 268; Society Anonyme, etc., v. 103, 21 Am. Dec. 262; Frith v. Law- Old Jordan Min., etc., Co., 9 Utah 483, rence, 1 Paige (N. Y.) 434; Adams v. 35 Pac. 492; Lawrence v. Milwaukee, Lendsell, 1 B. & Aid. 081, 19 Rev. Rep. etc., R. Co., 84 Wis. 427, 54 N. W. 415. <^ 730] CONTRACTS BY TELECiKAM. 691 is said in the message in this regard ? If the message should request that a reply be given so as to notify the sender whether the order could be filled, there would be no doubt about when the order would take effect. The order, in this instance, would be filled when the reply was given to the telegraph company. Tlie difficult (piestion to be determined is, when will the sale be complete when nothing is said about a reply ? If the goods arc to be delivered to the carrier by the party on whom the order is made, and the carrier is desigTiated in the order, it seems that a delivery to the carrier or warehouse com- pany would Ix- a sufficient acceptance of the order. If, however, no carrier is mentioned in the order, but other goods which have been purchased by the same party were delivered to a certain carrier, it seems that the party on whom the order was made would be justified in delivering the goods to the same carrier, and the acceptance would then be complete. The circumstances of each particular case may be different, and, of course, under this state of facts the same rule would not njiply to l^oth. § 730. Communication both by post and telegraph. In order to create a contract by means of correspondence, it is not necessary that all the negotiations should have been conducted by post nor by telegraph, but it may have been created both by corres- pondence by post, and by communications by telegTaph. In other words, some of the communications may have been made by mail and others by telegram. And it seems that if it is not necessary that the contract should be in writing, as required by the statute of frauds, oral statements made when the contracting parties are together, or made by telephone, may be used in connection with the telegrams to prove the contract. As it has been elsewhere discussed, to make some contracts binding, some written memorandum must have been kept, and, also, that a memorandum might be made by telegi-am. So, if there have been oral statements made respecting the creation of a contract which is required to be in Avriting, they may be considered in connection with such telegi-ams to explain the contract as made. § 731. When contracts take affect. It i> tlie rule of law that when a contract is made by means of cor- respondence tln-ough the mail, the contract is complete upon the post- 692 TELEGKAPII AND TELEPHONE COMPANIES. \_^ 731 ing by one party of a letter addressed to the other, accepting the terms offered by the latter, notwithstanding the fact that such letter may never reach its destination.^^ The reason of the rule is obvious. He who makes a proposition or an offer through the mail impliedly ap- points the postal system his agent, and when the other party accepts the proposition or offer, and in accordance therewith delivers a properly addressed letter to said agent to be conveyed to the first party, the acceptance is sufficiently made. Applying the same rule to contracts negotiated by means of the telegraph, we find it is generally held that when an unconditional offer is made through this means, and a telegram containing an acceptance of the terms of such contract is delivered to the telegraph company by the offeree, the contract is complete whether the message does or does not reach the other party. ^* § 732. There must be a distinct and definite offer. In order for the contract to be sufiiciently created by telegram, the offer therein must be very distinct and definite. In a case arising on this point, it appeared that the plaintiff's agent wrote to him stat- ing that he had "hit on" a desirable piece of property which could be bought on certain terms, and advising him to respond by wire if a purchase was desired. Plaintiff replied, instructing the agent to close the contract, but the telegram was not delivered for several days and the opportunity to make the purchase was lost. It was held "Blake v. Ins. Co., 67 Tex. 160; 157; McCulloch v. Eagle Ins. Co., 1 Butterfield v. Spencer, 1 Basw. (N. Y.) Pick. 278. 1; Maetier v. Frith, 9 Wend. (N. Y.) Neiv Yor/.-.— Trevor v. Wood, 36 N. 103; Vassar v. Camp. 14 Barb. (N. Y.) Y. 307, 93 Am. Dec. 511. 354. Pennsylvania. — Hamilton v. Lycoin- '* Illinois.— Cohh v. Force, 38 111. ing Mut. Ins. Co., 5 Pa. St. 339. App. 255. Compare Mactay v. Harvey, Wisconsin. — Baker v. Holt, 56 Wis. 90 111. 525, 30 Am. Rep. 35. 100, 14 N. W. 8. Maine. — True v. International Tel. United States. — Minnesota Linseed Co., 60 Me. 9, 11 Am. Rep. 156. Oil Co. v. Collier White Lead Co., 4 Maryland. — Wheat, v. Cross, 31 Md. Dill. 431; Taylor v. Merchants' Fire 91, 1 Am. Rep. 28. Ins. Co., 9 How. 390. Massachusetts. — /S'quire v. West. U. England. — Stevenson v. McLean, 5 Tel. Co., 98 Mass. 232, 93 Am. Dec. Q. B. D. 340; Household F., etc., Co. v. Grant, 4 Ex. D. 216. <^ 734] CONTRACTS BY TELEGRAM. 693 that the correspoudence did not constitute a contract, there having been no distinct offer. ^^ In another case, similar to this, a person made another an offer to purchase his land, to which the owner of the land replied by telegTaph, ''Will accept $900 if not sold other- wise." Soon afterwards, the owner sold the land to a third party with whom he had been negotiating before he sent the telegram. It ^\•as held that the message did not constitute an absolute agreement to sell.^*^ § 733. Offer requiring actual receipt of acceptance. The rule that a letter or telegram of acceptance takes effect when it is mailed or delivered to the telegraph company, does not apply, of course, where the offer requires actual receipt of the letter or tele- gram of acceptance ; as where it says : "Unless I receive your answer by a certain time, I will not consider myself bound," ^"^ or where the offerer requests an answer by telegraph, "yes" or "no," and states that unless he receives the answer by a certain day he will conclude "no." It was held in this case that the offer was made dependent upon the actual receipt and not the mere sending of the telegram. ^^ Such a condition may in some cases be implied from the nature and form of the previous negotiations.^^ Thus, where the message re- quested the offeree to answer "yes" or "no," this shows that it was in the contemplation of the parties that this telegram should not merely have been deposited for transmission, but that it should have been transmitted and been received before there could arise between the parties any complete contract. § 734. Same continued — how request implied. The request or authorization to communicate the acceptance of the offer by telegraph may be implied in either of two ways, viz.: (1) the telegraph is used to make the offer, as where a person makes an offer to another by a telegraphic message and says nothing as to how "Alexander v. West. U. Tel. Co., 76 '"Lewis v. Browning, 130 Mass. 173 Miss. 386, 7 So. 280. '^Langdell on Contracts, §§6, 11, 15. '•Ford V. Gebhardt, 114 Mo. 298. '"Haas v. Myers, 111 111. 421, 53 Am. See, also, West. U. Tel. Co. v. Way, 83 Rep. 634. Ala. 542, 4 So. 844; Breckinridge v. Croker, 78 Cal. 529. 694 TELEGRAPH AXD TELEPIIOXE C0:MPAXIES. [^ 734 tlie answer shall be sent; and (2) where the circumstances are such that it must have been in the contemplation of the parties that, ac- cording to the ordinary usage of such parties, the telegraph might be used as a means for such purposes.-" Therefore, where an offer is made by post, it is presumed that the acceptance of the offer shall be made by post ; but if the offer is made by telegTam, it is presumed that the acceptance should be made by telegraph. § 735. Acceptance must be made within time. In order for an acceptance to be good, it must be made within tlie time allowed in the offer. If there is no such time specified, it should be made within a reasonable time after the receipt of the offer. An offer comes to an end at the expiration of the time given for its ac- ceptance, a limitation of time within which an offer is to run being equivalent to the withdrawal of the offer at the end of. the time named.^^ But Avhen no time is fixed in the offer, it expires at the end of a reasonable time.-- What is a reasonable time, depends upon the nature of the offer and the circumstances of the particular matter about which the offer is made.^^ Thus, if it should be in regard to the sale of land, it seems that it is not necessary that so prompt a time be exercised as it would in case it were concerning the sale of chattels, stocks or perishable property.-'* In a case bordering on this point, a 2» Hawthorn v. Frasev. 2 Ch. 27. Gl K. 549, 28 Am. Dec. 372. When a tele- L. J. Ch. 373, 66 L. T. Rep. U. S. 439. gram making an offer and demanding 40 Wkly. Rep. 434. an immediate acceptance is received at ^ ^laclay v. Harvey, 90 111. 52,5, 32 10 o'clock Saturday night, the sender is Am. Rep. 35; Cannon River Mfg. Assoc. not bound by an acceptance sent on the V. Rogers, 42 Minn. 123, 43 N. W. following Monday. James v. Marion 792, 18 Am. St. Rep. 497; Mactier v. Fruit Jar, etc.. Co., 69 Mo. App. 207. Frith, 6 Wend. 103, 21 Am. Dec. 262: =^Averill v. Hedge, 12 Conn. 424; Union Nat. Bank v. Mills, 106 N. C. Lovemon v. Jordan, 56 111. 204; Morse 347, 11 S. E. 321, 19 Am. St. Rep. 538; v. Bellows, 7 N. H. 549, 28 Am. Rep. Weaver v. Burr, 31 W. Va. 736, 8 S. 752. E. 743, 3 L. R. A. 94. ''^Kempner v. Cohn, 47 Ark. 519, 1 "Sanford v. Howard, 29 Ala. 684, 6S S. W. 869, 58 Am. Rep. 775; Park v. Am. Dec. 101; Ferrier v. Sover, 63 Whitney, 148 Mass. 278, 19 N. E. 161 ; Iowa 484, 19 N. W. 288, 50 Am. Rep. Minnesota Linseed Oil Co. v. Collier 752; Mitchell v. Abbott, 86 Me. 338, White Lead Co., 4 Dill. 431, 17 Fed. 29 Atl. 1118, 41 Am. St. Rep. 559, 25 Cas. No. 9635. L. R. A. 503; Morse V. Bellows, 7 N. <§ 736] CONTRACTS BY Ti:LEGKA>r, 695 person went west to purchase a drove of cattle. If there was an op- portunity to purchase at a reasonable price he was to wire another person of same and the latter was to arrange for part of the payment at a certain time. The latter did not make such arrangement at the time, but came later and claimed his interest in the purchase. It was held that he was too late. "It was essential that he should have per- formed before. . . . That he could not, after leading Myers to think that he did not want an interest in the purchase, and the latter and Martin raising and paying all the purchase money required, come in aftenvards, though only the next day, and then offer to pay his share of the money, and demand the right of participation in the purchase. To have then admitted Haas into the purchase would have been but a matter of favor with Myers, not of obligation."-^ § 736. Revocation of offer. It is a general rule that where an offer is made, not under seal, it may be revoked at any time before acceptance, unless there is a binding agreement to hold it open, but it cannot be revoked after ac- ceptance.-''^ In order that the offer should be revoked, it is necessary that the same be communicated to the offeree before he accepts the offer.-" Formal notice of such revocation is not always necessary. It is sufficient if the person making the offer makes some act inconsis- tent with it, as where he sells the property to another person, and the offeree knows of such sale before he accepts.-^ If an offer is sent by telegTam and, in accordance to the regiilations of the company's office, the sender is unable to recall his telegram, he may do so by other moan=; if possible before it is accepted :'-•' as, by a second telegram ^Haas V. Myers, 111 111. 421, 53 Am. ild. 380, 17 Atl. 389, 14 Am. St. Rep. Rep. 634. 364; Waterman v. Banks, 144 U. S. =• Cooper V. Lansing Wheel Co., 94 394, 12 Sup. Ct. Rep. 640, 30 L. Ed. Mich 272, 54 N. W. 39. 34 Am. St. 479. Rep. 341; Ide v. Leiser. 10 Mont. 5. =«Kempner v. Cohn, 47 Ark. 519, 1 24 Pac. 695, 24 Am. St. Rep. 17; For- S. W. 869. 58 Am. Rep. 775; Coleman ry V. Mt. Hope Iron Co., 15 K. I. 380. v. Applegarth, 68 Md. 21. 11 Atl. 284. 5 Atl. 632, 2 Am. St. Rep. 902. Am. St. Rep. 417. "Arkridge v. Glover. 5 Stew. & P. " Xewcomb v. De Roose, 2 E. & E. (Ala.) 204, 26 Am. Dee. 44; Kempner 271, 6 Jur. U. S. 08, 29 L. J. Q. B. 4. V. Cohn, 47 Ark. 519. 1 S. W. 869. 58 S Wkly. 5, 105 E. C. L. 271. Am. Rep. 775; Damhnianu v. Lonitz, 70 696 TELEGRAPH AND TELEPHOiS^E COMPANIES. ["<§ 736 sent by the same means and delivered at tlie same time with the first telegram ;^^^ or, by a telegram received by the offeree before he has delivered his telcgTam to the company accepting the offer.^^ But a revocation of an offer not actually communicated to the person to whom the offer is made, or which is communicated to him after the acceptance has been sufficiently made, is inoperative.^^ So it follows, that a revocation of an offer made by telegram can have no effect, un- less the same is communicated to the offeree before the acceptance.^^ § 737. Contract — what law governs. It is the general law of contracts, as discussed elsewhere, that the rights of the parties must be governed by the laws of the state where the property is situated and where the contract and conveyance are made, unless it is clearly shown that the conveyance was intended to take effect in another state.^^ Thus, where a Mississippi plantation was leased in a contract made by telegram to parties living in the State of Kentucky, and an action was brought in the latter state to recover the rent which was not stipulated as to when it should be paid, it was held that the time of payment must be determined by the laws and customs of the state where the land was situated, the contract was to be performed, the landlord lived, and where in legal contemplation the contract was made.^^ § 738. Telegraph company ordinarily the agent of sender. An agent may be appointed by implication. Thus, the appoint- ment of an agent may be implied from the fact that a person is placed in a situation in which, according to ordinary usage, he would be un- derstood to represent and act for another."" So, it can, in general, ])(■ said that the manner in which a party treats one who apparently *" Sherwin v. Nat. Cash Reg. Co., 5 See. also, Taylor v. Merchants' F. Ins. Colo. App. 162, 38 Pac. 392. Co., 9 How. (U. S.) 390. =^Re London, etc., 81 L. T. Rep. U. s* Wyse v. Dandridge, 35 Miss. G72. S. 512. 72 Am. Dec. 149; Young v. Harris, 14 =^ Wheat V. Cross, 31 Md. 99, 1 Am. j;. Monroe (Ky.) 556, 61 Am. Dec. Rep. 28; Braner v. Show, 168 Mass. 170; Cialliano v. Pierre & Co., 18 La. 198, 46 N. E. 617, 60 Am. St. Rep. Ann. 10, 89 Am. Dec. 643 and note. 378. ^^ Calhoun v. Atchinson, 4 Bush ^'Cobb V. Force, 38 111. App. 255. (Ky.) 261, 96 Am. Dec. 299. »" Evans on Agency (Ewell's Ed.) 23. § 738] CONTRACTS BY TELEGRAM. 697 acts as hi6 agent, and holds him out as such to third partifs, will be a sufficient implication of agency.^' It is a general rule that when the post is used as a means of conveying news respecting a certain trans- action, the party first selecting the post for such purpose impliedly appoints this instrumentality a'^ an agency for consummating the transaction and it is therefore his agent. However, the extent of em- ployment of such agent is merely to convey the letter and deliver it to the other party when called for. The same rule applies to tele- graph companies, w'hereby they are ordinarily considered the agent of the party sending the message.^^ The effect of the rule, as has been seen, is that when an offer has been made by telegraph, the contract is complete at the moment the acceptance is delivered to the company for transmission to the party making the offer. If the acceptance is delayed or changed in any way in the transmission, the sender will be bound nevertheless.^^ He assumes responsibilities for errors both ways.^® *^ South, etc., Alabama R. Co. v. Henlein, 52 Ala. 606; Shaffer v. Saw- yer, 123 Mass. 204; Hull v. Jones, 69 Mo. 587; Singer Mfg. Co. v. Holdford, 86 111. 455; Houghton v. Maurer, 55 Mich. 323; LoAvell v. Williams, 125 Mass. 439. »«Haubelt v. Rea, etc.. Mill Co., 77 Mo. App. 672. "> Georgia.— West. U. Tel. Co. v. Shelter, 71 Ga. 760. Illinois. — Anheuser-Busch Brewing Assoc. V. Hatmatcher, 127 111. 652, 21 N. E., 62, 4 L. R. A. 575, affd. 29 111. App. 316. See, also, Haas v. Myers, 111 111. 421, 53 Am. Rep. 634. Maine. — Ayer v. West. U. Tel. Co., 79 Me. 493, 10 Atl. 495, 1 Am. St. Rep. 353. See, also. True v. International Tel. Co., 60 Me. 9; 11 Am. Rep. 156. Mansachusetts. — Squire v. West. U. Tel. Co., 98 Mass. 232, 93 Am. Dec. 157. Minnesota — Magie v. Herman, 50 Minn. 424, 52 N. W. 909, 36 Am. St. Rep. 660; Wilson v. Minneapolis, etc., R. Co., 31 Minn. 481, 18 N. W. 291. Missouri. — Asheford v. Sehoop, 81 Mo. App. 539; Haubelt v. Rea, etc.. Mill Co., 77 Mo. App. 672; Taylor v. Steamboat Robert Campbell, 20 Mo. 254. New Hampshire. — Howley v. Whip- ple, 48 N. H. 487. New York. — Denning v. Roberts, 35 Barb. 483; Rose v. United States Tel. Co., 3 Abb. Pr. U. S. 408. Pennsylvania. — New York, etc.. Print. Tel. Co. v. Dryburg, 35 Pa. St. 298, 78 Am. Dec. 338. Texas.— West. U. Tel. Co. v. Edsall. 74 Tex. 329, 15 Am. St. Rep. 835. Vermont. — Durkce v. Vermont Cent. R. Co., 29 Vt. 127. ^Visconsin. — Saveland v. Green, 40 Wis. 431. ^"Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511, reversing 41 Barb. (N. Y.) 255. Sec, also, ]Magie v. Herman. 50 Minn. 424, 52 N. W. 909, 36 Am. St. Rep. 060; Wilson v. Minneapolis, etc., R. Co., 31 Minn. 483, 18 N. W. 290; Durkee v. Vermont Cent. R. Co., 29 Vt. 127. 698 TELEGEAPH AND TELEPHONE COMPANIES. [^ 739 § 739. Sender bound on message as received. If a message is delivered to a telegraph company, containing an of- fer to sell merchandise at a certain price, and the company transmits it so as to contain an offer at a less price, the sender is boimd to fur- nish the merchandise at the latter price, but he may recover from the company the damages sustained by complying with the order.^^ So, also, if a land agent leaves a message directed to his principal, nam- Uig the price at which the property can be sold, and the company through error in the transmission raises the price, and the principal accepts the offer as received and executes a deed at that price, the agent is compelled to conclude the sale at the price first named by him yet the company would be liable to the vendor for the difference be- tween the prices.^ 2 The reason why the sender is bound by the terms of the message as received is, that the telegraph company is deemed his agent and he is therefore bound by the acts of such company with respect to the transmission and delivery of the message. § 740. Within the meaning of the statute of frauds. We have commented at some length in a separate chapter on the statute of frauds with respect to a written message, offered for trans- mission, being a sufficient writing to constitute a memorandum and one which would bind the, parties under such statute. We shall, therefore, be very brief at this place in discussing the part telegraph companies take in effecting such results. The fact of the telegraph company being the agent of the sender, will bind him by any of the former's acts in this respect. Thus, when the telegram is written out by the operator at the receiving station and delivered to the ad- dressee, the act of such operator in writing and delivering the tele- "West. U. Tel. Co. v. Flint River Am. St. Rep. 682; Hays v. West. U. Lumber Co., 114 Ga. 576, 40 S. E. 815, Tel. Co., 70 S. Car. 16, 48 S. E. 608, 88 Am. St. Rep. 30; Reed v. West. U. 67 L. R. A. 481, 106 Am. St. Rep. 731; Tel. Co., 135 Mo. 001, 34 L. R. A. 492, Pepper v. Tel. Co., 87 Tenn. 554, 4 L. 58 Am. St. Rep. 609, 37 S. W. 904. R. A. 660, 10 Am. St. Rep. 699; West. See, also, Hasbrouek v. West. U. Tel. U. Tel. Co. v. Dubois, 128 111. 248, 21 Co., 107 Iowa 160, 77 N. W. 1034, 70 N. E. 4, 15 Am. St. Rep. 109; Pearsall Am. St. Rep. 181; Rittenhouse v. Inde- v. West. U. Tel. Co., 135 Mo. 661, 58 pendent Line of Tel., 44 N. Y. 263, 4 Am. St. Rep. 609, 34 L. R. A. 492. Am. Rep. 673; West. U. Tel. Co. v. « Id. Reals, 56 Neb. 415, 76 N. W. 903, 71 -§ 742] CONTRACTS BY TELEGRAM. 699 gram is the act of the sender.-*"' The rule would not be changed if the sender fails to write the message. If he delivers it orally or com- municates it by telephone to the company and it is written out by the operator, the statute will be sufficiently complied with. This is the holding both of the state and federal courts.^-* § 741. Exception to the rule. There are some exceptions to the rule that the telegraph company is the agent of the sender in consummating business transactions through the means of such company. There must be some intention shown either express or implied, that the company is to act as the agent of the sender, since if there are any acts or indications on the part of the addressee that the company shall not be the sender's agent, it will be presumed that it acts as the agent for the former. So, also, if there is a continued correspondence by telegraph, it is not pre- sumed that the party making an offer or proposition has appointed the company his agent, but it is deemed the agent of the party who first makes it the medium of communication.^'^ When this is the case, the party making the offer is not responsible for errors made in the transmission, and an aceeptanco of the offer is not complete until it has been actually delivered to the offerer. As it has been seen, this is not the case when the company acts as the agent for the party mak- ing the offer. Another exception to the rule that the telegraph com- pany is the agent of the sender is, where he uses such company to con- summate the transaction at the suggestion of the addressee, or the party to w^hom the offer is made."*^ § 742. English rule. The rule in England is dift'eront from that in the United States. It is held there that the company is not the agent of the sender, and that he is not, therefore, liable for any errors made in transmission. The addressee may have incurred gi-eat expense and trouble by acting on "See note 14 for cases. 001; Culver v. Warren, 30 Kan. 391. "j^ 13 Pac. 577. «Durkee v. Vermont Cent. R. Co., *« Smith v. Easton, 54 Md. 13S. 39 29 Vt. 127. See, also, Sullivan v. Am. Rep. 355; Durkee v. Vermont Cen. Kuvkendall, 82 Ky. 483. 56 Am. Rep. R. Co.. 29 Vt. 127. 700 TELEGRAPH AND TELEPHONE COMPANIES. [§ 742 an erroneous message, still he will be the party to lose.^' The rule there is accounted for by the fact that the telegraph is part of the government service,^^ and yet it seems that this was not the case at the time the decisions above cited were rendered.^^ This rule has been followed by a few of our courts.^ - § 743. Telegraph company an independent contractor. A telegi-aph company, with respect to the transmission of news, is regarded as an independent contractor, and is liable to either party, the sender or the addressee, for its negligent transmission. It must not be understood that this statement is in conflict or is inconsistent with the principles heretofore discussed, that it is the agent of the sender. It may be the agent of the sender in affecting a contract with the addressee, as has been said, and, at the same time, be an inde- pendent contractor with respect to the contract made for transmitting the necessary negotiations to effect the first contract. In other words, if the contract is negotiated by means of a telegraph company, the latter is deemed the agent of the party who first uses this means of effecting the contract, but, aside from this, there is another contract made by such party with the telegraph company, as the other con- tracting party, whereby it is agreed for a valuable consideration that the latter will transmit the news which effects the making of the for- mer contract. It is in this sense we consider the company an inde- pendent contractor ; but it seems that this distinction is not observed by some.^^ It is the rule, as we have said elsewhere, that, where a contract is negotiated by means of the postal system, the latter is deemed the agent of the party who first selects this means of com- munication ; and, it is upon this theory, that the telegraph company " Herkell v. Pape L. R. 6 Exch. 7, 40 ''' Mississippi.— Shingleur v. West. U. ].. J. Exch. 15, 23 L. T. Eep. U. S. 419, Tel. Co., 72 Miss. 1030, 48 Am. St. Rep. 19 Wkly. Rep. 106. 004, 18 So. 425, 30 L. R. A. 444. *«West. U. Tel. Co. v. Shotter, 71 North Carolina. — Pegram v. West. Ga. 760. U. Tel. Co., 100 N. C. 28, 6 S. E. "8 Joe. Fish. Dig. (Telegraph.) 770, 6 Am. St. Rep. 557. ^Pepper v. West. U. Tel. Co., 87 Tennessee. — Pepper v. West. U. Tel. Tenn. 554, 4 L. R. A. 660, 10 Am. St. Co., 87 Tenn. 554, 10 Am. St. Rep. 699, Rep. 699; Harrison v. West. U. Tel. 4 L. R. A. 660. Co., 10 Am. & Eng. Corp. Gas. (Tex.) reicas.— Harrison v. West. U. Tel. 600. Co., 10 Am. & Eng. Cas. 600. <^ 744] CONTRACTS BY TELEGRAM. 701 is considered the agent of the sender. We think that there is this dis- tinction — however unimportant it may be — between these two means of communication with respect to the contract made for communicat- ing such news: The postal system is under the control of the public service, and the contract made with it for delivering a letter to the addressee is not similar to that made with a telegraph company to transmit a telegram. In one, the consideration — if it is deemed that any at all has been given — is made indirectly, as by means of public revenues ; but, in the other, the consideration is given directly by the sender in the way of charges or fees for the transmission. Therefore, if it should be held that the postal system is not an independent con- tractor in this light, it is for the above reason. § 744. Same continued — may be sued. It was discussed elsewhere that a telegraph company could be sued by the sender for failing to correctly transmit a telegram entrusted to its care, or, in other words, it may be sued for a breach of contract. Then, how can it be sued in such a case unless there has been a con- tract made, and how can a contract be made unless it is an inde- pendent contractor in that particular instance ? Where it acts as agent for the sender, it only acts as such to the extent of delivering the message in the words in which it was accepted for transmission ; however, as between the sender and an innocent addressee, all losses caused by errors or mistakes in the transmission must be borne by the sender, yet he may recover his loss from the company. ^^ The gen- eral rule is, that the principal is bound by the acts of his agent while acting within the ^apparent scope of his authority. Then, when a person appoints a telegraph company as his agent to transmit and de- liver a message, the duty of such agent is to transmit the message as received. If it has been altered in its transmission, it is presimied that this, as delivered to an innocent addressee, is the correct message or the one which it was employed to deliver.^^ It has been held that the sender is bound by the contents of the telegram as received, only "Ayer v. West. U. Tel. Co., 79 :Me. 5.57: Pepper v. West. U. Tel. Co., 87 493, 1 Am. St. Rep. 353. Tenn. 554. 11 S. W. 783. 10 Am. St. "Pegram v. West. U. Tel. Co.. 100 Rep. 699, 4 L. R. A. 660. N. C. 28, 6 S. E. 770, 6 Am. St. Rep. 702 TELEGEAPII AXD TELEPIiOXE COMPANIES. [§ 74-i SO fav as it is a faithful reproduction of what is sent.^^ But while the sender should not be bound to the company in such manner as to preclude him from maintaining a suit against it for a breach of its contract, jet he should be bound to an innocent addressee who has incurred gTeat expense and trouble by acting on the erroneous mes- sage. Because, if either the sender or addressee must suffer for the negligence of the company, it should fall on the one first using the company to effect such transaction. We think the rule, however, would be otherwise if either of the parties to the telegram were acting in the capacity of agent for the other. This fact has been fully dis- cussed elsewhere and Ave therefore deem is unnecessary to say more about the subject. "Pepper v. West. U. Tel. Co., 87 Tenn. 554, 10 Am. St. Rep. 699, 4 L. E. A. 660. CHAPTER XXXII. DISTRICT TELEGRAPH COMPANIES AND SUCH AS FURNISH "TICKERS." § 745. Introduction. 746. Same continued — duties and liabilities of. 747. Company furnishing "tickers." 748. Same continued — duties and liabilities. 749. Cannot discriminate. 750. Unreasonable stipulations — unenforcible. 751. Protection against unfair competition. § 745. Introduction. We shall very briefly discuss in this chapter, district telegraph companies, and companies furnishing "tickers." District telegi-aph companies exist in most — if not all — of the large cities, and their business is principally, if not exclusively, to furnish messenger boys for the purpose of carrying parcels, messages and doing other errands when called upon at district stations of the company in the city There is a distinction between the business purposes of these and or- dinary telegraph companies. One is organized for the express pur- pose of transmitting and delivering news in general for the public, and the other is to transmit new^s for the public, but the news is gen- erally in regard to employing a messenger of the company to perform message duties and such as is given above. The main purpose of these companies is to furnish these messenger boys, but the tele- graphic system is used as a means of obtaining these messengers. It is not necessary to enumerate the many and different services which may be rendered by these messengers ; but suffice it to say, that almost any commission or service may be performed by them. § 746. Same continued — duties and liabilities of. The duties and liabilities of district telegraph companies are the same as those imposed upon ordinary telegraph companies, except in so far as both may be affected by the difference in the nature of their respective businesses as in particular cases. ^ Thus, such a company ^Ferber v. Manhattan Dist. Tel. Co., Y.) 121 See, also, West. U. Tel. Co. (C. PI. Gen. T.) 22 Abb. N. Cas. (N. v. Toledo. 103 Fed. 746. 121 Fed. 734. (703) TO-i TELEGRAPH A^^D TELEPHONE COMPANIES. [§ Y46 is liable for the loss of a package caused by one of its messengers de- livering it contrarj^ to the instructions of the sender.^ In a case against one of these companies plaintiff hired a buggy and horses and on returning stopped at the office of the district telegraph company and asked for a boy who could drive the horses back to the livery stable. A boy was sent out who took charge of the horses, but owing to his negligence and incompetence, the horses ran away and injured themselves and the vehicle. It was shown in proof that the company had performed similar services for the plaintiff. It was held that the company was liable for the damages thus occasioned, also that though they were only bailees for hire, the plaintiff could maintain the ac- tion to recover such damages.^ § 747. Company furnishing "tickers." We have had an occasion to speak of this subject elsewhere ; there- fore, it shall only be lightly considered at this place. As seen, the or- dinary business of a telegraph company is to transmit and deliver all proper news tendered it, after the charges have been paid, but these companies may assume greater duties, and, of course, the liabilities imposed for assuming this extra business is greater. Thus, in many instances, these companies are expressly organized for the purpose of collecting and distributing news, such as market reports and other news. When these extra duties are assumed, the company is not only under obligations to transmit correctly and de- liver promptly all news, but it must also collect and distribute ac- curately and correctly all of such news. For instance, in collecting the market report, the same must be distributed exactly as it is re- ported on the market, and any deviation therefrom whereby a sub- scriber suffers loss, will be a loss for which the company will be liable. The business of these companies is to furnish each subscriber with an instrument, commonly called a "ticker." by means of which the re- port is received. § 748. Same continued — duties and liabilities. These companies have the same general powers, and are subject to the same liabilities as ordinary telegraph companies, the difference * American Dist. Tel. Co. v. Walker, ^ Id. 72 Md. 454, 20 Atl. 1, 20 Am. St. Rep. 479. <§, 749] FURNISHING TICKERS. 705 betAveen the two being luerely the mcthuii of eloing Ijiibiness.' While the measure of the liability of these companies is the same as that of the ordinary telegraph companies, so far as the nature of the business of the two is the same, yet when the additional assumption of collect- ing and distributing is undertaken, the liabilities of the former to this extent are greater. In other words, as stated, these companies must exercise the same care and diligence in transmitting the mes- sages as is imposed upon ordinary telcgi-aph companies, and in addi- tion to this duty, they must also collect the news accurately. These coni]);iiiies iiuiy also make and enforce reasonable regulations with re- S2)ect to the use of their ''tickers" or "stock indicators" by their sul> scribers. One of their requirements is, that the subscribers shall not furnish the market reports to non-subscribers. It has been held that this requirement was reasonable and therefore enforciblc.'' In the case cited it was held that the report could not be furnished to a firm of which the subscriber was a member. § 749. Cannot discriminate. As it has been elsewhere discussed, an ordinary telegraph company cannot discriminate among those who engage or attempt to engage its services, but it must show the same favors to all who apply to it, af- ter comi)lying with all reasonable regulations. As has also been seen, telephone companies cannot discriminate among their subscribers, but the same ])rivilegos must be enjoyed by all alike. The same rule applies to these companies. They are engaged in a public employ- ment and must, therefore, treat all their subscribers alike and not discriminate among them.'' They may, however, refuse to furnish their instruments to parties who are carrying on, through this means, a gambling house. The law will not force these companies to per- form an act which is for an illegal i)urpose ; and should they have contracted to furnish a gambling house with the market report, they may refuse to perform their part of the contract." When the plain- *See chapter 18. T.l. Co., 11 Biss. (U. S.) 531; Bradley ^Shepard v. Gold Stock, etc., Tel. v. Wost. V. Tel. Co., 27 Alb. L. J. 30.3. Co., 38 Hun (N. Y.) 338. • Sinitli v. West. U. Tel. Co., 84 Ky. « Friedman v. Gold, etc., Tel. Co., 32 6(14. 2 S. W. 483. Compare Gray v. Hun (X. Y.) 4; Smith v. Gold, etc.. West. U. Tel. Co.. 87 Ga. 350, 13 S. K. Tel. Co.. 42 Hun (X. Y.) 454; Metro- 562. 27 Am. St. Rep. 259, 14 L. R. A. politan Grain, etc., Exch. v. Mutual U. 1)5. T. & T.— 45 706 TELEGRAPH AA^D TELEPIIOKE COMPA^IKS, ["§ 749 tiffs are conducting a gambling house, equity will not compel these companies to furnish them with a "ticker," giving the quotations of prices ruling on the Chicago board of trade, although they are mem- bers of that board. ^ If, however, the company is merely the agent of an exchange to communicate the market quotations, the rule would be otherwise. Under these circumstances, the exchange would only be the sender of the reports, with the right to name the addressee, and under no duty to furnish its quotations to the public.'' § 750. Unreasonable stipulations — unenforcible. These, as well as ordinary telegraph or telephone companies, can- not enforce an unreasonable stipulation. Any regulation or stipula- tion W'hich would be against public policy, or in conflict with the law of the land, or which would give the company an advantage over its subscribers, could not be enforced. If there is a stipulation incor- porated in the contract made with the subscriber, which provides that the company may discontinue its services or the furnishing of its in- struments to the subscriber without notice, whenever, in its judgment, he has violated the contract, it cannot be enforced on account of its unreasonableness. The company, under such a stipulation, would be sole judge in its own case, and this could never be the case ; since the subscriber would be deprived of his rights without due process of law.i*^ § 751. Protection against unfair competition. The market quotations and other similar news, collected by these companies and distributed or disseminated among their subscribers, are not within the protection of the copyright laws, yet such news constitute property, and the company will be protected in a court of equity against rival companies which seek to obtain such news of the company without proper authority, and to sell to their customers to * Bryant v. West. U. Tel. Co., 77 Fed. Co. v. Board of Trade, 125 Fed. 161, 82.5. reversing 121 Fed. 608. 'Matter of Reuville, 46 N. Y. App. ■» Smith v. Gold Stock, etc., Tel. Co., Div. 37. See, also, Christie Grain, etc., 42 Hun (N. Y.) 454. § V51] FURNISHING TICKERS. TO? the injury or detriment of the former company's services. ^^ While the news, before it has been collected by the company, may be free to all who may desire to obtain it, yet, as the company has worked to gather compiled or collect the same, it has a right to the exclr. l.e use of it while in the company's possession. » National Tel. News Co. V. West. U. v. Cleveland Tel. Co., (50 C. C A. Tel. Co.. (50 C. C. A. 198) 119 Fed. 205) 119 Fed. 301. 294, 00 L. R. A. 805; Illinois Com. Co. TABLE OF CASES CITED [Kt'fercnces are to poKc uuiubtTs. ) A. Abbott V. Duluth 73, 84, 87, 169 V. Johnston, etc., R. Co 50, 51 V. New York, etc., R. Co 148, 149 V. Omaha Smithing etc., Co 47 V. West U. Tel. Co 281 Abendroth v. Manhattan R. Co 57, 117 Abies V. West U. Tel. Co 506 Abraham v. West. U. Tel. Co 30, 453 Achenson v. West. U. Tel. Co 473 Adams v. Gray 421 V. Hayles 393 V. Lawson 417 V. Lendsell 690 . V. Louisville, etc., R. Co 137, 139 Adams Ex. Co. v. Harris 441 Agrew V. Steamer Costa Rica 343 Ahern v. Oregon Tel., etc., Co 179 Aigen v. Boston, etc., R. Co 436 Aiken v. West. U. Tel. Co. .30, 315, 358, 370, 372, 383, 398, 453, 480, 482 Akard v. West. U. Tel. Co 556 Alabama, etc., R. Co. v. Brooks 417 Albers v. West. XT. Tel Co 615 Alden v. Murdock 116 Aldrich v. Cheshire R. Co 158, 159 V. Inhabitants of Pelham 189 Alexander v. West. U. Tel. Co. 209, 259. 271, 419, 446, 457, 473, 600, 693 Alexandria, etc., F. R. Co. v. Alexandria, etc., U. R. Co 125 Alford V. Wilson 687, 690 Allen V. Atlantic, etc., Tel. Co 181, 182, 185 V. Jaquish 670 V. West. U. Tel. Co 577 V. Willard 186 (709) 710 TABLE OF CASES CITED. [References are to page numbers.] AUentown v. West. U. Tel. Co .' 207, 220, 222 Almutt V. Ingles 22, 214 Almy V. Church 75 American Dist. Tel. Co. v. Walker 704 American, etc., Tel. Co. v. Connecticut Tel. Co 243 ■ V.Dougherty 354, 362, 369, 385, 456, 506, 656 V. Harrison 169, l94, 220 V. Hess 19, 63, 76, 77, 88, 119, 205, 206, 220 V. Jones 102 V. Kersch 180 V. Millereck Tp 171 V. Pearce 17, 68, 136, 137, 138, 140 V. Smith 66 V. West. U. Tel. Co. 206, 207, 212 Ames V. Kyle 421 V. McKamber 465 V. Union County .- 128 Ammant v. New Alexandria & Pitt. Turnpike Road 49, 50, 53 Anchor Line v. Dater 436 Anderson v. Cincinnati Sou. R. Co 51 V. Delphi, etc., Tel. Co 94 V. Harold 673 V. State 624 V. West. U. Tel. Co. 285, 395, 408 Andrews v. Delphi, etc., Tel. Co 102, 124 V. Schrieber 687 Anglo-American Packing, etc., Co. v. Com. 658 Anheuser-Busch Brewing Assn. v. Heitmacher 653, 697 Annas v. Milwaukee, etc., R. Co 357 Applegate v. Ernst 621 Appleman v. Fisher 414 Archambault v. Great Northwestern Tel. Co 325 Arkridge v. Glover 695 Arther v. Commercial Bank 50, 52, 53 Ash v. Cummings 3 25 Ashby V. White 114, 115. 593 Asheford v. Schoop 697 Ashley V. Port Huron 92 TABLE OF CASES CITED. 711 [Referc-nff^s iire to page numbers.] V. Ryan ^^^ Atchison, etc., R. Co. v. Boerner 158 V. Bryan ^^^ V. Fletcher 148 V. Forney 158 V. Roach 422 V. Temple 291 Atkinson v. Cheatham 180 Atlantic, etc., R. Co. v. Dunn 578, 579 V. Laird 475 Atlantic, etc., Tel. Co. v. Chicago, etc., R. Co 68, 140 V. Union Pac. R. Co 52 V. West. U. Tel. Co 325 Attorney General v. Edison T. Co 2, 7, 10, 11 V. U. K. Elect. T. Co 87 Atwood V. Fricat 115 Aucrbach v. Cuyahoga Tel. Co 220 Augusta Bank v. Earle 47 Austin V. Manchester R. Co 358 Austrian v. Springer 671 Averill v. Hedge 690, 694 Avinger v. South Carolina R. Co 48G Aver V. West. U. Tel. Co. 263, 299, 354', 362, 363, 365, 369, 464, 479, 480, 638, 697, 701 Ayers v. Russell 460 B. Baglow V. McMickle 650 Bailey v. Atlantic, etc., Co 623 V. Feequa 624 Baird v. Dailey 188 Baker v. Gows Normal 122 V. Haines ^47 V. Holt 692 V. Selma Street, etc., R. Co 103 Baldwin v. Barney 424 V. U. S. Tel. Co.. .297, 431, 433, 437, 439, 440, 441. 490. 498, 509 Ballard v. Mississippi Cotton Oil Co 191 Ballentine v. North Missouri, etc., R. Co 341 712 TABLE OF CASES CITED. [References are to page numbers.] Baltimore v. Chesapeake, etc., Tel. Co 220 Baltimore, etc., R. Co. v. Board of Commerce 143 V. Boyd 114, 115 V. Glenn 148 V. P. W. & Ky. R. Co 148 Baltimore, etc., Tel. Co. v. Lovejoy 597 V. Morgan's Louisiana, etc., R. Co 69 V. State 607 Bancroft v. Merchant's, etc., Co 442 Bank v. Richardson 653 V. State 618 Bank of Augusta v. Earle 148 Bank of California v. West. U. Tel. Co 44 Bank of New Orleans v. West. U. Tel. Co 411 Bank of Middlesbury v. Edgerton 50 Banning v. Banning 664, 668 Bannon v. Baltimore, etc., R. Co 587 Barber v. Rapbury 89 Barhite v. Home Tel. Co 87 Barnes v. West. U. Tel. Co 40, 311, 551 Barnesville First Nat. Bank v. West. U. Tel. Co 490 Barnett v. Independent Tel. Co 181 V. West. U. Tel. Co 210 Barnsley v. St. Louis, etc., R. Co 623 Barons v. Brown . 653, 656, 658 Barrett v. West. U. Tel. Co 210, 374, 615 Barthelmy v. People 561 Bartlett v. Collins 361 Bartlett v. West. U. Tel. Co. 30, 40, 265, 269, 299, 320, 354, 368, 369, 479, 490 Bartwell v. West. U. Tel. Co 32 Bashfield v. Empire St. Tel. Co 57 Batton V. Watson 561 Baxendale v. Eastern Counties R. Co. 232, 233 Baxter v. Brown 670 V. Dominion Tel. Co 30 Bay City, etc., R. Co. v. Austin 618 Bayonne v. Lord 169 TABLE OF CASES CITED. 713 [References are to page nunibers.] Beach v. Baritan, etc., R. Co 675, 687 Beal V. South Devon R Co 358 Beard & Sons v. 111. Cen. R. Co 440 Beasley v. West. U. Tel. Co 265, 339, 371, 372, 393, 406, 407, 556 Beatty v. Mutual, etc., Assn 486 Beauchamp v. Comfort 421 Beaupre v. Pacific, etc., Tel. Co 506, 511, 524 Beckeuridge v. Crockett 674 Becker v. West. U. Tel. Co 36, 320, 356, 359, 3S3 Beesenbury v. Mut. U. Tel. Co 109 Behm v. West. U. Tel. Co 265, 272, 506 Bergin v. Southern New Eng. Tel. Co 190 Berkett v. West. U. Tel. Co 398 Bernett v. West U. Tel. Co 383 Berney v. New York, etc., Tel. Co 32 Belger v. Densmore 394 Bell V. Packard 466 V. Dominion Tel. Co 26, 453 Bell Tel. Co. v. Commissioners, etc 7, 12, 218, 246 Belo V. Fuller 583 Bellsdyke Coal Co. v. North British R. Co 232 Beman v. Rufford 50 Bemberry v. Bemberry 681 Benedict v. West. U. Tel. Co 50, 52 Bennett v. Northern Pac. Ex. Co 391, 482 V. West. U. Tel. Co 381, 516 Bergin v. S. N. E. Tel. Co 190 Berney v. New York, etc., Tel. Co 331 Beveridge v. Lewis 150 Beynur v. McBride 307 Bierhaus v. West. U. Tel. Co 267. 513, 544 Billinger v. New York, etc., R. Co 178 Biloxi City R. Co. v. Maloney 5"7 Bird V. Monroe '" ^ Birkett v. West. U. Tel. Co ^'S, 356 Birmingham, etc., R. Co. v. Baird 589 Birney v. New York, etc., Printing Co 252, 393. 403 V. New York, etc., Tel. Co 30. 297, 319, 369 714 TABLE OF CASES CITED. [References are to page numbers.] Bissell V. N. Y. C. R. Co 116 Bixby V. Dunlap 576 Black V. Delaware, etc., Canal Co 49, 51 Blair v. Perpetual Ins. Co 148 Blake V. Ins. Co 692 Bland v. Adams Express Co 345 Bliss V. Baltimore, etc., Tel. Co 282, 289 Block V. Fitchburg R. Co. 441 Blockow V. Seymour 690 Bloodgood V. Mohawk, etc., R. Co 125 Bloom V. Richards 421 Bloomfield G. L. Co. v. Calkins 93 Bloomington v. Bourland 208 Blount V. West. U. Tel. Co 553 Blythe v. Denver, etc., R. Co. 342 Board of Corns, of Tippecanoe County v. Lafayette, etc., R. Co . . 51 Board of Trade Tel. Co. v. Barnett 74, 109, 115, 119, 120, 123 Bodkin v. West. U. Tel. Co 542, 498 Bogg V. Wilmington, etc., R. Co 436 Bolt V. Stennett 22 Bonn V. Bell Tel. Co 180 Borland v. Barnett 577 Bordstown, etc., R. Co. v. Metcalf 50 Boston V. Richardson 98 V. Schaeffer 632 Boston, etc., Co. v. Salem, etc., R. Co. 144, 145 Boston and R. M. Corporation v. Newman 92 Boston Safe Deposit, etc., Co. v. Bankers, etc., Tel. Co 23 Boteman v. West. U. Tel. Co 331 Bowen v. Lake Brie Tel. Co 26, 528 Bowman v. Teall 342 Boyston v. Rees 655 Bradley v. Rea •. 421 V. West. U. Tel. Co 412, 705 Brady v. Northwestern Ins. Co 597 Bragg V. People 48 Branch v. Libbey • 188 Braner v. Show 696 TABLE OF CASES CITED. 715 [References are to page numberK. J Branish v. State 48 Brawser v. Show 687 Breckenridge v. Croker 693 Breese v. United States Tel. Co 393, 394 Brette, etc., R. Co. v. Montana, etc., R. Co 145 Brewer v. Harst, etc., Co 690 Brewster v. West. U. Tel. Co 531 Brickett v. West. U. Tel. Co 36 Briggs V. Lewiston 92 V. Phillips 75 Bright V. West. U. Tel. Co 288 Brimhall v. Van Campers 421 Bristol V. Rensselaer, etc., R. Co 475 Bristow V. Lane 453 Brooks V. West. U. Tel. Co 210, 441, 522, 607 Broom v. New Jersey Tel. Co 77, 87,109 Brooms v. N. Y., etc., Tel. Co 80, 108, 109, 118, 126 Broshers v. West. U. Tel. Co 280 Brown v. Chicago, etc., R. Co 458 V. Duplesis 92 V. Hannibal, etc., R. Co 312 V. Markland 452 V. Maryland 636 V. Postal Tel. Co. 26, 40, 333, 343, 354, 363, 369, 385, 395, 420, 423, 448, 543 Brownfield v. Phoenix Ins. Co 649 Bronson v. Albion Tel. Co 57, 102, 117 Bryan v. West. U. Tel. Co 288, 383, 551, 574 Bryant v. American Tel. Co 26, 544 Bryant v. West. U. Tel. Co 240, 414, 706 Brush Electric Lighting Co. v. Kelley 174, 189 Buck V. Pennsylvania R. Co 392 Budd V. New York 238 Buffett V. Great W. R. R. Co 50 Buford V. Samuel 648 Burgess v. West. U. Tel. Co 204, 626 Burnett v. Pennsylvania R. Co 361 V. West. U. Tel. Co 209, 423, 515, 568, 596, 606 716 TABLE OF CASES CITED. [References are to page numbers.] Burns v. Campbell . 577 Burt V. Winona, etc., R. Co. 646 Burton v. Frink 187 V. Larkin 452, 453, 455 Butler V. Greene 32 V. Rahm 51 V. West. U. Tel. Co 551, 587, 588 Butner v. West. U. Tel. Co 455, 568, 601 Butte, etc., R. Co. v. Montana, etc., R. Co 142, 145 Butterfield v. Spencer 692 Buzzell V. Laconia Mfg. Co 193 C. Cahn V. West. U. Tel. Co 524 Calhoun v. Atchison 687, 690, 696 California, etc., Tel. Co. v. Alta Tel. Co 168 Callum V. Columbus E. E. Co 102 V. District of Columbia 202 Camerlin v. Palmer Co. 667 Camp V. West. U. Tel. Co 354, 393 Campbell v. Chicago, etc., R. Co 188, 420 Camp Point Mfg. Co. v. Ballow 193 Canadian Pac. R. Co. v. West. U. Tel. Co 69, 148, 167 Canal, etc., R. Co. v. St. Charles St. R. Co 53 Candee v. West. U. Tel. Co 355, 369, 506, 507 513 Canfield v Baltimore, etc., R. Co 392 Cannon v. West. U. Tel. Co 282, 283, 284, 389, 513, 524 Cannon River Mfg. Assoc, v. Rogers 694 Cape May, etc., R. Co. v. Johnson 663 Garden v. New York, etc., R. Go 486 Garland v. West U. Tel. Co 304, 403, 406 Garli v. Stillwater St. R., etc., Tel. Go. 92 Garnahan v. West. U. Tel. Co 420, 600, 609 Carpenter v. Oswego, etc., R. Co 116 Carroll v. Interstate, etc.. Go. 486 V. Staten Island R. Go 424 Carson v. Central R. Co 92 Carver v. West. U. Tel. Co. 526 TABLE OF CASES CITED. 717 ( Kcferenrcs are to page iiuinbers.] Cashion v. West. U. Tel. Co 515, 551, 55G Castigan v. Mohawk & Hudson R. Co 307 Cates V. Northwestern, etc., Tel. Co 94, 9G, 100, 101 Cayley v. Walpole 69" Cayzer v. Taylor 193 Central Branch Union Pac. R. Co. v. West. U. Tel. Co 52 Central Bridge Corp. v. City of Lowell 142 Central Dist., etc., Co. v. Commissioners 247 Central Pennsylvania, etc., Co. v. Wilkerson, etc., R. Co 175 Central R., etc., Co. v. Bridger 442 V. Frankenburg 395 Central Trans. Co. v. Pullman Palace Car Co 51, 52, 57 Central Trust Co. v. Wabash, etc., R. Co 687, 690 Central U. Tel. Co. v. Bradbury 30, 213, 218, 238 V. Falley. 2, 23, 41, 202, 203, 225, 227, 232, 236, 237, 238, 469, 625 V. Fehring 236 V. State 213,216.238 V. Swoveland 255, 354 Cincinnati v. White 112 Cincinnati, etc., R. Co. v. Bank 452 V. Butler 187 V. City, etc., Tel. Assn 196 Cincinnati Incline Plane, R. Co. v. City, etc., Tel. Assn. .10, 18, 19, 74 City V. Parker ^ ' City of Bloomington v. Bourland 208 City of New Orleans v. Kaufman 621 City of St. Louis v. Bell Tel. Co 22 Clairain v. West. U. Tel. Co 188, 190, 192, 193 Clark V. Dales 465 V. Omaha, etc., R. Co 49 V. Wyatt 647 Clay V. Allen 414 V. Postal Tel. Co 121 V. West. U. Tel. Co 502, 540 Chaffee v. Tel., etc., Consir. Co 174, 186 Chalker v. Chalker • • • 597 Chalmers v. Patterson, etc., Tel. Co 174. 190 718 TABLE OF CASES CITED. [References are to page numbers.] ■ Chamberland v. Iowa Tel. Co 73 Chameon v. Sanford Co 192 Champion Electric Light Co. 201 Chance v. Indianapolis, etc., R. Co 647 Chaperon v. Portland Gm. Electric Co 175 Chapman v. New Orleans, etc., R. Co 392 V. West. U. Tel. Co 490, 499, 551, 553, 567, 569, 571 Charleston v. Postal Tei. Cable Co 636 Charleston, etc., R. Co. v. Hughes 158 Charlotte v. Omaha, etc., R. Co 51 Chase v. West. U. Tel. Co 552, 567 Chauper v. Greencastle 87 Chespeake, etc., Tel. Co. v. Baltimore, etc., Tel. Co. 2, 7, 15, 235, 240 V. Mackenzie 20, 77, 78, 89, 90, 94, 108, 111, 112, 115 V. Manning 213, 216, 217 Chester v. State 646 V. West. U. Tel. Co 222, 223 Chicago V. Martin 580 Chicago, etc.. Bridge Co. v. Pac. Mut. Tel. Co 17 Chicago Gas Light Co. v. People's Gas Light Co 22, 51 Chicago Packing & Provision Co. v. Chicago 632 Chicago, etc., R. Co. v. Ashley 22 V. Board 623 V. Chicago 81, 131, 133, 161, 162, 163 164 V. Hooffner 481 V. Iowa 22 V. Jackson 577 V. Katzenbach 391 V. Maroney 192 V. McLenden 587 V. Milwaukee, etc., R. Co 103 V. Morehouse 151 V. Northern, etc., Co 442, 444 V. Pacific Mut. Tel. Co 141 V. Parks 229 V. People 230 V. Quincy 76 TABLE. OF CASES CITED. 719 [References are to page numbers.] V. Russel 653 V. Scurr 577 V. Snyder 137 V. Stockweather 142 V. Sweet 193 V. Van Vleck 487 V. Whiting, etc., R. Co 99 Chicago Tel. Co. v. Northwestern Tel. Co 119, 168 Childers v. San Jose, etc., Pub. Co 584 Childs V. Nelson 75 Chiles V. Drake 576 Choate v. Crawenshield 351 Christian Union v. Yount 148 Chung Kee v. Davidson 452, 453 Church V. Hubbard 650 Clairain v. W. U. Tel. Co 193 Clement v. West. U. Tel. Co 36, 383, 404, 407 Cleveland Burial Case Co. v. Erie R. Co 110 Cleveland, etc., R. Co. v. Backus 633 v. Speer 144 Cobb v. Force 692, 696 Coburn v. New Tel. Co HI Cock V. West. il. Tel. Co 316 Coe v. Columbus, etc., R. Co 49, 52 Cohen v. West. U. Tel. Co., 414, 524, 531 Coit V. West. U. Tel. Co 297, 401, 407, 483 Cole V. Drew 106 V. Tucker 577 V. West. U. Tel. Co 371, 372, 393 Coleman v. Applegrath 695 V. Hiler 452 Coles V. Midland Tel., etc., Co 126 College Mill Co. v. Fidler 686, 687 Collins V. Bristol, etc., R. Co 436 v. Dorchester 189 Colorado Electric Co. v. Lubbers 193 Colton V. Cleveland, etc., R. Co 343 Columbus, etc., R. Co. v. Wright 628 720 TABLE OF CASES CITED. [References are to page numbers.] Colwell V. Colorado Springs Co 148 Commercial U. Tel. Co. v. New England Tel., etc., Co. ..237, 246 Commonwealth v. Alger 22, 215 V. Boley 59 V. Boston 169 V. Burton 644 V. Duane 22 V. Jeffries 647, 658, 660, 681 V. Moorehead "^5 V. Power 324 V. Smith 49, 50, 52, 208, 626 V. Standard Oil Co 618 V. Vasburg 649 V. Warwick 77, 169 V. Welsh 618 V. West. U. Tel. Co 15, 30, 416, 506 Condon v. Marquette, etc., R. Co 439 Conneil v. West. U. Tel. Co.. .206, 245, 419, 478, 568, 572, 597, 600, 607 Conner v. Robinson 414 Consolidation Coal Co 50 Converse v. Norwick, etc., Tel. Co 441 Conyers v. Postal Tel. Cable Co 474, 611, 653, 654 Cook V. West U. Tel. Co 294 Cooley V. Board of Port Wardens 207 Cooper V. Lansing Wheel Co 695 V. Smith 116, 673 V. Sun Print., etc., Assn 584 Cooper Mfg. Co. v. Ferguson 212 Corporation v. Eaton 61 L Costigan v. Mohawk & H. R. R. Co 538 Cothran v. West. U. Tel. Co 414 Couch V. Watson Coal Co 188 County of Mobile v. Kimball 602 Coupland v. Arrowsmith 644 Cowan V. West. U. Tel. Co 456, 476, 479, 549, 551 Coxan V. Great Western R. Co 436 Craig V. Childress 343 TABLE OF CASES CITED. 721 [References are to page numbers.] Grain v. Petrie *99 Crandall v. Nevada ^36 Crasby v. Fitch 344 Crasson v. West. U. Tel. Co 567 Crawson v. West. U. Tel. Co 552 Croake v. Flatbush, etc 93 Crocker v. Collins 75 Crogin v. New York, etc., R. Co 357 Cronur v. Burlington 188 Crosby v. Hawthorn 598 Croudall v. Goodrich Transpt. Co 186 Culver V. Warren 699 Cumberland Marine, etc., R. Co. v. Portland 624 Cumberland Tel. Co. v. Avritt 93 V. Baker * 337 V. Brown 254, 559, 560 V. Cassedy '^^ V. Coats 17-1. 181 V. Cook 175 V. Hendon 247,470 V.Hunt 175,178 V. Louisville Home Tel. Co 168 ■ V. Poston 581 V. Sanders 324, 598, 599 V. United Electric Co 7, 14, 197, 201 Curtin v. West. U. Tel. Co 398, 490, 568 Curtis V. Gibney • ^87 Cutts v. West. U. Tel. Co 22. 543 D. Daflinger v. Pittsburg, etc., Tel. Co 58, 117 Dailet v. State 121 Dailey V. State 102,118.121, 123. 202 Dake v. Campbell ^70 Dale V. Delaware, etc., Co 188 Dambmann v. Lonitz 695 Damenville v. Leonard ^63 Dana v. Short ^86 T. & T.— 46. 722 TABLE OF CASES CITED. [References are to page numbers.] Dane v. Derby ^32 Daniel v. West. U. Tel. Co 506 Dard v. Bounaffee 466 Darlington v. W,est. U. Tel. Co 515, 551 Dartmouth College v. Woodworth 212 Davis V. Dudley 182, 185 V. Eastern steam boat Co 295 V. Meyer 144 V. Pacific Tel., etc., Co 7, 194 V. West. U. Tel. Co. . . 42, 283, 309, 331, 333, 515, 552, 568 577, 586. Dawson v. Postal Telegraph Co 78 Day V. McAllister 421 ■ V. Postal Tel. Co 149 Deere v. Bagley 648 De La Grange v. Southwestern Tel. Co 370, 453, 479 Delaney v. Hillton 188 Delaware v. Delaware, etc., T. Co 238 Delaware, etc., Tel. Co. v. State 240 Denning v. Chicago, etc., R. Co 568 V. Roberts 697 Denver v. Chicago, etc., R. Co ., 343 V. U. S. Tel. Co 102, 116 Denver, etc., R. Co. v. Denver City R. Co 47 DeRutte v. New York, etc., Tel. Co 30, 309, 393, 453, 455 Deslottes v. Baltimore, etc., Tel. Co 291, 292, 462, 303 Desert Irr. Co. v. Mclntyre 154, 155 Detr(3it City R. Co. v. Mills 100 De Voegler v. West. U. Tel. Co 561 Dickey v. Maine Tel. Co 174 Dickson v. Renter's Tel. Co 689 Dimmitt v. Kansas City, etc., R. Co 436 District of Columbia v. Dempsey 174 Dixon V. Clow 114. US V. Renter's Tel. Co 451 Doan V. Lake St., etc., R. Co 103 Dock V. Elizabethtown Steam Mfg. Co 578 Dodd Grocery Co. v. Tel. Cable Co 526 Dodge V. Council Bluffs 148 TABLE OF CASES CITED. 723 [References are to page numbers.] Doggett V. State 598 Domestic Tel. etc., Co. v. Newark 87 Donio V. West U. Tel. Co 376 Donnell v. Jones 186 Donovan v. Allert 102, 104, 106, 116 119 Dorgan v. West. U. Tel. Co -f"'!* Dougan v. Champlain Transp. Co 188 Dougherty v. West. U. Tel. Co.. 305, 306, 388, 418. 448, 456, 506, 530 Dovaston v. Payne 104 Dow V. Humbert 593 Dowdy V. West. U. Tel. Co 334, 551 Driden v. West. U. Tel. Co 518 Drue, etc., Tel. Co. v. State 241 Duble V. Botts 687 Dubley V. West. U. Tel. Co 607 Dubuque v. Chicago, etc., Co 622 V. Illinois C. R. Co 627 DufEee v. Portland, etc., R. Co 229 Duke V. New Jersey Tel. Co 7, 15, 126, 128, 129, 131 Duluth V. Duluth Tel. Co 73 Dumme v. People "^8 Dunbar v. United States . ". 646 Duncan v. Beard 59 Dunning v. Learvitt ^53 Durkee v. Vermont Cent. R. Co 653, 654, 658, 687, 697, 699 Dutton V. Poole 450 Dyke v. Erie, etc., R. Co 361 E. East Boston Freight Co. v. Hubbard 50 East Tenn. Tel. Co. v. Anderson Tel. Co 79 V. Bayless 38.1 V. Russelville '^^' Eastern R. Co. v. Benedict ^^^ Echols V. Evansville St. R. Co 99 Eckert v. Schoch -687 Edgerton v. New York, etc., R. Co 186 Edgerton v. State ^-~ Edwards v. Ricks '^"~ 724 TABLE OF CASES CITED. [References are to i^age numbers.] Eels V. American Tel., etc., Co 104,113 Eels V. St. Louis, etc., R. Co 354 Efird V. West. U. Tel. Co 308 Eldridge v. Hargraves 649 Elizabeth, etc., R. Co. v. Combs 112, 113 V. Cowles .• 93 Ell V. Northern Pac. R. Co 192 Elliott V. Fair Haven, etc., R. Co 92 V. Van Buren 650 V. West. U. Tel. Co 449, 462 Ellis V. Am. Tel. Co 30, 258, 321, 397, 398, 493 V. Hammond 421 V. Harrison 459 Elsey V. Postal Tel. Cable Co 528 Elwood V. West. U. Tel. Co 425 454, 646 Ely V. St. Louis, etc., R. Co 188 Embler v. Hartford Steam, etc., Ins. Co 452 Empire Mills v. Alston Grocery Co -. < . . . . 148 Enfield Toll Bridge Co. v. Hartford, etc., R. Co^ 142, 145 Englewood Connecting R. Co. v. Chicago, etc., R. Co 151 Eppinger v. Scott 644 Erie, etc., R. Co. v. Dater 366 Erie Tel., etc., Co. v. Grims 515 V.Kennedy 102,115 Evans v. Atlanta, etc., R. Co 440 V. Pacific, etc., Tel. Co 511 • V. West. U. Tel. Co 288, 315, 503, 522 Evening Journal Assn. v. McDermott 417, 583 Ewing V. Pittsburg, etc., R. Co 573 F. Fagundes v. Cent. Pac. R. Co 486 Fairbanks v. Kerr 186 Fairley v. West. U. Tel. Co 539 Fall River Iron Works Co. v. Oil Colony, etc., R. Co 151 Falvey v. Georgia R. Co 269 Fargy v. First National Bank 647 Faris v. Hoberg 182 TABLE OF CASES CITED. t2o [References are to page numbers.] Farnswoith v. West. U. Tel. Co 194 Fay V. Parker 578 Ferber v. Manhattan Dist. Tel. Co 703 Ferguson v. Anglo-American Tel. Co .506 Fererro v. West. U. Tel. Co 499, 506. 512 Ferrier v. Sover, 694 Fielden v. Blair 465 Fietsam v. Hay 50, 51 Fire Ins. Agency v. Merchants, etc., Tel. Co 2 First National Bank v. Tel. Co 498, 499, 500 Fisher v. Kuhn 074 V. West. U. Tel. Co 490 Fishkill Savings Institution v. Nat. Bank 428 Fitch V. Central New York Tel., etc., Co 178 Fitzbury R. Co. v. Gage 233 Fitzgerald v. Connecticut Paper Co 190 V. Edison Electric, etc., Co 177 V. West. U. Tel. Co 566 Fleichner v. Pac. Postal Tel. Gable Co 267 Fleming v. Pittsburg, etc.. R. Co 184 Flike V. Boston, etc., R. Co 193 Flint V. Kennedy ^56 Flint River Steamboat Co. v. Foster 597 Flood V. West. U. Tel. Co 175, 190 Ford V. Chicago, etc., R. Co 93 V. Gebhardt 693 Fogg V. Boston, etc., R. Coro 417, 583 Forsythe v. Baltimore Tel. Co 207, 220 Fortenbury v. State 414 Fort Wayne v. Lake Shore, etc., R. Co 144 Fort Worth, etc., R. Co. v. Southwestern Tel., etc., Co. ...145. 147 Foster v. Smith 4*8 Fowler v. West U. Tel. Co 30, 40, 41, 297, 299, 301, 479 Fox v. Borkey ^""^ Francis v. West. U. Tel. Co 362. 375, 448, 568 Fi-anklin v. Northwestern Tel. Co 10. 1<^ Franklin Bank v. Lynch 687 Franklin Co. v. Nashville, etc., Co 621 726 TABLE OF CASES CITED. [References are to page numbers.] Frauenthall v. West. U. Tel. Co 596, 597, 607 Frazer v. West. U. Tel. Co 532 Freeman v. Minneapolis, etc., R. Co 51 Friedman v. Gold, etc., Tel. Co 264, 412, 705 Friend v. Woods ^41 Friesenham v. Michigan Tel. Co 174 Frietsam v. Hay 47 Frink v. Potter 475 Frith V. Lawrence 690 G. Gahan v. West. U. Tel. Co "• 552, 567 Galliano v. Pierre & Co 696 Gallispie v. Gaston 623 Galveston, etc., R. Co. v. Ball 391 Galveston, etc., R. Co. v. Moore 463 Gambrill v. Schooley 417 Gardener v. Michigan Cen. R. Co 486 Gardener v. Providence Tel. Co 243 Garrett v. West. U. Tel. Co 360, 512,534 Garrettson v. Atchison Bank 687 V. Scofield 624 Gaudy v. Gaudy 451 Gay V. Mut. U. Tel. Co 96, 98 General Electric Co. v. Murray 1?'^ Geneva v. Brush Electric Co ISO V. Geneva Tel. Co 220 Gerhardt v. Boatmen's Sor. Inst 671 German v. McArdle 618 German Savings Bank v. Citizen's Nat. Bank 665 Gihbins v. Ogden 636 Gibbs V. Consolidated Gas Co. 52 Gibson v. Leonard 1^2 Giese v. Schultz ^48 Giddens v. West, U. Tel. Co 543, 567 Gillis V. Space ^^^ V. West. U. Tel. Co. 28, 29, 30, 32, 40, 252, 321, 355, 358, 363, 369, 480 TABLE OF CASES CITED. 7l27 [References are to page numbers.] Gilman v. Philadelphia 204 Girandi v. Electric Imp. Co 184 Gist V. West. U. Tel. Co. 476 Given v. West. U. Tel. Co 280, 331, 334, 335, 421, 612 Gladstone v. Earl of Sandwich 59 Glaize v. South Carolina R. Co ' 471 Glass V. Garber ' 593 Gleeson v. Virginia Midland R. Co 178 Glenn V. South Ex. Co 391 Globe Print Co. V. Stahl 664,665 V. State 663 Gloucester Ferry Co. v. Pennsylvania Co 636 Goddard v. Chicago, etc., R. Co 102 v. Grand Trunk R. Co 582 Godwin v. Tel. Co 232, 416, 470 Gold V. Pittsburg, etc., R. Co 143 Goodlittle v. Way 670 Goodman v. Oregon, etc., R. Co 440 v. Walker 449 Goodsell V. West. U. Tel. Co. 410 Goodspeed v. East Haddan Bank 579 Goodtitle v. Alker 116 Gordon v. Ashley 175 Gowan v. West. U. Tel. Co. 458 Graerson v. Grass 421 Graff V . Bloomer 341 Graham v. West. U. Tel. Co 551 V. West. U. Tel. Co 554 Grand Rapids B. Co. v. Jarvis 92 Grand Trunk R. Co. v. McMillan 434, 436 Granger's, etc., Ins. Co. v. Kamper 147 Granson v. Gross 421 Grant v. Courter 22 Grass v. N. Y., etc., R. Co 441 Gray v. Iowa Land Co 76 V. Jackson 270 v. Merrian 330 V. Mobile, etc., Co 343 728 TABLE OF CASES CITED. [References are to page numbers.] V. Mobile Trade Co 618 " V. New York State Tel. Co 102, 116 V. St. Louis, etc., R. Co 148 V. Telephone Co 204, 446, 626 V. West. U. Tel. Co. 41, 258, 259, 260, 273, 304, 415, 552, 574, 604 Great Northern R. Co. v. Eastern Counties R. Co 50 Great Western Railway Co. v. Crouch 434 V. Sutton 233 Greeley, etc., R. Co. v. Yeager 579 Greeman v. West. U. Tel. Co 541 Green v. Boston, etc., R. Co 482 V. West. U. Tel. Co 554 Greenberg v. West. U. Tel. Co 476, 597 Greenleaf v. Illinois C. R. Co 187 Greenwood v. Freight Co 623 Gregory v. Blanchard 53 V. German Bank 618 Gregstere v. Chicago 84 Grennell v. West. U. Tel. Co 356 Griesemer v. Mut., etc., Assn 466 Griffin v. Calver 521 Griggs V. Deal '• 676 Grimwell v. West. U. Tel. Co 29, 30 Grinnell v. West. U. Tel. Co. 316, 393, 482 Griswold v. New York, etc., R. Co 357 Grogan v. Adams Ex. Co. v. Haynes 392 Grove v. Fort Wayne 90 Groves v. Rowell 91 Grube v. Missouri Pac. R. Co. 485 Gulf, etc., Ry. Co. v. Baird 431, 442 v. Brown • ^92 V. Dwyer 442 y Geer 304, 407, 432 V. Holder 440 V Levy 423, 550, 557, 587 V. Loonie 306, 307, 512, 526 V. Morris 50 TABLE OF CASES CITED. 729 [References are to page numbers.] V. Newell 53, 54 V. Southwestern T., etc., Co 8, 145, 162 Gulf, etc., Tel. Co. v. Richardson 558 Gulf V. Wilson 317, 363, 483, 484 Gunn V. Ohio, etc., R. Co 182 V. Tidewater Canal Co 49 Gwynn v. Citizens Tel. Co 232, 237, 243, 469 H. Haas V. Myers 687, 693, 695 Haber, etc., Hat Co. v. Southern Bell Tel., etc., Co 577, 586 Hackett v. State 2, 3, 17, 22, 23, 28, 213, 216, 217, 238 Hadd V. United States Express Co 270 Hadley v. Baxendale 490, 523 V. West. U. Tel. Co. ..463, 494, 498, 507, 510, 530, 597, 600, 606, 609, 618. Hall V. Decier 636 V. Sullivan R. R. Co. 49 Halliday v. Kennard 346 V. St. Louis, etc., R. Co 441 Hallock V. Commercial Ins. Co 687 Hamill v. Ashley 671 Hamilton v. Lycoming Mut. Ins. Co 692 V. McPhcrson 306 V. Stodder 465 Hammon v. Hill 175 Hammond v. Beeson 649, 687 Hannibal, etc., Co. v. Shocklett 624 Hardwick v. Vermont, etc., Tel. Co 220 Hargrove v. West. U. Tel. Co 303 Harkness v. West. U. Tel. Co. 266, 282, 289, 299, 327, 354, 385, 448. 478, 512 Harmon v. Columbia, etc., R. Co 54 Harmony v. Bingham 344 Harper v. West. U. Tel. Co 282 Harrigan v. Chicago, etc., R. Co 4S6 Harris v. Howard 32 V. Louisville, etc., R. Co. 590 730 TABLE OF CASES CITED. [References are to page numbers.] V. Roud 342 V. West. U. Tel. Co 262, 371, 408, 477 Harrisbui-g v. Penn. Tel. Co 81 Harrison v. West. U. Tel. Co 700 Harstein v. West. U. Tel. Co 544 Hart V. Chicago, etc., R. Co 351, 358 V. Direct U. S. Cable Co 309 V. Rennessaler, etc., R. Co 441 V. Washington Park Club Co 182. 184 V. West. U. Tel. Co 29, 36, 119, 356, 359, 506 Hartzog v. West. U. Tel. Co 371, 568 Hasbrouck v. West. U. Tel. Co 305, 307, 308, 309 Hathaway v. East Tenn., etc., R. Co 485 Haubelt v. Rea., etc.. Mill Co 697 Havens v. Hartford, etc., R. Co 593 Havey v. Mich. Tel. Co. 190 Hawthorn v. Fraser 694 Hay V. Columbiana County Tel. Co Ill, 118 Hayden v. Smithfield Mfg. Co 193 Haymond v. Saucer 548 Haynes v. Raliegh Gas Co 182, 184 V. Thomas 112 Hays V. Houston 549, 578 V. Kennedy 341,344 V. Ottawa, etc., R. Co 51 V. Pennsylvania, etc., Co 229,233 v. West. U. Tel. Co 379, 381, 698 Haywood v. Wait 663 Hazard v. Day 673 Headley v. Northern Transf. Co 360 Hearn v. West. U. Tel. Co 600 Heil V. St. Louis, etc., R. Co 475 Heimann v. West. U. Tel. Co 323, 372 Heirn v. McCaughan 475 Heland v. Lowell 219 Hencky v. Smith 651 Hendershot v. West. U. Tel. Co 283, 310, 478 Hendrick v. Lindsey 455 TABLE OF CASES CITED. 731 [ Rof ercnci'S are to page numbers. J Hendricks v. West. U. Tel. Co. . . 272, 273, 267, 274, 282, 288, 478 Hennlng v. West. U. Tel. Co 174, 178, 182, 185, 583 Henisler v. Freidnian $79 Herfurth v. Washington 57g Herkell v. Pope L. R 700 Hermann v. West. U. Tel. Co 371 Herron v. West. U. Tel. Co 402, 514, 522 Herschfield v. Rock. Mt. Tel. Co 77, gg Hess V. Baltimore, etc., R. Co 92 V. Missouri Pac. R. Co 391 Hewitt V. West. U. Tel. Co 61, G2, 98, 109 Hewlett V. West. U. Tel. Co 319, 322,329 Heyneman v. Blake 153 Hibbard v. West. U. Tel. Co 30, 320, 498, 526 Hibernia Bldg. Assn. v. McGrath 330 Hienian v. West. U. Tel. Co 333 Higgins V. New Orleans, etc., R. Co. 357 Hill V. Surgeon 341 V. Syracuse, etc., R. Co 270, 366 V. West. U. Tel. Co 371, 372, 379, 381, 389, 393, 477 V. Winson 458 V. Woodman 670 Hill Mfg. Co. V. Boston 434 Hinchman v. Patterson, etc., R. Co 93 Hinkley v. Cape Cod R. Co 187 Hinkel v. Murr 188 Hinton v. Dibbon 358 Hirsh V. Northern C. R. Co., 232 Hoboken Printing Co. v. Kahn 579, 582 Hocker v. West. U. Tel. Co 284, 415, 530. Hodges V. West. U. Tel. Co 81. 102. 137. 139 Hoffbaur v. Railway Co 323 Holbrook v. Utica, etc., R. Co 186 Holladay v. Kenwood 34.^ Holliday v. National Tel. Co 174 Holsey v. Rapid Transit St. R. Co ... 102 Hood V. New York, etc., R .441 Hooker v. New Home & N. Co 92 Hopkins V. Atlantic, etc., R. Co 579, 580 732 TABLE OF CASES CITED. [References are to page numbers.] Hot Springs, etc., R. Co. v. Tripp 441 Houghton V. Mauerer 697 Houghton Com. Council v. Huron Copper Mining Co 154 Household F., etc., Co. v. Grant 692 Houston, etc., R. Co. v. Postal Tel. Cable Co 145 V. Randall 549 Hovey v. Michigan Tel. Co 174 Howe V. Planifield 219 Howley v. Whipple 645, 653, 697 Howser v. Cumberland etc., R. Co 184 Howsman v. Trenton, etc., Co 452 Hoyt V. Jeffers 201 Hubbard v. Concord 188, 189 V. West. U. Tel. Co 608 Huddleston v. Hendricks, 75 Hudson V. Chicago, etc., R. Co 188 • V. Northern Pac. R. Co 391 V. Postal Tel. Cable Co 278 Hudson River Tel. Co. v. Railway Co 9, 10 V. Watervlict Turnpike, etc., Co. 201 V. Jersey City, 71, 87, 169, 212, 221 V. Meyer, etc 79 Hughes V. West. U. Tel. Co 271, 506 Hull V. Jones 697 Hunn V. Gohdenbuck 184 Hunn V. Gohlon Philadelphia, etc., R. Co 184 Hunt V. Jennings 617 Hunter v. West. U. Tel. Co 300 Hussey v. Norfolk So. R. Co 578 Hyde Park v. Oak Woods Cemetery Association 166 I. Ide V. Leiser 695 Ikard v. West. U. Tel. Co 515 Illinois C. Rd. Co. v. Brown 486 V. Chicago 1^^ V. Cleveland Tel. Co 707 V. Cowles 436 TABLE OF CASES CITED. 733 [References are to page numbers.] V. Frankenburg 269, 395 V. Johnson 477 V. Morrisson 356 V. People 22 V. Turner 486 Indianapolis v. Consumers Gas Trust Co 77, 84 Indianapolis, etc., Rd. Co. v. Erwin 229, 232 V. Hartley 93 In re Bellona Company 145 Opinion of Justices 145 Pennsylvania Tel. Co 202, 625 Scranton 48 Insurance Co. v. Boom 342 V. Transportation Co 342 International, etc., Rd. Co. v. Cock 661 V. Eksford 51 V. Prince 649, 661 V. Telephone, etc., Co 578, 579 V. Underwood 391 Inter-Ocean Pub. Co. v. Associated Press 41, 226 International Ocean T. Co. v. Saunders 567 Iowa Union Tel. Co. v. Board of Equalization 10, 15 Irwin V. Great Southern T. Co 87, 98, 119 V. Nashville, etc., Rd. Co 441 V. Williar 414 Israel v. Redding 660 Issac Joseph I. Co. v. Richardson 687 J. J. K. Armsby Co. v. Eskerly 649 Jackson v. Wood 670 Jacobs V. Postal Tel. Cable Co 609 Jacobs V. Lindsey 661 James v. Marion Fruit Jar, etc., Co 694 V. Patten 12 Jaynes v. Omaha St. R. Co 106, 107 Jefferson v. Arch ^^^ Jelks v. Barrett ^~^ 734 TABLE OF CASES CITED. [References are to page numbers.] Jenney Electric Light, etc., Co. v. Murphy 190, 191 Jersey City v. Fitzpatrick 116 Johnson v. Alabama, etc., R. Co 354 V. Arunwine v • • • 655 V. King 690 V. Manhattan R. Co 189 V. Missouri Pac. R. Co 424 V. Northwestern Tel. Exch. Co 181 V. Pensacola, etc., R. Co 230, 233 V. State 48, 213, 216 V. St. Louis Dispatch Co 417, 583 V. West. U. Tel. Co 265, 501, 557 Johnston v. West. U. Tel. Co 375 Joliet, etc., R. Co. v. Shields 487 Jones V. Roach 435 V. West. TJ. Tel. Co 359, 383 Julia Bldg. Ass'n. v. Bell Tel. Co 19, 96, 100, 109 Julian V. West. IT. Tel. Co 283, 289 Jurley v. Union Branch R. Co . 93 K. Kansas City v. Marsh Oil Co 142 Kansas City, etc., Bell Tel. Co. v. Kansas City, etc., R. Co 142 Kansas, etc., R. Co. v. Northwestern, etc., Co 142, 145, 152 V. Kier 577 Kansas Pac. R. Co. v. Kessler 587 . V. Peavey 590 .Kaufman v. Wilson 663 Keating Imp. Co. v. Marshall Elec. Light Co 23 Keenan v. Cavanaugh 458 Keeny v. Grand Trunk 392 Kelley v. West. XT. Tel. Co 567 Kelly V. McDonald 577 Kemp V. West. "Union Tel. Co. 38, 174, 212, 267, 268, 270, 353, 354, 357, 363, 369, 419, 536 Kempner v. Cohn 694, 695 Kendall v. West. U. Tel. Co - 266, 301 Kennebec, etc., R. Co. v. Portland, etc., R. Co 50 Kennon v. West. U. Tel. Co 515, 551, 594 TABLE OF CASES CITED. 735 [References are to page numbers.] Kenton County Court v. Turnpike Co 51 Kentucky R. R. Tax-Case ^*22 Kenyon v. West. U. Tel. Co 541 Kerwhacker v. Railroad Co 312 Kester v. West. Union Tel. Co 64, 102, 113, 140, 552, 5CS Keyes v. Valley Tel. Co 174, 190 Klghtlinger v. West. U. Tel. Co 568 Kiley v. West. U. Tel. Co 36. 393, 403, 524 Kimball v. Moreland ^'86 King V. Kersey 548 Kingborne v. Montreal Tel. Co 498. 506 Kingdom v. Montreal Tel. Co 524 Kingford v. Hood 487 Kingsbury v. Kerwan 414 Kinney v. McDermott 421 Kinny v. Central R. Co 357 Kirby v. Citizen's Tel. Co 98. 237, 598 Kirby v. West. U. Tel. Co 237, 605, 615 Kirton v. North Chicago St. R. Co 577 Kline V. West. U. Tel. Co 568 Knott V. Raleigh •. 439 Koeling v. Chicago, etc., R. Co 149, 150 Koerner v. Oberly • • ■ : 576 Koono V. West. U. Tel. Co 303 Kowalsky v. Newark Pass. R. Co 180 Krautz v. Brush Electric Light Co 193 Kruger v. Wisconsin Tel. Co 102, 110 Kurtz V. Frank 578 Kyle V. Buffalo, etc., R. Co 481 L. Lackie v. Mut. U. Tel. Co 17, 56, 57, 125, 131. 132 Lacy V. Palmer 626 La Grange v. Southwestern Tel. Co 299. 300. 354, 399 Lainy v. United New Jersey R., etc., Co .75 Lake Shore, etc., R. Co. v. Foster 671 Lakin v. Railroad Co 51 Lamb v. Camden, etc., R. Co. "1?. 370 736 TABLE OF CASES CITED. [References are to page numbers.] Lancaster, etc., Turnpike Road Com. v. Columbus Tel. Co 102 Landie v. West. V. Tel. Co 267, 274, 551 Landsberger v. Magnetic Tel. Co 498, 510, 513 Lane v. Montreal Tel. Co 522 Langley v. West. U. Tel. Co 211, 327, 597 Larinin v. Carleyn 649 Larkin v. West. U. Tel. Co 174 Lassiter v. West. IT. Tel. Co 36, 356, 359 Lattomus y. Farmer's Mut. Ins. Co 671 Lauman v. Lebanon Valley R. Co 49, 51 Lawrence v. Milwaukee, etc., R. Co 690 V. Winona, etc., R. Co 269 Leavell v. West. U. Tel. Co 209, 232, 237, 265 Le Clercq v. Gallipolis 112 Lecoul V. Patic Jury 153 Lee V. Maryland Tel., etc., Co 174, 181 V. Mound Station 75 V. Selleck 465 • V. Village of Sandy Hill 578 V. West. U. Tel. Co 299 Leeds V. New York Tel. Co 175 Lefler v. West. U. Tel. Co 278 Lehman v. Brooklyn, etc., R. Co 573 Leloup V. Mobile 222, 620, 627, 628, 629, 636 Leonard v. Henebrickenson 343 V. New York, etc., Tel. Co. 30, 297, 306, 463, 490, 491, 497, 528 Leslie V. Harvey 681 Lester v. West. U. Tel. Co 372 Levet V. Creditors 421 Lewis V. Havens ^^"^ V. West. U. Tel. Co 568, 586 Liddell v. Sehline ^'^^ Lincoln v. Erie Preserving Co 673 Linley v. Richmond, etc., R. Co 434. 440 Lisse V. St. Louis, etc., R. Co 125 Little V. Chicago, etc., R. Co 466 Little V. Dougherty ^'^^ Little Nestucco Road Co. v. Tillamook Co 142, 143 TABLE OF CASES CITED. 737 [References are to page numbers.] Little Rock, etc., R. Co. v. Corcoran 343 Little Rocl£, etc., Tel. Co. v. Davis 29, 209, 292, 297, 299, 479, 600, 60G, 608 Little Rock, etc., Co. v. Talbat 392 Levering v. Union Transfer, etc., Co 366 Liverpool, etc., Co. v. Phoenix Ins. Co 361 Lockhardt v. Craig Street R. Co 100 London, etc., R. Co. v. Evershed 233 Long v. Pennsylvania R. Co 182, 184 Longby v. West. U. Tel. Co 617 Loper V. West. U. Tel. Co 474, 518, 550 Lord Bailiffs, etc., v. Trinity House 186 Louis V. Great West. R. Co 372 V. Ludwick 345 Louisiana Ice M'f g Co. v. New Orleans 75 Louisiana Mut. Ins. Co. v. Tweed 185 Louisville v. Louisville, etc 623 Louisville Coffin Co. v. Stokes 571 Louisville, etc., R. Co. v. Fleming 323 V. Gatheric 186 V. Grant 354 • V. Hull .* 551 • V. Natches 481 ■ V. People's St. R., etc.. Imp. Co 158 V. Postal Tel. Cable Co 125, 140, 156 ■ V. Railroad Com 210 V. Warren County 622 V. Weaver 270 V. Whetley County 144 Louisville Transfer Co. v. American Dist. Tel. Co 247. 470 Lovemon v. Jordan 694 Lowell v. Williams 697 Lowenburg v. Jones 439 Lowery v. West. U. Tel. Co . . .499, 500 Lowry v. Coster 576 Lueso V. Cannon 561 Luther v. Bridgeman 94 Lynch v. Forbis 153 Lynn v. West. U. Tel. Co 515, 551 T. & T.— 47. 738 TABLE OF CASES CITED. [References are to page numbers.] M. MacAndrew v. Electric Tel. Co 356 Mackay v. West. U. Tel. Co 42, 227, 289, 514, 506 Mackeon v. Citizen's R. Co 580 Maclay v. Harvey 694 Mactier v. Frith 465, 690, 692, 694 Madden v. Louisville, etc., R. Co 150, 156 Mad River, etc., R. Co. v. Barber 193 Magee V. Oversliiner 21, 22, 98, 101, 123 Magie V. Herman 653, 688, 697 Maghee v, Camden, etc., R. Co 392, 442 Magourik v. West. U. Tel. Co 428, 589, 679 Maguire v. Densmore 343 Mahan v. Michigan Tel. Co 54, 169, 245 Mahody v. Bushwick R. Co 93 Maine v. Grand Trunk, etc., Co 629, 634 Malochee v. Great Southern Tel., etc., Co 247, 470 Manier v. West. U. Tel. Co 381, 397, 398 Manley, etc., Wilmington, etc., R. Co 312 Manly Mfg. Co. v. West. U. Tel. Co 308, 309 Mann v. Birchard 292 Manville v. West. U. Tel. Co 26, 289, 354, 362, 496, 510, 512, 523 Maricopa, etc., R. Co. v. Arizona 624 Marietta, etc., R. Co. v. West. U. Tel. Co 69, 164, 167, 168 Markel v. West. U. Tel. Co 463 Market Street R. Co. v. Central R. Co 92 Marr v. West. U. Tel. Co 306, 355, 363, 369, 393, 494, 530 Marsh v. West. U. Tel. Co 551, 552 Marshfield v. Wisconsin Tel. Co 71 Marshall v. Eisen Vineyard Co 687 687 544 188 V. Jamison Martin v. Sunset Tel. Co. V. Towe V. West. U. Tel. Co 438, 453, 455, 513, 567 Marvin v. West. U. Tel. Co • 387 Maryland Tel., etc., Co. v. Cloman 190 Masher v. South Ex. Co 436 Mason v. Warner ^^^ TABLE OF CASES CITED. 739 [Uiftreiicos nro to page numbers.] Massengale v. West. U. Tel. Co 371, 372, 379, 397 Matteson v. Noyes 657 Mattie Bloomfield, etc.. Gas Light Co. v. Richardson 125 Mattis V. West. U. Tel. Co 616 Maxwell v. Central Dist, etc., Tel. Co 57, 58, 117, 119 May V. Cincinnati 632 V. West. U. Tel. Co 453, 460 Mayberry v. Johnson 670 Mayer v. Frobe 577 Maynard v. Fireman's Fund Ins. Co 417, 580 V. Syracuse, etc., R. Co 357 Mayne v. Fletcher 418 Mayor v. Bailey 178 Mayor, etc., of Mobile v. Yisille ...... 22 Mayo V. West. U. Tel. Co 211, 213 McAfee V. Southern R. Co. 597 McAllen v. West. U. Tel, Co 473, 498, 507, 556, 559, 586 McAndrew v. Electric Tel. Co 26, 27 McArther v. Dryden 459 McBlain v. Cross 672 McBride v. Sunset Tel. Co 490, 552, 567 McCall V. California 636 V. West. U. Tel. Co 498,504,506 McCamm v. Johnson County Tel. Co 94 McCarlie v. Atkinson 417 McCarn v. Int., etc., R. Co. 432, 434 McCarthy v. West. U. Tel. Co 558 Mccarty v. Gulf, etc., R. Co. .... 269 V. Southern, etc., Tel. Co 190, 191 McConnell v. Kibbs 115 McCord V. Pike 22 V. West. U. Tel. Co 427, 429 McCormick v. Dist. of Columbia 88, 123 V. Joseph 655 McCraig v. Erie R. Co 186 McCraine v. Wood 345 McCulley v. Cunningham 158 McCulloch V. Eagle Ins. Co 692 740 TABLE OF CASES CITED. [References are to page numbers.] McDonald v. Postal Tel. Co. 175 McDuffee v. Portland, etc., R. Co 229, 230 McElroy v. Buck 673, 675 V. Levey 673 McFee v. Vicksburg, etc., R. Co 580 McGee's Appeal 75 McGraw v. Baltimore, etc., R. Co 344 McGregor v. Wtest. U. Tel. Co 536 McHenrich v. Mississippi, etc., R. Co 312 Mclsaac v. Northampton, etc., Co 191 McLaren v. Detroit, etc., R. Co 432 McLaurin v. West. U. Tel. Co 615 McMahon v. Ida Min. Co 192 McMurty v. Louisville, etc., R. Co 485 McPeek v. West. U. Tel. Co. 265, 310, 334, 448, 458, 483, 486, 512, 514, 540 McQueen v. Middleton Mfg. Co 471 Meader v. White 421 Meadows v. West. U. Tel. Co 513, 515, 516, 551, 616 Meggett V. West. U. Tel. Co 524, 527 Meinett v. Snow 687 Melchert v. Am. U. Tel. Co , 415 Memphis Bell Tel. Co. v. Hunt 20, 120, 121, 124 Memphis, etc., R. Co. v. Birmingham, etc., R. Co 158 Menacho v. Ward 232, 233 Mentzer v. West. U. Tel. Co 457, 493, 551, 562 Mercantile Trans. Co. v. Atlantic, etc., R. Co 69 Mercantile Trust Co. v. Atlantic, etc., R. Co 165 Merchant's Bank v. State Bank 486 Merchant's Dispatch, etc., Co. v. Moore 402 Merchants' Nat. Bank v. Wheeling First Nat. Bank 653 Merrick v. Van Sautvoord 148 Meridian V. West. U. Tel. Co 71, 82 Merrill v. American Ex. Co 391 V. West. U. Tel. Co 496, 501 Merritt v. Earle 344 Merriweather v. Garrett 621 Merriweather, etc., R. Co. v. West. U. Tel. Co 167 Messenger v. Pennsylvania R. Co 232 TABLE OF CASES CITED. 7-H [References are to page numbers.] Metallic, etc., Co. v. Fitchburg R. Co. -158 Metropolitan Board v. Barrie 22 Metropolitan Grain & Stock Exch. v. Chicago Board of Trade 240 V. Mutual U. Tel. Co 412, 705 Metropolitan, etc., Tel. Co. v. Colwell Lead Co 102, 109 Meyer v. Manhattan, etc., Co 486 V. Village of Teutopolis 76 Michaels v. New York, etc., R. Co 344' Michigan Tel. Co. v. Boston Harbor 73 V. Charlotte 63, 171 V. St. Joseph 53, 54, 168, 169, 172 Mickel-wait v. West. U. Tel. Co 524 Middle Brig. Co. v. Marks 148 Midland Railway v. Bromley 442 Mielholland v. Thompson-Houston Elec. Light Co 23 Miles V. Postal Tel. Cable Co 175 Miliani v. Toguini 459 Millard v. Brown 577 Miller v. Butler 417 V. Ewer 148 V. Mariners' Church 305 V. Nugent 687 V. Rutland, etc., R. Co 50 V. Spaterman 114. 115 ■ V. Steam Navigation Co 341 Millikin v. Pratt 465 V. West. U. Tel. Co 291, 453, 455, 476, 493 Milton V. Denver, etc., R. Co 342 V. Hunter 561 Milwaukee, etc., R. Co. v. Kellog 342 Minnesota Linseed Oil Co. v. Collier White Lead Co. .687, 692, 694 Missouri ex rel. v. Bell Tel. Co. 240, 246 Missouri Furnace Co. v. Abend 187 Missouri Pac. R. Co. v. Breeding 440 v. Heidenheimer 666 v. International, etc., Co 357 v. Mackey V. Richmond 584 742 TABLE OF CASES CITED. [Ueferences are to page numbers.] V. Sherwood 357 V, Texas 589 V. Twiss 444 V. Wichita, etc., Co 439, 477 Mitchell V. West. U. Tel. Co 308, 363, 445, 694 Mobile V. Port of Mobile 637 Mobile, etc., R. Co. v. Edwards 660 V. Houkins 354 V. Postal Tel. Cable Co. 131, 141, 142, 144, 145, 146, 151, 152, 153, 160, 162, 163 V. Weiner 366 Monahan v. Miami Tel. Co 181 Mondon v. West. U. Tel. Co. 537 Monson v. Lathrop 417 Montgomery v. Muskegon Booming Co 182 • V. Parker 89 V. West. U. Tel. Co 615 Montgomery, etc., R. Co. v. Moore 439 Montreal Gas. Co. v. St. Lawrence 589 Monville v. West. U. Tel. Co 369 Moodj' V. Leverich 538 Moore V. Eufaula 63, 208, 223 V. Kendall 421 V. Shreveport 187 V. West. U. Tel. Co 598 Moose V. Carson 75 Moran v. New Orleans 636 Morgan v. Louisiana 49 V. People 663 Morning Journal Assn. v. Rutherford 584 Morrell v. Pack 188 Morris v. Hermen 682 ■ V. Missouri Pac. R. Co 466 V. West. U. Tel. Co. 414 Morris Canal, etc., Co. v. Townsend 148 Morris, etc., R. Co. v. Ayres 323, 324 Morrison v. West. U. Tel. Co 556 Morristown v. East Tenn. Tel Co 169 V. Keystone Tel., etc., Co 171 Morrow v. West. U. Tel. Co 518, 563 TABLE OF CASES CITED. 743 [References are to page numbers.] Morse v. Bellows 694 V. Minneapolis, etc., R. Co 188 V. Slue 345 Morton v. West. U. Tel. Co 566, 568 Moss V. Pacific R. Co 193 Moulton V. St. Paul, etc., R. Co 355 Mourmouth County Electric Co. v. Central R. Co 124 Mowry v. West. U. Tel. Co. 494, 511, 526 Munn V. Illinois 22, 21.3, 214, 215, 226, 235, 632 Munroe v. Thomas 51 Murphy v. Deane 312 Murray v. Flavell 451 Murrell v. Diggs 668 Muschamp v. Lancaster & P. J. R. Co 435 Musgrove v. Viclcsburg, etc., R. Co 618 Muskogee Nat. Tel. Co. v. Hall 60, 166 Mutual U. Tel. Co. v. Chicago 84, 85, 118, 119, 206, 220, 221 Myers v. Hudson Iron Co 190 Mynning v. Detroit, etc., R. Co 485, 486 N. Naglee v. Alexandria, etc., R. Co 53 Nalley v. Hartford, etc., Co 188 Nashville, etc., R. Co. v. David 341 V. Estis 345 V. Spraybury 270 National Bank v. National Bank 681 National Foundry Works v. Oconto U. Co 53 National Tel. News Co. v. West. U. Tel. Co 707 Naylee v. Alexandria, etc., R. Co 51 Naves v. Smith 193 Nebraska Tel. Co. v. Jones • 180 v. State 213, 242 V. West Independent Long D. Tel. Co 74 V. York Gas Light Co 201 Neely v. State ^^ Nelson v. Boyston ^''l . V. West. II. Tel. Co 503, 506 Newberg Petroleum Co. v. Weare 1-18 New Brunswick, etc., Co. v. Tiers ^-^l 744 TABLE OF CASES CITED. [References are to page numbers.] Newcomb v. De Roose 695 New Jersey Steam Nav. Co. v. Merchants' Bank 22 Newman v. West. U. Tel. Co 568 New Orleans v. Kaufman 622 New Orleans, etc., R. Co. v. Gray 153 V. Hurst 475 V. Rabasse 158 V. Schmeider 589 V. Southern, etc., Tel. Co. 7, 17, 69, 82, 84, 125, 136, 144, 169, 170, 212, 222, 223, 632, 633 • V. Statham 576, 580 Newson v. Charles Street Ave. Co 75 V. Jackson 655 Newton v. Ala., etc., R. Co 158 New York City v. Second Ave. R. Co 632 New York, etc., Co. v. Bennett 174 V. Bound Brook 7 V. Central U. Tel. Co 141 V. East Orange 77, 87, 85, 221 V. Dryburg . .30, 297, 299, 306, 399, 428, 453, 459, 528, 697, 464 V. Metropolitan G. L. Co 145 V. Sabin 624 V. Schuyler 57S V. Winans 51, 52 • • V. Young 148 New York Rubber Co. v. Rothery 593 Nicholas v. New York, etc., R. Co 357 Nichols v. Hubbard 59 Nicholds V. Minneapolis 19, 177, 180, 186 Nickerson v. Spindell 653 Nicoll V. New York, etc., Tel. Co 70, 102, 103, 123 Norfolk, etc., R. Co. v. Wysor . '. 475 Norman v. West. TJ. Tel. Co 275, 279 Norris v. Blair 674 V. Litchfield 312 Norristown v. Keystone, etc., Co 171 Norshfield v. Wisconsin Tel. Co 80, 118 Northcates v. Bochelder 193 North Chicago St. R. Co. v. Duchner 567 TABLE OF CASES CITED. . 74r> [Referencci are to page numbers.] North Missouri, etc., Co. v. Maguire 621 North Packing, etc., Co. v. West. U. Tel. Co 362 Northern, etc., R. Co. v. Mares 487 Northwestern Tel. Exch. Co. v. Anderson 169, 212, 221 V. Chicago, etc., R. Co 8. 68, 140 V. Minneapolis 73, 169, 220 V. Twin City Tel. Co 168 Norton v. Small 460 Numedy v. Chase 192 Nye V. West. U. Tel. Co 418 O. Oakland R. R. Co. v. Oakland, etc., Co 47 Oakman v. Rodgers 674 O'Hare v. Railroad Co 151 Ohio Life Ins., etc., Co. v. Merchants Ins.. etc., Co 148 Ohio Rd. Co. V. Applewhite 267 V. Dunn 486 Oil Creek, etc., R. Co., v. Keighorn 185 Olcott V. Supervisors 22 Old Colony R. Co. v. Tripp 323 Old Colony Trust Co. v. Wichita 84, 172 Omaha v. Flood 57, 58, 117 Oregon R. Co., etc., Co. v. Oregonian R. Co 52, 53 Oregon Short Line R. Co. v. Postal Tel. Cable Co 144 Oregon Steamship Co. v. Otis 644. 646. 653. 656, 657 Orr V. Bank of U. S 578 Osborn v. New York, etc., Co 624 Osborne v. State 208. 627 Oskamp v. Gadsen ^^"^ Ottawa V. Sweely ^^^ Owens-boro-Harrison Tel. Co. v. Wisdom 242. 245. 247 P. Pacific, etc., Tel. Co. v. Chicago, etc., Co 60. 61, 74 . V. Fleischner 387, 490. 513. 544 V. Irwin 102.109 V. Palo Alto Bank 427 V. Underwood 40, 375, 376 746 TABLE OF CASES CITED. [References are to page numbers.] V. West. U. Tel. Co 69 Packard v. Taylor 342, 344 Paducah Lumber Co. v. Paducah, etc., Co 452 Paine v. Tillinghost 671 Palmer v. Atchison, etc., R. Co 361 Palmer v. M. P. Rolling Mill Co 674 Park V. Detroit Free Press Co 418 V. Whitney 694 Parker v. Flagg 34I V. Smith 624 Parkinson v. State 598 Parks V. Alta, etc., Tel. Co 26, 27, 249, 494, 495, 544 Passmore v. West U. Tel. Co. 30, 393 Patah V. Covington 186 Pate V. Wright . . 422 Patrick v. Bowman 686 Patton V. Chattanooga 98 Paul V. Coover 76 Pearce v. Drew 20 V. The Thomas Newton 341, 342 Pearsall v. West. U. Tel. Co 356, 393, 402, 479, 481, 526, 698 Pearson v. West. U. Tel. Co 39 Peay v. West. U. Tel. Co 567 Peck V. Chicago, etc., R. Co 210 V. Smith 104 V. Vandemark 674 Peddicord v. Baltimore, etc., R. Co 92 Peebles v, Patasco Guano Co 578 Pegram v. West. U. Tel. Co. 268, 324, 356, 359, 464, 500, 700, 701 Peidmont Electric Illuminating Co. v. Patterson 193 Pelham v. Steamboat Messenger 597 Pennington v. West. U. Tel. Co. 524 Pensacola Tel. Co. v. West. U. Tel. Co. 17, 61, 62, 63, 68, 69, 70, 136, 166, 167, 175, 620, 626, 636 Pennsylvania Co. v. Stegemeir 486 Pennsylvania, etc., Ins. Co. v. Mechanic's, etc., Co. 466 Pennsylvania, etc., R. Co. v. St. Louis, etc., R. Co 49, 51, 53 Pennsylvania Tel. Co. v. Varnan 175, 188, 189 People V. Albany, etc., R. Co 50 TABLE OF CASES CITED. 747 [References are to page numbers.] V. Budd 213. 214 V. Central New York, etc., Co 246 V. Chicago Trust Co 51 V. Dolan 628, C30 V. Eaton 98, 100 V. Hammond 644, 649, 656 : V. Hudson River Tel. Co 243, 338 V. Lambert 650 V. Manhattan Gas Light Co 238 V. Metropolitan Tel., etc., Co 118, 119 V. Mut. Tel. Co 90 V. People's Ins. Exch 485, 486 V. Squire 63, 170, 171, 205, 206, 207, 220 V. Supervisors of Ouida County 92 V. Tierney 628 V. Village of Brighton 153 V. Ward 663, 664 V. Wabash, etc., R. Co , 231 V. Wemple 208 V. West. U. Tel. Co 338 People's Pass R. CoTv. Baldwin : 169 People's Tel., etc., Co. v. Burks, etc., Turnpike Road 8, 74 Peorey v. Railroad Co 151 Pepper v. West. U. Tel. Co. 22, 40, 270, 306, 355, 363, 369, 457, 465, 511, 512, 532, 698, 700, 701 Perkins v. Portland, etc., R. Co 434 Perry v. Dickerson 538 V. German American Bank 644 V. Mt. Hope Iron Co 466 695 ■ V. New Orleans, etc., R. Co 116 Persall v. West. U. Tel. Co 270, 271, 280, 299 Peterson v. Case ^^^ V. Chicago, etc., R. Co 441 V. West. U. Tel. Co 417, 589 414 Pexley v. Bayton Phelps V. Stillings '^''* V. Winona, etc., R. Co 189 Philadelphia v. Postal Tel. Cable Co 222 V. West. U. Tel. Co ^^ Philadelphia, etc., R. Co. v. Anderson 184 748 TABLE OF CASES CITED. [References are to page numbers.] V. Hoeflich 580 V. Pennsylvania 636 V. Quigley 584 Philadelphia Fire Assn. v. New York 212 Phillips V. Denver 87 • V. Dickerson 186 V. Hoyle 549 V. North Car 434 V. Postal Tel. Cable Co 64, 136 V. West. U. Tel. Co 383 Philipson v. Bates 655, 657 Pickerson R. M. Co. v. Grand Rapids, etc., R. Co 435 Pierce v. Drew 17, 98, 100, 109, 123, 125 V.Emery 51, 52 Pinckney v. West. U. Tel. Co 32, 251, 252, 297, 393 Piollet V. Sininurs 189 Pitlock V. Wells 438 Pittsburg, etc., R. Co. v. Allegheny County 50 V. Backers 628 • V. Hozen 348 V. Karns 312 V. Lyon 323 V. Nuzzum 267 V. Slasser 581 V. State 621, 623 Plaisted v. Palmer 421 Platz V. Cohoes 424 Playford v. United Kingdom, etc., Tel. Co 446, 451 Polack V. Trustees of San Francisco Orphan Asylum 76 Poling V. Ohio River R. Co 487 Pope V. West. TJ. Tel. Co 266, 271, 274 289, 290, 305, 617 Port V. Davis 687 Portance v. Lehigh Valley Coal Co 192 Portsmouth, etc., R. Co. v. Forseyth, 231 Postal Tel. Co. v. Adams 620, 626, 627, 628 V. Alabama, etc., R. Co 158 ■ ■ V. Baltimore 81 V. Barwise 490 TABLE OF CASES CITED. 749 [References are to page iiutuberB.] V. Bruen 115 V. Charleston 632 V. Chicago, etc., R. Co 144 V. Cleveland, etc., R. Co 70. 145, 148 V. Coats 175 V. Coote 190 • V. Eaton 102, 115. IIC, 123 V. Farmville, etc., R. Co 145 V. Jones 174, 180, 183. 184, 187 V. Lathrop 268, 506, 513, 514 V. Louisiana Western R. Co 141, 142, 144 V. Louisville, etc., R. Co 158, 160, 162 V. Morgan's Louisiana R., etc., Co. 70, 71, 72, 73, 125, 135, 144, 162 V. Norfolk, etc., R. Co 71, 72, 113, ]26, 135, 140 ■ V. Oregon Short Line R. Co. 125, 140, 143, 144, 145, 146, 149, 151, 152, 153, 154, 155, 160, 162 . V. Rhett 266, 523, 526 V. Richmond 620, 626, 627, 638 V. Robertson 360 V. Schaeffer 306, 362, 532 V. Southern R. Co 70, 135, 145 V. Vane 24 V. Zappi I'^S Potter V. Springfield Milling Co 671 Potts V. West. U. Tel. Co 516 Potuliu V. Sanders 428 Potwin Place v. Topeka R. Co 469 Powell V. Brunner 649 Prather v. Railway Co 323 Prather v. Wilkins ^55 Presbyterian Church v. New York City 20." Press Pub. Co. v. Munroe 577 Primrose v. West. U. Tel. Co 324, 389, 393, 490. 50.^ Pugh V. City, etc., Tel. Co 242, 337. 416 Pullman v. Cincinnati, etc., R. Co 51 Pullman Palace Car Co. v. Pennsylvania 627. 629 Purcell v. St. Paul City R. Co 573 Pursell V. English ^°^ 750 TABLE OF CASES CITED. [References are to page numbers.] Q. Queen v. Peters 482 Quill V. Empire State Tel. Co 181 Quimby v. Boston, etc., R. Co 357 R. Ragan v. Aiken 50, 232 Haggles V. Illinois 22 Haggles V. People 22 Raht V. Southern R, Co 75 Railway Commissioners v. West. U. Tel. Co 213 Railroad Company v. Brown 51 V. Fuller 22 V. Griffin 552,591 V. Manchester Mills 392 V. Pitty 151 V. Railway Company 166 V. Reeves 343 V.Richmond 22 V. Speer 151 V. West. U. Tel. Co 211 Ralston v. Weston 75 Ramsdale v. Horton 453 Randall v. Baltimore, etc., R. Co. 485 Rapid T. Co. v. Hess 220 Rasser v. West. U. Tel. Co 287 Ratterman v. West. U. Tel. Co. 636 Read V. Spaulding 341, 344 Readman v. Conway 188 Reagan v. Mercantile Trust Co 640 Reckmond v. Southern Bell Tel., etc., Co 16 Redfleld v. Shearman 550 Redington v. Pac. Postal Tel. Cable Co. 480 Redpath v. West. U. Tel. Co 36, 356, 393 Reed v. West. U. Tel. Co. 21, 36, 39, 40, 226, 227, 237, 271, 299, 362, 464, 478, 515, 532, 551, 554, 698 Regina v. United Kingdom Electric Tel. Co 87, 90, 118 Reiff V. West. U. Tel. Co 50 TABLE OF CASES CITED. 701 [RefereDces are to page nombers.] Reis V. Hillman OCO Reliance Lumber Co. v. West. U. Tel Co 498, 503, 524, 654, 657 Renihan v. Wright 548 Reuth V. Electric Tel. Co 227 Rex V. Johnson 561 Reynolds v. West. U. Tel. Co 287, 306, 524, 534, 646 Rice V. Kansas Pac. R. Co 391 V. Sovery • 159 Richards v. Merrimac, etc., R. Co. 50, 51 Richardson v. Sibley 49, 51, 52 Richie V. Bass 646, 647 Ricker v. New York, etc., Co 178 Richketts v. Chesapeake, etc., R. Co 54 V. West. U. Tel. Co 561 Richmond v. Southern Bell Tel. Co 7, 16, 62, 70, 169 V.Sandburg 649,687 Richmond, etc., R. Co. v. Anderson 312 V. Jefferson 582 Richmond Water Works Co. v. Richmond 50 Richwald v. Commercial Hotel Co 148 Rigmy v. City of Chicago 92 Riley v. Farnsworth 674 V. West. U. Tel. Co 387 Riordan v. Guggerty 656 Rippey V. Miller 577 Rittenhouse v. Independent Line of Tel. 299, 307, 464, 479, 511, 514, 530, 698 Rixke V. West. U. Tel. Co 600, 607 Roach V. Jones ^1 •"»' 551 Road V. Chicago, etc., R. Co 618 Roake V. American Tel., etc., Co 7, 111, 132 Roberts v. Wisconsin Tel. Co 7, 15, 175. 181, 182 Robinson v. West. U. Tel. Co 545, 561, 565 Robinson Match Works v. Chandler 687 Roche V. West. U. Tel. Co 286 Rocke V. American Tel., etc., Co 132 Rockford V. Tripp ^^^ Roddy V. Missouri Pac. R. Co 182 752 TABLE OF CASES CITED. [References are to page numbers.] Rogers v. West. U. Tel. Co 422, 600, 601 Rohe V. West. U. Tel. Co 285 Rolseth V. Smith 190 Root V. Long Island R. Co 230 V. Great Western R 434 Roper V. Claj' 548 V. McWhorter 49, 50 Rose V. United States Tel. Co 461, 697 Ross V West. U. Tel. Co 311, 313 Rosser v. West. U. Tel. Co 299, 556 Rowell V. West. U. Tel. Co 490, 555, 559 Rowen V. Portland 112 Ruse V. West. U. Tel. Co 301 Rushville Co-operative Co. v. Irvin 242, 337 Russ. V. Penn. Tel. Co 118 Russell V. West. U. Tel. Co 397, 398, 567 Ryan v. Fowler 193 V. Missouri, etc., R. Co 343 Ryn V. Darby 421 S. Samuels v. Richmond, etc., R. Co 578, 580 San Antonio, etc., R. Co. v. Limberger 103 V. Southwestern Tel. Co 8, 12, 13, 20, 162 Sanders v. Stuart 506 Sanford v. Howard 694 San Francisco v. West. U. Tel. Co 626, 640 Sangamore, etc., Co. v. Morgan 621 Sargent v. Boston, etc., R. Co 233 Savannah, etc., R. Co. v. Harris 440 ■ V. Mayor, etc., of Savannah 92 V. Postal Tel. Cable Co 144, 147, 151 Saveland v. Green 652, 653, 687, 688, 697 Savings Bank v. Thornton 452 Sawyer v. Davis 215 Saybolt v. New York, etc., T. Co 186 Scanton v. Boston, etc., R. Co 190 Schaff V. Cleveland, etc., R. Co 102 TABLE OF CASES CITED. 753 [References are to page numbers.] Schaffer v. Sawyer 697 Schearer v. Harbor 667 Scheffer v. Washington, etc., R. Co 499 Schippel V. Norton 584 Schmidt v. Draper 75 Schneider v. Sampson 421 Schofield V. Chicago, etc., R. Co 485 V. Horse Spring Cattle Co 663 V. Lake Shore, etc., R. Co 232, 233 Schouberg v. Chemy 687 Schultz V. Phoenix Ins. Co 687 Schurmeir v. St. Paul 113 Schwartz v. Atlantic, etc., Tel. Co 30, 383, 393 Scothern v. South, etc., R. 435 Scott V. Jarnague on Tel 569 Seaver v. Boston, etc., R. Co 193 Seaboard Mfg. Co. v. Woodson 593 Seaboard Tel., etc., Co. v. Kearney 84, 220 Searles v. Manhattan R. Co 186 Seifert v. City of Brooklyn 92 Selden v. Cashman 577 Senaca Road Co. v. Auburn, etc., R. Co 593 Sewell V. Cohoes 188 Shank v. Butch 647 Shapp V. Jones '^48 Shawyer v. Chamberlain 663, 665 Sheffield v. Central U. Tel. Co 19, 77, 174, 180 Sheldon v. West. U. Tel. Co 175, 205 Shepard v. Gold, etc., Tel. Co 323, 412, 705 Shepherd v. Baltimore, etc., R. Co 114, 115 Sheply V. Atlantic, etc., R. Co 50 Sherrill v. West. U. Tel. Co 278, 299, 354, 372, 402, 474, 515, 551 Sherwin v. Nat. Cash Reg. Co 696 Shingleur v. West. U. Tel. Co 271, 306, 446, 457. 700 Shorpless v. Ullay, etc., -- Short V. Threadgill • 687. 690 Show V. Postal, etc., Cable Co 361 T. & T.— 48. 754 TABLE OF CASES CITED. [References are to page numbers.] Sices V. Lowell, etc., R. Co 1'74 Silver Creek, etc., Co. v. Mangum 585 Simmons v. West. U. Tel. Co 563, 575 Singer Mfg. Co. v. Hardee 212 V. Holdford 697 Sinking Fund Case 215 Skipp V. The E. C. R. Co 193 Slater v. South Carolina R. Co 342 Slaughter House Cases 22 Smith V. Arnold 674 V. Banker 618 V. Bouvier 414 V. Easton 645, 653, 656, 672, 699 ■ V. Gold, etc., Tel. Co 32S. 412, 705, 706 V. Mo., etc., R. Co 442 V. New York, etc., R. Co 357, 424 V. North Carolina R. Co 392 V. Peninsular C. Works 193 V. Turner • • . . 636 V. West. U. Tel. Co. 29, 40, 257, 258, 259, 266, 268, 269, 273, 325, 327, 350, 354, 368, 412, 414, 418, 431, 436, 438, 490, 493, 498, 503, 545, 705 Smithson v. United States Telegraph Co 32, 252, 297 Society Anonyme, etc., v. Old Jordan Mln., etc., Co. 690 Soles V. Hickman 674 Solon V. Chicago, etc., R. Co 436 So. Relle. v. West. U. Tel. Co 473, 549. 554, 557 Soumet V. National, etc 394 South Carolina, etc., R. Co. v. American Tel. Co 145 South Covington, etc., R. Co. v. Berry 87 Southeastern R. Co. v. European, etc.. Electric Printing Tel. Co. 140 Southern Bell Tel. Co. v. D'Alenberte 208 V. Francis 90, 113, 121, 122, 221 V. Lynch 186 V. McTyer 175, 176, 177, 182, 184, 186 V. Richmond 71, 79 Southern, etc., Co. v. Henlein 697 Southern, etc., Co. v. Howell 644 TABLE OF CASES CITED. /OO [References a^e to piige iiuinberH.] V. Kendrick 577 V. Newby 343 V. Orton 49 V. Rice 587 V. Southern T. Co 13C, 137. 140 V. Womack 345 Southern Exp. Co v. Caldwell 30, 40 V. Caperton 372 V. Colwell 372 V. McVeigh 458, 475 V. Moon 370 Southern Kan. R. Co. v. Rice 569 Southern Light, etc., Co. v. Board of Alderman 169 Southern Pac. R. Co. v. Rud 93 Southern Pac. R. Co. v. Southern Cal. R. Co 143, 146 Southwestern Tel. Co. v. Chicago, etc., R. Co 68 V. Dale 254, 256 V. Getcher 307, 518 ■ V. Gulf, etc., R. Co 8, 143, 162 V. Ingrands 175, 178 V. Kansas City, etc., R. Co 144, 162 V. Priest 194 V. Robinson 174, 178, 182, 184, 186, 188 V. Southern, etc., T. Co 68, 78, 140 V. Taylor 256, 307, 434, 442 Southwork Nat. Bank v. Smith 663 Spails V. Poundstone -117 Sparkman v. West. U. Tel. Co 515, 558 Spellman v. Richman 578 Spellman v. Richmond, etc., R. Co 579 Spokane v. Colley 102 Spokane Trunk & Dray Co. v. Hoefer 579 Sprague v. West. U. Tel. Co 494, 497, 504. 514 Spring Valley Water Works v. Schottles 22 Spurlock V. Missouri Pac. R. Co 481 Squire v. West. U. Tel. Co 354, 442. 496, 498. 525. 526. 692 Stafford v. West. U. Tel. Co 505 Stamey v. West. U. Tel. Co 40, 263. 326, 390. 393, 397. 398 756 TABLE OF CASES CITED. [References are to page unmbers.] Standard Oil Co. v. Tierney 590 Standard, etc., Co. v. White Lim., etc., Co 354 Stansell v. West. U. Tel. Co 545, 552, 567 State V. American, etc.. Commercial News Co 226 V. Archer 598 V. Atchison R. Co 53 V. Bell Tel. Co 15, 41, 236 V. Boston, etc., R. Co 148 — V. Cassidy 632 V. Central New Jersey Tel. Co 14, 154, 621 V. Choven 325 V. Citizens Tel. Co 33, 34, 35, 232, 235, 236, 243, 246, 469 V. Consolidated Coal Co 50 V. Cumberland, etc., Tel. Co 71, 73, 74 V. East Cleveland R. Co 47 V. Espouzie 649 V. Flad 71 . 79 V. Fa-ench 208 V. Harbourna 626 V. Hayworth 622 V. Herod 632 V. Holmes 663 V. Hopkins 658 V. Jolly ' 648 V. Kinloch Tel. Co 243, 246 V. Loverack 93, 103 V. Litchfield 679 V. Maine Cen. R. Co 187 V. Mayor, etc., of Mobile 93 V. McCrystol 598 V. Nebraska Tel. Co 232, 235, 236, 237, 243, 469 V. Overton 323, 324 V. Patterson 582 V. Real Estate Bank 46 V. Scott 149 V. Sheboygan 73, 169, 171, 224 V. Sherman 148 V. Spokane "^l- '^^ TABLE OF CASES CITED. "57 [Referenci'8 are to page nuiuberB.] V. Standard Oil Co 51 V. St. Louis, etc., R. Co 98 V. Tel. Co 218 V. Walsh 598 V. Western Irrigating Canal Co 47 State Bank v. West. U. Tel. Co 429 Steamship Co. v. Joliffe 204 Steele v. Epsom l'*^ V. McTyre 344 V. Lowensend ^^^ V. Townsend ^^^ Stein V. Burden 593 Sterne v. Metropolitan Tel., etc., Co 247 Stevenson v. McLean 687, 692 V. Montreal Tel. Co 334, 432, 498 Stewart v. Clark ^^0 Stiles V. West. U. Tel. Co 354, 545 St. J. & D. C. R. Co. V. Dryden 1-37 St. Louis V. Bell Telephone Co 7, 14, 22, 76, 96. 213, 224 St. Louis V. Herthel 219 St. Louis V. McLaughlin 219 St. Louis V. West. U. Tel. Co. 62, 63, 65, 78, 80, 81, 82, 83, 84, 169, 222, 223, 637, 640 St. Louis Cons. Coal Co. v. Haenni 577 St. Louis, etc., R. Co. v. Hannibal, D. Co 142 V. Hardy 323 V. Hill 229, 231, 232 V. Knight •^^'^ V. Marrs '^32 V. Mo. Pac. R. Co -1^5 V. Postal Tel. Co 131, 133, 143, 144, 161, 162, 163 V. Southwestern Tel. Co 144, 146, 147, 148. 151 V. Weakley ^^^ V. Worthey ^^2 Stockton V. Central R. Co 50 Stone V. Justice *^3 Stork V. Railroad Co 151 Storm V. Green ^^^ Stowers v. Postal Tel., etc., Co 109. 123 758 TABLE OF CASES CITED. [References are to page numbers.] St. Paul V. Freedy 80 Strahorn H. E. C. Co. v. West. U. Tel. Co 310 Strauss v. Miertief 538 V. Wabash, etc., R. Co 341 V. West. U. Tel. Co 425 Stuart V. West. U. Tel. Co 550, 577, 579, 586, 591, 592 St. Vincent O. Asylum v. Troy 75 Sub-Marine Tel. Co. v. Dickson 194 Sullivan v. Kuykendall 665 Summerfield v. West. U. Tel. Co 568 Summit T. P. v. New York, etc., Tel. Co 220 Sunset Tel. Co. v. Medford 169 Susquehana Canal Co. v. Bonham 9, 51 Sutton V. W^anwatosa 424 Swain v. West. U. Tel. Co 380 Swan V. Williams 125 Sweet V. Postal Tel., etc., Co 331, 334 Sweetland v. Illinois Tel. Co. 30, 297, 315, 354, 362, 367, 369, 387, 393, 397, 480 T. Taggart v. Interstate Tel. Co 7 Taggart v. Newport St. R. Co 137 Talkington v. Parish 486 Taliferro v. West. U. Tel. Co 551 Taylor v. Bradley 538, 593 V. Carondelet 218 V. Henriker 114, 115 V. Maine Cent. R. Co 435 V. Merchant's Fire Ins. Co 692, 696 V. Secor 628 V. Steamboat Robert Campbell 648, 687, 697 V. West. U. Tel. Co 598, 600 Taylor, etc., R. Co. v. Taylor 190 Telephone Company v. Brown 282, 283, 254, GOO V. Crider 333 — V. Texas 636 Telegraph Co. v. Griswold 40, 322 TABLE OF CASES CITED. 759 [References are to page numbers.] V. Telephone, etc., Co 244, 245 Tennessee West. U. Tel. Co. v. Mellon 591 Tentin v. Hurley ^^^ Terre Haute, etc., R. Co. v. Clem 188 V. Rodel 11^ V. Stockwell ^^^ Tessat v. Great Southern Bell Tel. Co 120, 121 Tex., etc., R. Co. v. Adams 323, 440 Texas, etc., R. Co. v. Postal Tel. Cable Co 162 Texas Midland R. Co. v. Southwestern Tel., etc., Co 162 Texas Tel. Co. v. Seiders 324, 339 Thomas v. Railroad Co 50, 51, 53, 54 ■ V. Wabash, etc., R. Co 354 V. Western Jersey R. Co 52 . V. West. U. Tel. Co 1'74, 574 V. Winchester ^^^ Thomas L. & T. Co. v. Seville 686 Thomas Mfg. Co. v. Prather 452 Thompson v. New Orleans 593 V. Pac. R. Co. 621 V. Waters 1'*^ V. West. U. Tel. Co. 275, 279, 355, 363, 369, 421, 448, 471, 511, 534, 594, 598 Thorne v. Barwick ^^'^ Thorp V. Philbin ^^3 V. West. U. Tel. Co 281 Thurlo V. Massachusetts 636 Thurn v. Alta Tel. Co 597 Tietsam v. Hay ^^ Tiffany v. U. S. Illuminating Co 1'^. 102 Tinsman v. Belvidere Dec. R. Co 1-5 Tippecanoe County v. Lafayette, etc., R. Co 51 Tissot V. Great Southern Telegraph, etc., Co 124 Tobin V. Shaw 548, 655 V. W.est. U. Tel. Co 308, 370, 399, 457. 564 Toledo V. West. U. Tel. Co 2, 60, 63, 70 Toledo, etc., R. Co. v. Dunlap l'*^ V. Patterson ^^^ 760 TABLE OF CASES CITED. [References are to iiage numbers.] Toll Bridge Co. v. Hartford, etc., R. Co 142 Tomblin v. Calen 414 Tompkins v. Little Rock, etc., R. Co 624 Tompkinson v. Cartlidge 663 Toonej^ v. Brighton, etc., R. Co 186 Townsend v. Rockman 452 Treadmill v. Salisbury Mfg. Co 51, 53 Trester v. Missouri Pac. R. Co 149 Trevor v. Wood 466, 672, 687, 692, 697 Troett V. Decker 422 Troy and Boston R. Co. v. Boston Hoosac Tunnel, etc., R. Co. 50 Troy, etc., R. Co. v. Kerr 50 True V. International Tel. Co. 26, 306, 319, 320, 321, 322, 369, 384, 496, 511, 526, 687, 692 Tufts V. Plymouth Gold M. Co 538 Turn V. Alta Tel. Co 611 Turner v. Hawkeye Tel. Co 299, 411, 434, 479, 496, 526, 533 Turnpike Co. v. News Co 125 V. Railroad Co 10 Tweddle v. Atkinson 451 Twelfth Market St. Co. v. Philadelphia, etc., R. Co 142, 145 Tyler v. Todd 188 Tyler v. West. U. Tel. Co. 27, 30, 33, 35, 39, 298, 299, 306, 320, 354, 362, 364, 367, 369, 395, 479, 494, 495, 510, 552, 567, 568 U. Uline V. New York Cent, etc., R. Co 538 Union Elec. Tel. etc., Co. v. Applequist 102 Union Nat. Bank v. Mills 694 Union Pacific R. Co. v. Colorado 157 V. Colorado Postal T. Co.... 131, 132, 144, 147, 149, 151, 157 V. Colorado R. Co 161 V. Pendleton 621 Union Trust Co. v. Atchison, etc., R. Co 144, 164 United Electric R. Co. v. Shelton 175 United States v. Babcock 644, 660, 681, 682 V. Colt 11 V. Hartwell 598 TABLE OF CASES CITED. 761 [References are to page numbers.] V. Northern Pacific R. Co 50. 71, 204, 205, 444 V. Pacific Rd. Co ^^ V. Palmer ^^^ V. Union Pacific Rd. Co 11, 50, 71, 204, 205 V. West. U. Tel. Co 50, 52. 204, 205 V. Wiltberger ^^^ United States Ex. Co. v. Blackman 370 441 V. Harris United States Tel. Co. v. Gildersleeve. .36, 299, 356, 404, 449, 456, 506 V. Lyman V. Wenger 306. 318, 479, 483, 494, 511, 526 V. Western U. Tel. Co 437. 463, 611 Utica V. Utica Tel. Co ^^^ Utley V. Donaldson ^^'^' ^^^ V. VanBachen v. People ^^^ Vanderkar v. Rensselaer, etc., R. Co 618 Vanderlip v. Grand Rapids ^44 Van Dyck v. McQuad ^^^ Van Toll v. Southeastern R. Co. 32 Vassarv. Camp ^^5. 692 Vermont, etc., R. Co. v. Fitchburg R. Co 444 187 Vicksburg v. Hennessey 75 V. Marshall fiOA Vicksburg Bank v. Worrell Victorian R. Co. v. Coultas, L. R. ^"^3 Victory Printing Co. v. Bucher ^^'^ 452 Vrooman v. Turner W. W. & N. O. Tel. Co. V. Hobson 306 Wabash , etc., R. Co. v. Brown 356 V. Illinois ^^^ Wadsworth v. West. U. Tel. Co. 258, 418, 453, 454, 457, 459. 460, 463, 552, 554, 557, 571, 5(0 Wald V. Kansas City, etc., Co 486 Walden v. West. U. Tel. Co ^26 590 Walker v. Erie R. Co 32 V. York. etc.. R. Co 762 TABLE OF CASES CITED. [References are to page numbers.] Wallace v. Clayton 341 Wallingford v. Columbia, etc., R. Co 343 V. West. U. Tel. Co 313, 542 Walser v. West. U. Tel. Co 541 Wane v. West. U. Tel. Co 30 W^ann v. West. U. Tel. Co 356 Ward V. Atlantic, etc., Tel. Co 175, 176, 178, 186 V. Hohn 650 V. Ward 577 Warmell v. Maine, etc., R. Co 193 Warner v. Railroad Co 192 Warren v. First Div. St. Paul, etc., R. Co 125 Washington, etc., Tel. Co. v. Hobson 30, 306, 473, 528 Waterloo v. Union Mill Co 75 Watermann v. Banks 695 Waters v. Greenleaf — Johnson Lumber Co 585 Watkins v. St. Louis, etc., R. Co .* 436 Watson V. Baker 672 V. Montreal Tel. Co 453 watts V. Southern Bell Tel., etc., Co 175 V. Weston 593 Weatherford, etc., R. Co. v. Seals 433, 439 Weaver v. Burr , 694 V. Grand Rapids, etc., R. Co 606, 607 Webb V. Dunapolis 75 Webbe v. West. U. Tel. Co 395, 400, 402, 457, 484 Wehner v. Loyerfelt 175 Weiden v. Brush Electric Light Co 193 Weir V. Hoss 418 V. St. Paul, etc., R. Co 125 Welsh V. Wadsworth 618 Wells V. Milwaukee, etc., R. Co 687 Wertz V. West. U. Tel. Co 363, 369 West V. West. XJ. Tel. Co 453, 455, 567, 569, 573, 587 West Orange v. Field 92 West R. B. Co. V. Dix 166 Western, etc., R. Co. v. Exposition C. Mills 361 V. Harwell 442 TABLE OF CASES CITED. 763 [Refcreuces are to page nutuberB.] Western U. Tel. Co. v. Adair 308, 551 V. Adams 271, 272, 282, 354, 355, 362, 455, 456, 462 476, 493, 516, 517, 563, 607, 609 V. Allen 21, 453, 456, 461, 463, 493, 600, 609 V. American U. Tel. Co 68, 69, 136, 140, 144, 164 V. Andrews 560 V. Ann Arbor R. Co 68, 70, 133, 135 V. Arwine ^^^ V. Atlantic, .etc., T. Co 61, 63, 69, 140, 164 V. Attorney General 62, 63, 627, 628, 640 V. Ayers ^"^ V. Axtell 476, 597, 607, 614 V. Bailey 544, 545, 663 V. Baltimore, etc., R. Co 53 V. Baltimore, etc., Tel. Co 69, 164 V. Bass 55^ V. Bates 6^3, 654 y Beals 271, 308, 353, 363, 464, 544, 698 V. Bell 531, 556 V. Bennett ^l^- ^80 - V. Beringer 453,461,55 V. Bordine 591 306 - V. Birdue »• - V. Bierhaus 281, 387 - V. Birge-Forbes Co 260, 267, 387 - V. Blake ^"^^^ - V. Blanchard....21, 39, 32, 251, 252, 262, 268, 306, 354, 357, 362, 363, 369, 381, 388, 506, 510 - V. Blause 653,654 - V. Boessche - V. Bonichell 299 -V. Boots 266. 299,300 - V. Bowen ^^"^ - V. Brightwell ^^" -V.Briscoe 305,567 - V. Broesche..227, 265, 273. 332. 335, 355. 448, 515, 516, 592 - V Brown. .372, 446, 463. 479. 522. 526. 550. 577. 586, 606, 618 -v.Bruner 274, 335,386 -v.Brvant 506,567 764 TABLE OF CASES CITED. [References are to page numbers.] V. Bryson 306, 333, 334 V. Buchanan.. 26, 32, 39, 292, 320, 355, 356, 360, 362, 608, 617 V. Billiard 194 V. Burlington, etc., R. Co 69 V. Burns 527 V. Burrow 363, 519 V. Cain 288, 306, 307, 567, 592 V. Call Pub. Co 226, 229, 230, 231, 233, 234, 644 V. Carew 30, 40, 356, 393, 431,432 V. Carter 434, 512, 516, 518, 550, 560, 562, 600, 601 V. Carver 526 V. Cavin 336 V. Chamblee 289, 305, 307, 362, 464 V. Champion E. L. Co 201 V. Chicago, etc., R. Co 69, 167 V. Church 490, 491, 513, 590 V. Circle 265, 266, 298, 301 V. Clark 39, 266, 614 V. Clifton 539 V. Clime 567, 654 V. Cobbs 277, 355, 371, 374, 609, 616 V. Coffin 455, 517, 565 V. Coggin 506 V.Cohen 267,387 V.Collins 317,483,522,533,656 V. Commonwealth 63, 637 V.Cook 249,540 V. Cooper.. 22, 254, 266, 268, 271, 290, 291, 299, 318, 383, 389, 462, 482, 483, 484, 550, 557, 560, 574, 590, 649, 657 V. Cornwell 503, 543 V. Crall 299, 300, 359, 478, 480, 498,502 V. Crawford 305, 362, 383, 532 V. Crider 333, 334, 551 V. Crocker 592, 551, 564, 565 V.Cross 285,584 V. Crumpton 551 V. Cunningham. .264, 265, 330, 372, 380, 398, 551, 587. 588, 592 V. Davis 274, 287, 288, 306 TABLE OF CASES CITED. 765 [Eeferences ure to page numbers.] v.DeJarles 274.283 591 372 V. Douchell ^^^ — V. Dougherty 260 — V. Downs -v.Dozier 261, 324,605 — V. Drake 285 — V Dubois.. 41. 264, 268, 271, 399, 453. 456, 478, 493, 495. 529, 532, 698 -v.Dunfield 371,372 — V. Eakridge ^^^ -v. Edmondson 490,557,558 _ ^r Edsall 30, 271, 304, 393, 407, 465, 514, 697 278 — V. Elliott "'° — V. Erwin ^'^^ -v. Evans 518.591.592 _ V. Eubanks 40, 353, 362, 375, 376. 388. 523 -v.Eyser 1^^' ^^'' ^^^ _v. Fatman 289,506,540,653,654 „ ,^, 461, 516 — V. Feagles — V. Fellner ^26 — V. Fenton 354, 362, 369, 399, 456, 457, 459, 460, 463, 493, 495, 536 — V. Ferguson 42. 264, 325, 415, 476, 567, 602, 606, 607, 609. 617 ^. . ' ' 551, 592 — V. Fisher _v Flint River Lumber Co 271. 464. 532.698 -V.Fontaine 26,32.252.357.479 ^ , 304. 324 — V. Foster . 78. 632 — V. Freemont _v Frith 316, 552. 587,592 518 V. Garrett V Georgia Cotton Co 331,335 331. 333. 335 V. Gibson 544 V. Gidcumb ^ ,, 299, 354. 359. 479 V. Goodbar 271, 272. 289. 290, 608 V. Gougar ^' ' — V Graham 297. 354, 355, 362. 369. 387, 494, 498. 502. 525. 526 ^ .^ 423, 477, 593 - — V. Griffin 518 V. Grigsley 766 TABLE OF CASES CITED. [References are to page numbers.] V. Griswold 30, 298, 299, 321, 355, 369, 506 V. Guest 592 V. Hale 566 V. Hall 414, 498, 501, 506, 524 V. Haltom 567 V. Hamilton 419 V. Harding 267, 331, 332, 334, 421, 612 V. Hargrove 288 V. Harper 299, 309, 414 V. Harris 362, 369, 385, 494, 510, 525 ■ V. Hart 305 V. Hayes 382, 408 V. Hearue ....36,542 V. Henderson... 237, 265, 272, 274, 284, 285, 313, 317, 328, 371, 383, 393, 407, 476, 482, 551, 553, 562, 649 V. Hendricks 281, 560 V. Henley 490 V. Hill 306, 336, 415, 592 V. Hinkle 398,405 . V. Hines 299, 536, 543, 593, 655 V. Hobson 297 V.Hoffman 306,462 V. Hopkins 463, 654, 655 ■ V. Houghton 278, 484, 591 • V. Housewright 305, 559 •V.Howell 203,359,360,601,626 ■ V. Hudson 227 - V. Huff 610 ■ V. Hurley 304 - V. Hyde Bros 274' ■ V. Hyer 30, 268, 388, 515 - V. Irnman, etc., Co 181 - V. Jackson 278 - V. James 209, 374, 397, 522, 593, 601, 602, 616 - V. Jeans 306 . V. Jobe 265, 376, 514,550 - V. Johnson 307, 386, 551, 592 - V. Jones ..260, 262, 265, 318, 320, 371, 372, 373, 374, 453, 455, 599, 605, 606, 615 TABLE OF CASES CITED. 767 [References are to page numbers.] V. Kansas P. R. Co 52 V Karr 383, 506, 515, 587, 588, 592 V. Kemp 37, 376, 503, 526 V. Kendzora 543 if) V. Kenny '* '" V. Kilpatrick 4'^'^' ^'J'^ V.Kinney 466,476,607 V. Kingsley 550, 592 V. Landis 370, 526 V. Lavender 307 V. Lawson 584, 587, 589, 594 V. Levi 174, 188 V. Lewelling ^^^ V. Lovett 558 V. Liddell 262, 303, 605 v. Lieb 621 v. Lindley 271,290,291,522,609,613 V. Linn 40, 513, 550, 560 V. Linney 533 V. Littlejohn 414, 530, 531 • V. Lively 503 ■ V. Longwill 375, 453, 456, 497, 539 • V. Lovely 440 - V. Lowry 363, 369, 426 - v. Luck 333,517,519,558 - V. Lycan 400, 457 - V. Lydon 306, 315, 316, 482, 562 - V. Mansford 22 - V. Martin 506 - V. Massachusetts 207, 620, 621, 627,628 - V. Matthews 285, 287, 305, 307, 551 . V. May 515, 550, 560 - V. McCall 589 - V. McConnico 283. 334 - V. Mccormick 610,542.507 - V. McCoy 386 - V. McDaniel 292,303,614 - V. McGuire 329 768 TABLE OF CASES CITED. [References are to page uumbers.] V. Mcllvoy 299, 433, 551, 566, 592 V. McKibben 291, 371, 374, 376, 399, 463, 536 V. McKinney 382 V. McLaurin 539, 607, 610 V. McLeod 565 V. McMillan 320, 518 V. McNair 485,551 V. Meek 26, 299, 301, 354, 362, 369, 463, 476, 479, 608 V. Mellon 70, 306, 383, 552, 600, 602 V. Meredith 354, 371, 374, 476, 598 V. Merrill 336 V. Meyer 426 V. Michelson 600 V. Mississippi R. Co 204 V. Mitchell 274, 275, 483 V. Moore 272, 273, 282, 285, 288, 289, 329, 484, 516 V. Morris 313, 587 V. Moseley 274,275 ■ V. Moss 617 • V. Mossier 476,617 •V.Motley 518,560 ■ V. Munford 439, 440, 493 • V. Murray 380, 381, 490, 515 - V. Nagle , 363,515 ■ V. Nations 516, 519, 550 - V. Neel 282, 284, 297, 319, 331, 334,550 - V. Neill 30, 308, 309, 355, 357, 359, 385, 398, 480 - V. Newhouse 567, 592 - V. New York 61, 206 - V. Norris 300, 363, 593 - V. North Packing, etc., Co 305 - V. Norton 505, 543 - V. Nye, etc.. Grain Co. 522 - V. Oden 299,566 - V. O'Keefe 286, 550, 592 - V. Pallotta 606 - V. Parks 558 - V. Parlin, etc., Co 503 TABLE OF CASES CITED. 769 [Kfferences are to piige numbers.] V. Parsons 303, 560 V. Partlow f>56 V. Patrick 303,613 V. Patton 3^3, 593 V. Pearce 275, 279, 281, 288, 334, 503, 504, 515 V. Pells 372 V. Pendleton ..17, 28, 203, 207, 209, 210, 218, 419, 463, 596, 598, 599, 601, 603, 609 V. Pennsylvania ^36 V. Pennsylvania R. Co ''0. "^4, 146 V. Perry 336 V. Philadelphia 77,207,220,222,632 V. Phillips 401, 407,439 .v.Piner 383. 591 • V. Poe ^22 - V. Porter 565, 592 -v. Powell 407,615 - V. Power ^^"^ - V. Proctor 408, 543, 566 - V. Pruett 390 -v.Ragland 300, 363, 506 - V. Railroad Com. 211 -V.Rains 371, 372,380 Randall 565 — V. Randies ^^^ — v. Ratterman ^36 -v.Rawls 302, 333.336 — V. Redinger 282,285 -v. Reed 305,600 _v.Reid 528 _v. Reeves 300 — V. Reynolds 29, 31, 258, 278, 321, 371, 388, 418, 456, 506 — V. Rice 593 — V.Rich 137, 138,139 V. Richman 468. 532 — V.Richmond 138.369,418 — V. Roberts 476,597 _v. Robinson 288,537,552,592 T. & T.— 49. 770 TABLE OF CASES CITED. [References are to page numbers.] V.Rogers 548, 549, 568, 569,584 V. Rosentreter 336, 516, 550, 591, 592 V. Roiindtree 267,270,271 V. Russell ' 262, 289, 290, 518, 592 V. Ryels 617 V. Scircle 299, 375, 606, 607, 610 V. Seals 387,433 V. Seay 636 V. Seed 587 . V. Seffel 266,551 V. Sheffield 511, 544 V. Short 39, 40, 299, 354, 362, 369, 478, 504 V. Shotter ,....494, 688, 697,700 V.Shumate 408, 433, 542, 522,557 V. Simms 432, 433 V. Simpson 310, 360, 550 V. Sklar 552, 567 V.Smith 299, 441, 498, 505, 515, 517, 551,559 V. Sneed 592 V. Snodgrass 330 V. Sorsby 306, 433 V. State 1''6, 182, 184, 628, 640 V. State Board 637 V. Steele 606 V. Sternbergen 333, 551 V. Stevens 528, 530, 533, 557 V. Stevenson .... 271, 318, 338, 356, 395, 405, 406, 410, 650 V. Stiles 387, 563 V. St. Joseph, etc., R. Co 52 V. Stone 560 V. Stratemeier 378, 441, 592 V. Swain 606 V. Swearinger 287 V. Sweetman 288, 550, 563 V. Taggart 627 V. Taylor 617 V. Teague 288 TABLE CF CASES CITED. 771 [Referenopp 0. INDUCTION— liability of electric, railway for interference with telephone company by, 208. INDUCTIVE ELECTRICITY— considered and explained, 205. liability of electric, railway company for "conduction" and "in- duction" considered, 208. INJUNCTION— when owner estopped to enjoin company after wrongful entry, 53. federal court cannot use, so as to effect an equitable con- demnation of an easement for right of way, 70. enjoining company from use of streets, upon termination of franchise, 90. enjoining company from erecting poles in street, without con- sent of owner, 113. lies for building lines on streets without authority, 121. by land owner against construction or maintenance of line 123, 124. interference by one company with another constructing line in streets, 179. enjoining interference with vested rights of company in streets, 183. restraining interference with or obstructions of electric cur- rent, 206. between companies, prior right of occupancy, 209. between telephone and other companies for injuries caused by "conduction" or "leakage," 210. when proper remedy, to prevent deprivation of patented facil- ities, 256. to preserve secrecy of message, 305. remedy against company by, 496. INDEX. 801 [ Rff ereuces are to sectloiiB. ) INSTRUCTIONS— to jury in actions, 512. INSTRUMENTS— companies must have suitable, 237. duty of teleplione company to fuinisli, 24G, 248. See Facilities. INSURGENTS— as public enemies, 359. INTERFERENCE— with company by other electrical appliances, 202. of currents of electricity, 204. injunction to restrain, obstructions to electric current, 206. INTERSTATE COMMERCE— regulating charges within a state, 19. lines over post roads, public lands, etc., 57-60. company as instrument of, 211. the power to regulate, 212. police power of Congress over, 216. state cannot fix rates on, 228. company engaged in cannot be required to pay license tax as a condition to do business, 233. liability of company for, 432. statute imposing penalty on company has no extra-territorial effect, 622. validity of statute imposing penalty, 623, C24. obstruction of, by taxation, 653. property of company used in, subject to state tax, 654. taxation on gross receipts of company, 661. taxation on messages of company generally, 662. message of telephone company as, 668. INTEREST— when payment of taxes is delayed, 667. INTERPRETER— telephone operator as, 700. ISSUE— in actions, 508. JUDICIAL NOTICE— courts will take, of duty of company with respect to construc- tion and maintenance of lines, 194. T. & T.— 51. 802 INDEX. [References are to sections.] JURY— questions for, 511. instructions to, 512, withdrawal of case from jury, 513. amount of damages a question for, 537. allowance of exemplary damages by, 603. See Damages; Negligence; Law and Fact. LABOR— lien for, on property of telegraph company, 20. LAND OWNER— rights of, after condemnation proceedings, 140. additional compensation, for line over railroad right of way 145, 146. See Eminent Domain. LAW AND FACT— questions for jury, 511. question of exemplary damages, 603. See Jury. LEASE— of franchise of company, 47. company cannot lease its franchise, 48. implied from statutory authority to alienate franchise, 49. of patented device to telephone company, 253. See Franchise. LEGISLATURE— power over public highways, 79. may delegate authority, 79. legislative grant may be unconditional, 82. discretion of, in classifying property of company for taxa- tion, 649. See State; Statute. LETTER— and telegram, compared, 671. contract when communicated by post and telegram, 730. LIABILITY— statute liability of company, 34. of companies for injuries caused by improper location, c struction and maintenance of lines, 184-210. on- INDEX. 803 [References are to sections.] LIABILITY— Continued. of company furnishing "tickers," 747, 748, 751. liability of company in transmission and delivery of messages, 257-308. of company for negligence, 309-332. as affected by rules and regulations, 333-353. limiting common law liability, 366-424. on contracts to furnish market reports and other news, 425-46C. See Message; Negligence. LIBEL AND SLANDER— message containing need not be accepted, 431. damages in action, 594. liability of company for, 606. exemplary damages in action for, 606. LICENSE— and franchise distinguished, 44. to companies by cities, 93. parol, to enter land, 129. LICENSE TAX— by city on lines, 61. imposed by city, 81. rental required by city not a, 87. imposed by city on line constructed in streets, 180. as rental charge, 233. company engaged in interstate commerce cannot be forced to pay license tax as a condition to do business, 233. within police power, 233. on business of company as interstate commerce, invalid, 558. distinction between property tax and privilege tax, 659. of city, on telegraph company, 664. LIEN— superior to mortgage lien on telegraph company, 20. for taxes on property of company, 652. for material, on property of telegraph company, 20. LIGHT— obstruction, of, by telegraph wires, etc., 16. LIGHT COMPANIES— business of considered, 202. LIMITATION— for presenting claims against company, 385-390. when limitation of time begins to run, 390, 391. 804 INDEX. [References are to sections.] LIMITATION— Continued. compliance with stipulation, 392. actions for mental anguish do not survive, 592. LIVESTOCK— delay in message for contemplated shipment of live stock, damages. 556. LOCATION— company must exercise reasonable care in location of line on highways and streets, 185. LOSS— remote and speculative, 549. See Damages. M MALICE— defined, 602. exemplary damage for malicious acts, 601. MALICIOUS ACTS— exemplary damages for, 600-608. MALICIOUS PROSECUTION— exemplary damages for, 607. MANDAMUS. to furnish service, 229. to compel transmission of message, 245. to compel telephone company to comply with lawful rates, 247. enforcing duties of telephone company by, 254. proper parties in proceeding against telephone company, 255. action against company by, 495. MARKET REPORTS— contract to furnish, 426. duty and liability of company in furnishing quotations 746-751. MASTER AND SERVANT— liability of company for injuries sustained by servant, 198. rule under statutes, 199. company must furnish suitable appliances, 200. See Employe; Negligence. MATERIAL— lien for, on property of telegraph company, 20. INDEX. 805 I References are to sections.] MENTAL ANGUISH— damages for, 539-543, 570. action in contract or tort, 571. ruling in So Relle case, 572. 573. rule in federal courts, 574. grounds upon which damages allowed, 575. damages allowed for in Louisiana, 576. instances in which damages for are allowed, 577. limitation of rule allowing damages for, 578. suffering must be real, 579. must be the result of the cause of complaint, 580. suffering must be that of the injured party, 581. anguish from independent causes, 582. no recovery of damages when prompt delivery of message could not have prevented injury, 583. postponement of funeral services, 584. no recovery for, for failure to transmit money, 585. evidence of mental suffering, 586, 587. sickness as result of, 588. evidence in defense to claim for, 589. materiality of relationship, 590. nature of damages for, 591. actions for, do not survive, 592. no damages for mental suffering not accompanied by pecun- iary loss or physical injury, 593, 595. when damages for mental suffering unaccompanied by pecun- iary loss or physical injury may be basis for action, 594. in case of malicious or willful wrong, 594. reasons for not allowing damages for, 595. mental suffering following physical pain, 597. conflict of law with reference to damages for, 598. statute rule of damages for, 599. excessive damages allowed for, 613, 614. MESSAGE— company must comply with statute concerning, 33. substantial compliance with form of, 35. company not required to send until paid or offered to be paid, 39. must be presented within office or legal hours, 39. certain need not be transmitted, 39. subject matter of, criminality, 39, to be forwarded in order of time of receipt, 40. precedence of governmental messages over private. 40. not a privileged communication, 41. company not disclose or use contents of message, 41. preference of certain, 41. 806 INDEX. [References are to sections.] MESSAGE — Continued. laws regulating delivery of, 212. penalty for failure to deliver, 217-219. power of state to fix rates, 223-228. state cannot fix rates on interstate business, 228. must be transmitted in order of reception, 238. preferences of certain messages, 238. illegal discrimination in rates, 241. reasonableness of rates for, how determined, 242. telephone companies must not discriminate in charges, 243. telephone companies must transmit in order of reception, 243. telephone company receiving and delivering message to tel- egraph company, 249. telegraph company liable for negligence in transmission and delivery of, 257. liability of, telegraph company discussed, 258. company not liable as ordinary bailee for hire, 259. company cannot contract away its liability for negligence in the transmission and delivery of, 259. distinctions between telegraph and telephone company in trans- mission and delivery of, discussed, 260. telephone company need not deliver beyond its line, 261. when telephone company liable for failure to deliver beyond its line, 261. telephone company must make reasonable search for party called, 262. when telephone company collects extra charge for delivery, it is liable same as telegraph company for failure to de- liver, 263. long distance company liable for negligence in failing to se- cure connection, 264. duties of telegraph company to transmit and deliver do not arise altogether from contract, 265. telegraph company is under legal duty to accept, transmit and deliver, without error or delay, all proper messages, after compensation received, 266, 267. telegraph company need not receive immoral message, or mes- sage that would subject it to prosecution, 267. nor message that would subject company to action of tort, 268. company may decline to receive, when lines are down, 269. message must be properly tendered, 270. message must be in writing, 270. message must be on company's blank, 271. delivery of message to messenger boy, 272. necessity of prepayment of charges, 273. INDEX. 807 [References are to sections.] MESSAGE— Continued. liability for damages for failure to receive messages properly tendered, 274. must be transmitted without unnecessary delay, 275. burden of proof In action for injury caused by delay in trans- mission of message, 276. duty of company to inform sender when delay unavoidable, 277, company must exercise due care to transmit message without error, 278. degree of care in transmission, 279. liability under statutes for all mistakes, 280, 281. duty of company to deliver messages, 282. excuse for non-delivery, 283. insufficient excuses, 284. duty to inform sender of non-delivery, 285. to be delivered to addressee, 286. delivery of message to wife, 287. delivery to hotel clerk, 288. where two parties have same name, delivering to one, 289. delivery of messages in care of another, 290. delivery of message over telephone, 290, 292. delivery to authorized agent, 291. written copy should be delivered, 292. no duty to forward messages, 293. time of delivery, 294. two messages of same nature received within office hours, delivery, 295. free delivery limit, 296. when addressee lives several miles from office, 297. waiver by company of extra compensation for delivery beyond free limit, 298. when no delivery limit is fixed, 299. company must use due diligence to deliver, 300, 301. at place of business, and of residence, 301. diligence in delivering as a question of law or fact, 302. failure to designate with accuracy the address, 303. penalty imposed for failure to deliver, 304. duty to preserve secrecy of, 305. duty to preserve secrecy imposed by statute, 306. duty as to secrecy applicable to telephone company, 307. sent in care of common carrier, 308. unreasonable delay in delivery of, 311. presumption of negligence of company, 311. non-payment of charges for, when no defense to action for neg- ligence, 313. 808 INDEX. [References are to sections.] MESSAGE — Continued. delivery of, beyond free delivery limits, 313. contributory negligence of plaintiff as a defense in actions for negligence in transmission or delivery of, 314, 326. must be written legibly, 315. 338. address of message must be definite, 316. error in address, 316. operator writing for sender as senders' agent, 317. duty to affix stamp to, 318. refusal to transmit when not stamped, 318. delay in delivering to company as contributory negligence, 319. injured party should minimize loss, 320. company presumed to perform its contract, 321. duty of sender of message to inquire into mistake, 321. duty of sender to resort to other means when he ascertains neglect of company to transmit, 322. addressee misinterpreting, 323. acting on ambiguous message, 323. duty of addressee to read carefully, 324. delay in delivery of, as negligence, 325. contributory negligence of injured party, 326. evidence of embarrassed condition of injured party, delay of message, 328. evidence of plaintiff's good faith in case of erroneous, 331. right of company to make reasonable rules and regulations as to, 333. rule requiring prepayment of charges for answer to message, 335. rule requiring message to be written, 338. rule providing that message shall not contain indecent or im- moral language, 338. requirement of signature to, 338. company cannot demand that it be informed of the nature and purport of, 339. requiring delivery at ofSce of company, 340. delivery of, to messenger of company, 340. prepayment of charges on, 341. extra charges for delivery beyond free delivery limit, 342. deposit of charge for answer to message, 343. must be delivered during office hours, 346. delivery of, after office hours, 348. office hours as affecting duty of company. 350. delivery of night message, 350. knowledge of sender as to office hours, 351. INDEX. 809 [References are to sections.] MESSAGE— Continued. liability of company for acts of God, mobs, strikes, etc., 355- 362. liability of company over connecting lines, 36^. company receiving after office hours or contrar. to tluir rules and regulations, 353. stipulations in contract of sending, 366. contracts against negligence, 367. statute imposing penalties on company for negligently tians- mitting or delivering, 368. ignorance of operators of the locality of the place to which message is sent, 373. conflict of law, in cases involving contracts exempting com- pany from common-law liability, 374. stipulation for repeating messages, 375, 376. extra charge for repeating message considered, 378. delay in delivering, or non-delivery considered, where message is repeated, 379. paper on which written, as a contract, 380. distinguished from bill of lading or freight receipt, 381. stipulation for repeating message binding on sender only, 384. request for repeating, what is, 383. stipulation as to time of presenting claim against company, validity of, 385-o90. delay in receiving message does not modify stipulation, 391. when limitation of time begins to run, 390, 391. compliance with stipulation as to presentment of claims, 393. when such stipulation not binding, 392. form and requisites of claim, 395. claim must be presented to proper officer, 396. presentment and notice of claim against company, 396-398. limiting liability to specific amount, 399, 401. time of delivery of night messages, 402. special contract against unavoidable interruption, 403. stipulation as to transmission over connecting lines, 404. stipulations as to cipher messages, 405, 406. ■where and when message accepted, 407. delivery of, to messenger, 408. waiver of stipulation limiting liability of company, 409. burden of proof when company relies upon stipulation in con- tract, 410. proof of assent to stipulations in company blank, 411, 412. special contracts for sending, 413. blanks printed in small type, 414. assent of addressee to stipulations, 415-419. 810 INDEX.. IReferences are to sections:.] MESSAGE— Continued. stipulations posted in office of company not binding, 420. written on blank of another company, 421, 422. delivery to company by telephone or verbally, 423. knowledge of agent of company concerning, 424. contract insuring safe transmission, 425. contract to insure correctness of intelligence, 425. contract to furnish market reports, etc., 426. contracts to furnish news, 426, 427. in regard to gambling transactions, 428. damages for errors in messages relating to "futures," etc., 428. company need not accept, containing indecent language, 429. nor message that would subject company to action, 430. nor message that is libelous, 431. liability for interstate messages recovery of statutory pen- alty, 433. company need not send on Sunday, 134. Sunday contracts void, 435. • matters of necessity and charity, 436, 437. forged and fraudulent messages, 440, 441. when operator author of fraudulent or forged message, 442. liability of company for forgery of sub-agent, 443, 444. amount of damages, in transmission of fraudulent or forged messages, 445. general rule as to messages over connecting lines, 446. English rule in such cases, 447. acceptance of all charges does not change rule, 448. diligence of company to deliver to connecting line, 449. rule applies to telephone company, 450. contract to transmit over connecting line, 452. statute making initial company liable over connecting line, 453. actions on extra-terminal contracts, 454. duty of connecting line to accept, 456, 457, liability of connecting line, 458. eifect of contract of sending on connecting lines, 461. senders right to select route, 463. result of bad selection, 464. extra fee or charges over connecting line selected by sender, 465. action for damages resulting from negligent delays in trans- mission of messages, 467-491. who may sue when message sent by agent, principal not disclosed, 469. right of addressee to sue for negligently transmitting or de- livering message, 470, 476. INDEX. 811 [Kefcrences are to sections.] MESSAGE— Continued. right of third party to sue on contract made for his ben'^'flt, 471-474. action under statute, resulting from negligent delays in trans- mission or delivery of messages, 482. right of action on altered message, 483. addressee's right of action, when messages not repeated, 487. action between sender and addressee, 488-490. distinction between altered, and one not sent or delivered as to action, 494. measure of damages in actions against company, 516-54'3. measure of damages in case of cipher or unintelligible message, 531, 532. effect of information on face of message, as to damages, 534- 536. copy of, in pleading, 501. measure of damages in actions for negligence concerning, 516- 543. See Damages. concerning sale of property, duty of company, 545. exemplary damages, when messenger intentionally fails to de- liver, 609. tax assessed on messages in general, 662. defined, 670. letter and message compared, 671. as declarations of sender, 676. as evidence of communication, 677. as documentary evidence, 678, 680. rules of evidence as to, 671-701. statute of frauds as applicable to, 705-710. telegram, as privileged communication, 711-722. postal law not applicable to telegraph messages, 713-714. statutes forbidding disclosure of telegram, 715. contracts by telegram, 723-744. telegraph company may refuse improper message, 267. See Negligence. MESSENGER— delivery of message to, 272, 408. duty of company to keep at station, 282. exemplary damages, when messenger intentionally fails to de- liver, 609. MILITARY ROADS— telegraph lines along, 57-60. right of way over. 142. 812 INDEX. IReferences are to sections.] MISTAKES— liability for in messages, 278-281. MOBS— liability for injuries caused by, 360. • MENTAL SUFFERING— See Mental Anguish. MONEY— no recovery for mental anguish, for failure to transmit, 585. failure to transmit, 567. MEASURE OF DAMAGES— See Damages. MONOPOLY— illegal preference in rates, 241. See Discrimination; Equal facilities. MORTGAGE— of franchise of company, 46, 47. authority to sell, gives right to mortgage, 49. MUNICIPAL CORPORATIONS— powers of, over streets, etc., 80. terms and conditions imposed on company, 81. may impose conditions on right of way, 82. when legislative grant unconditional, 82. lines on streets — consent. of city necessary, 83. termination of franchise, 90. powers to regulate construction of line in streets, 180. power of, to regulate companies and their lines, 230, 231. power of city to revoke franchise, 232. when city may abate line as a nuisance, 232. power to impose license tax, 233. taxation by, compensation for use of streets, 663. petition of company for easement in street, 84. right to construct lines on streets, 91. powers of municipalities considered, 91. control of the state over lines, 91. power of city to pass ordinances, 91. may license company to build lines in streets, 83, 93. may control erection, construction and maintenance of lines, 94. lines erected without authority, as a nuisance, 95. right of abutting owner to compensation discussed, 96. erection of lines as a public use, 96, 97. INDEX. 813 [References are to sections.] MUNICIPAL CORPORATION— Continued. taking of property for public use discussed, 97-106. dedication of land for streets, extent of, 99. power over dedicated streets, 100. difference between streets and ordinary highway, 100. cases with reference to the right of an adjoining owner to compensation, for lines in city streets, referred to, 101. rights of abutting owner in city streets discussed, 110. trees on sidewalks, 128. liability of company for cutting trees on city streets, 125-128. cannot grant exclusive right to company over railroad right of way, 179. reservations in ordinances granting franchises, 180. ordinance granting right in streets, as a vested right. 180. construction of lines crossing streets, 189. construction and maintenance of poles, 190. extension of lines on streets, 183. liability for the improper construction of poles in streets, 190. cannot regulate rates without express authority, 234. cannot annul or alter franchise granted, 222. N. NAME— delivery of message where two parties have same, 288. proof of signature to message, 675. NAVIGATION— obstruction to by lines. 191. NEGLIGENCE— liabilities of telephone and telegraph companies distinguished, 3, 4. liability of companies for, 18. co?ripanies liable for, 24. companies liable for failure to exercise due care in transmit- ting messages, 24. failure to transmit message correctly, prima facie negligence, 36. burden a company to absolve itself from negligence, 36. company cannot by contract exempt itself from negligence, 37. injuries from abandoned wires, 186. strength and stability of poles, 187. failure to restore line after storm, 188. liability for injuries from broken and hanging wires, 188. 814 INDEX. [References are to sections.] NEGLIGENCE— Continued. construction of lines crossing highways, railroads and streets, 189. liability for falling poles and other fixtures, 190. obstructing navigation by cable, 191. as the basis of action for injuries, 192. what constitutes, definition of term, 193. duties of company, generally, 193. failure to perform duty must be shown, 194. as question of law or fact, 194. no liability unless injury sustainea, 195. proximate cause of injury, 195. evidence of, 196. burden of proof, 196, 276, 310. sufficiency of evidence, 196. contributory negligence as a defense, 197. liability of company for injuries sustained by servant, 198. rule under statutes, 199. company must furnish suitable appliances to employee, 200. interference with or obstruction of electric current by other company, 206-210. laws imposing penalties from negligence, 211. limiting liability of company for, 221. liability for, in transmission and delivery of messages, 257. telegraph company cannot contract away its liability for neg- ligence in the transmission and delivery of messages, 259. distinction between telegraph and telephone company as to lia- bility for in transmission and delivery of messages, dis- cussed, 260. long distance telephone company liable for damages in failing to secure connection, 264. of company, in failing or incorrectly entering station in guide book, 269. where message not on blank of company, 271. in transmission of message, 275. burden of proof, in action for injuries caused by delay in trans- mission of message, 276. in delivery of messages promptly, 294. general duties of companies, 309. presumption of negligence, 310. rebutting presumption of, 312. delay in delivery of message, 313. contributory negligence as a defense, 314. of sender in writing message, 315. INDEX. 815 [Keferenccs are to sections. J NEGLIGENCE— Continued. of sender failing to send without delay, 319. duty of sender to minimize loss in case of negligence, 320. company presumed to perform its contract in transmission and delivery of message, 321. duty of sender of message to Inquire into mistake, 321. contributory negligence of addressee, 323, 325. misinterpreting message, 323. duty of sendee to read message carefully, 324. of company must be proximate cause of injury, 325. delay in delivering of message as, 325. contributory negligence of injured party, 326. evidence touching on the wealth or poverty of either party, 327. evidence touching embarrassed condition of Injured party, 328. declarations of agent, 329. evidence of subsequent acts of company, 330. company cannot make and enforce rules, relieving it from lia- bility for, 333. contract to be liable for act of God, 355, 356. burden of proof, defense act of God, 357. not liable for injuries caused by public enemy, 358, 359. liability for injuries caused by mobs, strikes, etc., 360, 361, 362. liability of company over connecting lines, 363. telegraph company exonerated by negligence of sender or sen- dee, S64. burden of proof, defense that loss was caused by mob or strike, 365. telegraph companies cannot exempt themselves by contract from, 367. rule applicable to statutory penalties, 368. statute imposing penalties on company for negligently trans- mitting or delivering message, 368. company may contract against in some states, 369. prohibited against contracting against in some states, 370. what constitutes gross negligence, 371, 372. ignorance of operator of the locality of the place to which mes- sage is sent, 373. conflict of law in cases involving contracts exempting com- pany from common-law liability, 374. stipulation for repeating messages, 375, 376. delay in delivery or non-delivery considered where message is repeated, 379. time in which claim is to be presented, 385, 386. 816 INDEX. [References are to sections.] NEGLIGENCE — Continued. provisions of statutes, considered, 387. such stipulations held void as against public policy, 389. compliance with stipulation as to time of presenting clai'Qs, 393. waiver of written claim, 394. presentment and notice of claim for, 396, 398. limiting liability to specific amount, 399. liability of company in transmitting fraudulent or forged mes- sage, 441. contract to become liable for, over connecting line, 451. general rule as to messages over connecting line, 446. burden of proof in action against connecting line, 459. liability for defaults of common agent, 462. liability of companies as between themselves, 466. action for damages resulting from negligent delays in trans- mission or delivery of messages, 467-491. right of addressee to sue for negligently transmitting or de- livering message, 470, 476, 478. right of third party to sue on contract made for his benefit, 471-475. pleading and practice in actions for, 493-513. presumption of, burden of proof, 507. measure of damages in action for, 516-543. measure of damages in case of sales prevented, 546. loss must be actual and substantial, 547. damages neglect to deliver order for goods, 549. measure of damages, in cases of loss of employment, 557-565. measure of damages, cases of loss of expected profits on sales by error or delay in transmission of message, 544-556. exemplary damages in actions for malicious or willful wrong, 594. to recover, it must be shown, that there has been a loss sus- tained by the company's negligence and that the same could and would have been prevented, 565. exemplary damages in action for, 600-611. exemplary damages, when recoverable, 600-608. exemplary damage not allowed for simple acts of, 609. exemplary damages in case of gross negligence, 610. nominal damages for infringement of legal right, 616. excessive damages considered, 612-615. construction of statutes imposing penalties for, 618, 619. who may maintain action for penalty, 621. contributory negligence as a defense, in action for statutory penalty, 638. See Damages; Exemplary Damages; Message. INDEX. 817 IK.'fci'i'iKTS ai'f to HcrtloiiK. 1 NEWS— contracts to furnish, 425, 42fi. liability for errors in furnishing, 420. companies organized for furnishing, 427. liability for libelous, 606. NEWSPAPER— discrimination in rates of telegrai)li company for service to, 240. NIGHT MESSAGES— time of delivery of, 402. NOTICE— in condemnation proceedings, 137. of claim against company, 397, 398. by telegram, 696. to produce telegram for use as evidence, 688. NUISANCE— erection of telegraph poles, etc., 16. obstruction of streets by lines, 61. lines erected without authority, 95. lines constructed under authority are not a, 118. building of lines on streets when a, 121. remedies of land owner, 121. construction of line without authority as a, 123. trees, a sidewalk, 129. improper location of lines on highways and streets, 185. broken and hanging wires as, 188. state may remove lines as a, when, 215. city may abate lines as a, 232. See Injunction. O. OATH— administered over telephone, 701. OBSTRUCTION— right of telegraph company to remove, on its right of way. 16. obstructing lines of company, 201. of interstate commerce by taxation, 653. OFFICE— of company must be kept open, 220. T. lit T.— 52. 818 INDEX. [Uefprenres nri" ti> sections.] OFFICE HOURS— reasonable, of company, 295. regulation of, 345. waiver of regulation, 348. of other company, 349. as affecting duty of company, 350. knowledge of sender as to, 351. defense that terminal office was closed, in action for statutory penalty, 636. OPTION— delay of message to close, measure of damages, 554. ORDINANCES— of city granting right of way, 81. granting company right in streets as a vested right, 180. regulating construction of lines in streets, 180. reservations in, granting franchise, 181. granting franchise, cannot be annulled or altered, 222. See Municipal Corporations. P. PACIFIC RAILROADS— right of way for telegraphs, 71. telegraph lines over, 213. PARTIES— in mandamus proceedings against telephone company, 255. right of third party to sue on contract made for his benefit, 471, 475. to actions for damages resulting from negligent delays in trans- mission or delivery of messages, 407-491. PARTNERSHIP— arrangements between the several lines, 460. PATENTS— lessee of telephone patent cannot evade duty to public, 252. PAYMENT— necessity of prepayment of charges, 273. PENALTY— for failure to deliver message, 217-219, 304. right of action under special statute, 486. object and purpose of statutory penalty, 617. INDEX. 819 [UeferencfH are to Bpctloiis.] PENALTY— Continued. construction of statutes imposing, 618, 619. is not damages for person injured, 620. who may maintain action for, 621. statute imposing has no extra-territorial effect, 622. constitutionality of statute imposing penalty, 623, 624. Indiana statute considered, 624. message relating to futures, 625. as to cipher message, 626. message not written on blank of company, 627. proof of breach of duty in failing to comply with statutes, 628, 629. pleading in action for, 504, 630, 631. actual damages need not be proven, 632. action for, does not bar action for damages, 633. action for survives, 634. liability of connecting line for, 635. defense to actions for, 636-643. when terminal office is closed, 636. delivery beyond free limits, 637. contributory negligence of injured party, 638. inadvertent or harmless errors, 639. Sunday messages, 640. effect of stipulations as to time for presenting claim, 641. accord and satisfaction, 642. prepayment of charges, 643. effect of repeal of statute, 644. See Message; Negligence; Statute. PETITION— for right of way, 132. for right of way over railroad, 160. PLEADINGS— in action against company, 498. under special statutes, 500. amendment of, 502. in action for statutory penalty, 504, 630, 631. POLES— placing underground, 91. POLES AND WIRES— erected under agreement with land owner, subject to prior mortgage, 129. description of in condemnation proceedings, 136. T. & T.— 53. 820 INDEX. [References are to sections.] POLES AND WIRES— Continued. removal of, by railroad on its rigM of way, 151. construction of over railroad right of way, 170. strength and stability of poles, 187. construction and maintenance of, 190. injuring and destroying, 201. power of city over in city streets, 231. liability for falling, 190. construction of regulated by state, 215. See Construction and Maintenance; Municipal Corporations. POLICE POWER— of states over lines on post roads, etc., 61. lines in streets and highways, 91, 92. of municipality over streets, 81. of municipalities in regulating lines, 182. of state over foreign companies, 212. of state to control and regulate companies, 214. of state cannot be alienated or abridged, 214. of congress over interstate commerce, 216. of cities to regulate companies, 231. licenses that are within, 233. See Municipal Corporations; State. POSTAL LAW— not applicable to telegraph messages, 713, 714, 716, 726. POST ROADS— telegraph lines along, 57-60. include streets in cities, 61. right of way over, 142. PRACTICE— in actions against companies, 492-513. PREFERENCE— telegraph company must not give preferences in rates, 240. in rates, what reasonable discrimination, 241. See Discrimination. PRESUMPTION— of negligence of company on failure to deliver message, 311. in case of error in message, 311. company presumed to perform contract in transmission and de- livery of message, 321. of negligence, 507. See Negligence. INDEX. 821 [References are to Bectlons.] PRINCIPAL— message sent by agent, principal nndisclosed, who may sue, 469. See Agent. PRIVILEGED COMMUNICATION— telegraph messages as, 41, 711-722. when message in hands of company may be, 717 See Evidence. PROCESS— service of against company, 497. PROFITS— loss of, as damages, 526, 527, 544. as damages, when sale prevented, 546. as damages, on order for bonds, stocks, etc., 552. See Damages. PROPERTY— character of poles, wires and lamps, 20. PROXIMATE CAUSE— of injuries, 192. negligence of company must be proximate cause of injury, 195. contributory negligence as, 314. negligence of company must be to hold company liable, 325. evidence, when defense act of God, 357. defense, that loss was caused by mob or strike, 365. between connecting lines, 458. See Negligence. PUBLIC COMPANIES— must serve all alike, 38. See Discrimination. PUBLIC ENEMY— company not liable for injuries caused by, 358. meaning of term, 358. PUBLIC LANDS— telegraph lines over, 57-60. PUBLIC USE— business of companies is a, 15. government regulation of companies, 18. erection of lines as a, 96. taking of property for, 97. laud taken for, may be condemned for another public use, 152. See Eminent Domain. 822 INDEX. [References are to sections.] R. RAILROAD— right to compensation for telegraph line along its right of way, 64, 65. state statutes granting right of way along railroad, 73. lines must not interfere with travel over railroad, 74. must be compensated for use of its road bed, 75. cases relating to compensation for building in city streets re- ferred to, 98-106. construction of lines crossing, 189. telegraph lines over subsidized railroads, 213. right of company under act of Congress over railroad right of way, 142. additional burden to the easement, 143. right to compensation, 143. subsequent purchaser may recover compensation, 144. line constructed by railroad, 145, 146. must be in good faith for use of railroad, 147. renting by railroad to another company, 147. railroad lines when not taxable, 148. compensation to railroad companies, 149. right of way must be by authority, 150. interest acquired by company, 151. removal of poles by railway company, 151. condemnation over railroad right of way, 152. exceptions to rule, 153. railroad cannot defeat condemnation proceedings by claiming it should be on other lands, 154. rights of foreign companies, 155-157. company must act in good faith, 158. what portion of right of way may be taken, 159. petition to condemn right of way over, 160. there must be a necessity for the taking, 161. telegraph company may condemn land in several counties in one proceeding, 162. proceedings where instituted, 163. appointment of commissioners, 165. duties of commissioners, 165. special court for proceedings, 166. award of commissioners, 167. either party have new award, 168. duty company owes to railroad, 170. INDEX. 823 [ReferenceK are to sections.] RAILROAD— Continued. measure of damages, extent of injury, 171-17.3. no exclusive right granted, 174. contract for exclusive right invalid, 175. no exclusive right under state legislation, 176. act of Congress prohibits exclusive right, 177, 178. municipal grants not exclusive, 179. vested right that cannot be impaired, 180. reservations in ordinances, 181. police power of state and municipality, 182. power of railroad, in constructing a telegraph line for its use, 145. See Eminent Domain. RATES— government regulation of, 18, 19. powers to regulate does not confer power to fix rate of charges, 19. state may regulate to points within state, 221. regulation of, by state, 223, 224. fixed by statute cannot be indirectly evaded, 226. statute rates must be reasonable, 227. state cannot fix rate on interestate business, 228. municipality cannot regulate control express authority, 234. telegraph company cannot unjustly discriminate in charges, 239. must be relatively reasonable, 240. reasonable discrimination in, 241. determination of reasonable, 242. telephone company nlust not unlawfully discriminate, 243. free to employe by telephone company, 247. telephone company must have uniform, 247. mandamus to compel telephone company to comply with lawful, 247. discrimination in rates of telephone company, 247. telephone company may refuse to furnish service for failure to pay, 251. necessity of prepayment of charges, 273. See Cliarges. RATIFICATION— of unauthorized transfer of franchise, 49. REGULATION AND CONTROL— of companies by federal and state laws, 211, 212. REMOTENESS— of damages .524, 526, 530, 563. See Damages. 824 INDEX. [References are to sections.] RENTAL— telephone company may enforce payment of, 352. what are reasonable reflations of telephone company con- cerning, 352. for lines on city streets, 86, 87. reasonableness of city charge of, 89. See Charges; Rates. REPEATING MESSAGE— stipulation for, 375, 376. extra charge for, considered, 377. addressee's right of action when message not repeated, 487. See Message. RESERVATIONS — in ordinances granting franchises. 181. See Ordinances; Municipal Corporations. RESOLUTIONS— of company distinguished for rules and regulations, 337. REVOCATION— of franchise, discussed, 55. by city of right of way granted, 82. RIGHT OF WAY— See Eminent Domain. RH'ER— line of wires across, 58, 59. lines not obstruct travel upon, 78. obstruction to navigation by cable, 191. ROADS AND HIGHWAYS— what embraced in term road, 77. powers of state and cities over, 91, 92. difference between, and city street, 100. right of abutting owner discussed, 110. company must exercise reasonable care in the location, con- struction and maintenance of lines on, 185. construction of lines crossing, 189. state may regulate construction of lines on, 215. See Streets. RULES AND REGULATIONS— of business companies by state, 214. by state of companies, 221. INDEX. 825 [References are to Rectlons.] RULES AND REGULATIONS— Continued. concerning telephone instruments by company, 251. right of company to make, 333. with respect to news messages, 427. right of company to make reasonable, 333. must be reasonable, 333. must be reasonably applied, 335. as question of law or fact, 336. distinction between and by-law, 337. distinction between and resolution, 337. requiring message to be written, 338, 339. providing that message shall not contain indecent or immoral language, 338. that message shall be signed, 338. company cannot demand that it be informed of the nature and purport of the message, 339. requiring delivery at office of company, 340. requiring prepayment of charges, 341. extra charges for delivery beyond free delivery limit, 342. deposit of charges, for answer to message, 343. regulation of office hours, 345, 346. reasonableness of office hours, 347. waiver of regulations, 348. telephone companies may make reasonable, 352. reasonable requirement concerning charges and tolls of tele- phone companies, 352. of telephone company may be waived, 353. stipulation for repeating messages, 375, 376. stipulation as to time of presenting claims, 385, 390. stipulation as to liability over connecting lines, 404. stipulation as to cipher messages, 405, 406. stipulation as to where and when message accepted, 407. stipulation as to delivery to messenger, 408. waiver of stipulation limiting liability of company, 409. burden of proof when company, relies upon stipulations in con- tract, 410. proof of assent to stipulation, 411, 412. assent of addressee to stipulations in blank, 415-418. stipulations posted in office not binding, 420. SALE— of franchise of company, 46, 47. 826 INDEX. [References are to sections.] SALES— messages conceruiug, duty of company, 545. measure of damages for negligence of company, message relat- ing to, 545, 546. order for goods not delivered, 548. measure of damages, 549. when order for goods erroneously transmitted, duty of pur- chaser, 550. when goods shipped to wrong place, 551. errors in announcement of prices or state of market, 555. measure of damages, delay in message directing agent to sell or purchase, 553. how affected by statute of frauds, 703-710. contracts for, made by telegram, 723-744. See Contract. SECRECY— of telegraph message, 41. duty to preserve secrecy of message, 305. See Message. SERVICE— when telephone company may refuse to furnish, 250. of process against company, 497. of subpoena, or writ to produce telegram, 721, 722. SIGNATURE— proof of, to message, 675. SPECULATIVE— damages not recoverable, 563. rules as to speculative damages, 524, 526, 530. See Damages. SPECIFIC PERFORMANCE— remedy by, against company, 496. STAMP— duty to affix to message when required by law, 318. STATE— may make grants of right of way, 72. statutes granting rights to companies, 92. supreme control of highways and streets, 93. cannot grant exclusive right over right of way of railroad, 177. regulation of companies by, 211. power of regulation and control, 212. INDEX. 827 [References are to sections.] STATE — Continued. control and regulation of lines, by, 214. may regulate construction of lines, 215. control of domestic commerce, 216. may regulate rates to points within state, 221. limitation on state powers, 222. may prevent (liseiiinination in charges, 339. See Legislature; Police Power. STATUTE— concerning telegraphs, when embracing telephones, 5-14. declaring companies common carriers, considered, 30-33. becomes a part of the contract of companies, 33. granting rights to companies, 92. regulating condemning right of way for additional public use, 152. no exclusive grant of right of way under, 176. imposing liability on company for injuries to employe, 199. imposing duties to furnish equal facilities, 245. making company liable for mistakes, 280, 281. regulating free delivery limit, 296. imposing penalty for failure to deliver message, 304. imposing duty to preserve secrecy of message, 306. regulating office hours, 347. imposing penalties on company for negligence, 368. prohibiting company, from contracting against acts of negli- gence, 370. imposing penalties on companies for failing to perform duties, 387, 388. penalty not applicable to messages, of necessity and charity to be sent on Sunday, 438. making initial company liable over connecting line, 453. right of action under, resulting from negligent delays in trans- mission or delivery of messages, 482. right of action under special, 486. pleading under special, 500. allowing damages for mental anguish, 599. imposing penalty, object and purpose, 617. construction of, imposing penalty, 618, 619. imposing penalty has no extra-territorial effect, 622. constitutionality of statutes imposing penalty, 623, 624. Indiana statute considered, 624. proof of breach of duty imposed by, 628, 629. pleading in action for penalty under, 630, 631. action for statutory penalty, no bar to action for damages. GH3. 828 INDEX. [References are to sections.] STATUTE — Continued. liability of connecting line for penalty under, 635. defenses to action to recover penalty imposed by, 636 643. effect of repeal of statute imposing penalty, 644. forbidding disclosure of telegram, 715. See Constitutional Law; Penalty. STATUTE OF FRAUDS— applicability of to company, 702. subject matter to which statute applies, 703. how statute may be satisfied, 704. company as agent of the sender, 705. effect of delivery of message to company, 706. effect of delivery of telegram to addressee, 707. what telegram should contain to comply with statute, 708 time of delivery with respect to making of contracts, 709. written contracts adopted, 710. company as agent of sender of message, 738, 740. STOCK QUOTATIONS— contracts to furnish, 426. See Contract. STOCK— measure of damages, erroneous message for, 552. See Damages. STORMS— strength and stability of poles, 187. failure to restore line after storm, 188. liability for injuries from broken and hanging wires, 188. See Negligence. STREETS— municipal regulation of lines on, 61. compensation to abutting land owner, 64. embraced in term "public highways," 77. powers of municipality over, 80. powers of cities over lines on, 91. power of state over, discussed, 92. difference between, and ordinary highway, 100. uses to which easement in may be put, 108. rights of abutting owner discussed, 110. enjoining interference by one company with another in con- structing line in streets, 179. powers of city to regulate construction of lines in streets, 180. extension of lines on, 183. INDEX. 829 t Ili'f iTonces are Id Hectlonfi. ] STREETS— Continued. company must exercise reasonable care in construction and maintenance of lines on, 185. liability from broken and hanging wires, 188. construction of lines crossing, 189. construction of poles on, 190. state may regulate construction of lines on streets, 215. powers of municipalities to regulate lines on, 231. taxation as compensation for use of streets, 66.3. See Municipal Corporations; Roads and Highways. STRIKES— liability for injuries caused by, 360. SUBPOENA— duces tecum to produce telegram, 718, 719. description of message in writ, 720, 721. service of, to produce telegram, 721, 722. SUBSCRIBER— refusal of telephone company to furnish service to, 251. See IVIesSage. SUMMONS— service of, on company, 497. SUNDAY— company need not transmit news on, where such is not the custom, 39. no duty to send messages on, 434. matters of necessity and charity, 436, 437. no defense in action for tort, 439. in action to recover statutory penalty, defense that message was delivered on, 640. T. TAXATION— of telegraph or telephone companies, 13. no exemption from, on lines across navigable streams, 59. no exemption from on lines placed on streets, etc., 61. and toll distinguished. 87. of telegraph and telephone lines, 148. railroad line when not taxable, 148. of foreign company by states, 216. of domestic companies by municipalities, 216. power of state to tax, 646. 830 INDEX. [Ueferences are to sections.] TAXATION— Continued. how assessments may be made, 647. methods of, 648. classification for, discretion of legislature, 649. payment of tax, when properly assessed, 650. discrimination in, 651. lien of the assessment, 652. obstruction of interstate commerce, 653. property of company used in interstate commerce subject to state taxes, 654. taxation on capital stock in proportion to length of line in state, 655. mileage basis of valuation, 656. assessment of telegraph lines in New York State, 657. imposition of license tax, 658. distinction, between property tax and privilege tax, 659. license tax considered, 660. on gross receipts of company, 661. on telegraph messages in general, 662. municipal taxes, compensation for use of streets, 663. city license tax on telegraph companies, 664. special franchise taxes, 665. where right of being a corporation is derived from federal government, 666. interest when payment of taxes is delayed, 667. taxes of telephone companies, 668. See License Tax. TELEGRAM— defined, 670. See Evidence; Message. TELEGRAPH— term defined, 1. distinguished from telephone, 3, 4. along railroad not an additional servitude, 7. statute regulating, embraces telephone company, when, 5-14. See Message. TELEPHONE;- term defined, 1. distinguished from telegraph, '^. 4 embraced in telegraph legislation, when, 5-14. law concerning telegraph company applicable to, 17. belonging to individuals, when under control of public, 19. See Message. INDEX. ^^1 [Ueferences are to scctloiiF.] TERMINATION— of franchise to occupy streets, 90. See Franchise. TIME— in which claims against company are to be presented, 385. stipulation held void as against public policy, 389. delivery of night messages, 402. effect of stipulation of time of presenting claim in action for statutory penalty, 640. TICKERS— district telegraph companies and such as furnish "tickers," 745-751. See District Telegraph Company. TOLLS— telephone company may enforce payment of, 352. what are reasonable regulations of telephone company concern- ing, 352. See Charges; Rates; Rental. TORT— company liable for, after wrongful alienation of franchise, 47. telegraph company need not receive message that would sub- iect it to action of tort, 268. action for damages from negligent delays in transmission of message, 468. measure of damages, 518. exemplary damages in actions for 600-608. action by addressee of message, 417. 418. See Action; Damages; Exemplary Damages; Negligence. TRANSMISSION— of messages, 257-308. See Message. TREES— cutting of, by telegraph companies, 16. liability of company for cutting, 125-127. on sidewalks, liability of company. 128. on sidewalks, rights of owner, 128. exemplary damages, wrongfully cutting, 608. powers of cities, trees on city streets, 128. TRESPASS— of company cutting trees. 126, 127. injuring or destroying lines, 201. liability of company for malicious, 608. 832 INDEX. [References are to sections.] TROLLEY SYSTEM— consi(Jered and explained, 203. U. ULTRA VIRES— transfer of franchise, when, 46. See Franchise.. UNAVOIDABLE INTERRUPTION. special contract against, 403. See Contract; Message. UNDERGROUND WIRES— placing wires in streets, 61, 181. power of city to compel company to place wires underground, 231, 232. See Poles and Wires. V. VERDICT— for excessive damages, when set aside, 612-614. See Damages. VERIFICATION— of petition in condemnation proceedings, 138. W. WAIVER— of damages, owner failing to take action against wrongful entry of company, 53. by company of extra compensation for delivery beyond free limit, 298. by company of prepayment of charges, 344. of office hour regulation, 348. of regulations of telephone company, 353. of written claim against company, 394. of stipulation limiting liability of company, 409. of requirement of writing message on blank of company, 627. WAR— companies not liable for injuries caused by, 358. WIRES. character of property, 20. obstruction in streets, placing under ground, 61. INDEX. 833 I References are to sectlone.] WIRES— Continued. elevation of in streets, 94. construction of over railroad right of way, 170. placing under ground, 181. injuries from abandoned wires, 186. liability for injuries from broken and hanging wires, 188. liability for improper construction in street, 190. injuring or destroying, 201. regulation of, by cities, 231. exemplary damages in case of falling, 610. See Negligence. WIRELESS TELEGRAPHY— proof of message by, discussed, 691. WITNESSES— testimony of, in actions, 692. See Evidence. LAW TJTIRARY UNIVERSITY OF CALIFORNIA LOS ANGELES SOUTHERN REGIONAL LIBRARY FACILITY See Spine for Barcode Number