contract, but is the result of the character of their business and the laws regulating them." Also deIclared that it could not be held that the same degree of responsibility should attach to telegraph companies now as when their system was crude and appliances experimental. They are not common carriers; that title has been abandoned. The system "occupies a unique and peculiar place, and all analogies to former agencies fail when we come to apply the rules of liability." Reed v. Western Un. Teleg. Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, 6 Am. Elec. Cas. 791, 796, 797, 37 S. W. 904, per Gantt, P. J., holding that such companies cannot, by stipulation, exempt themselves from liability for negligence. The reasons" usually assigned for the extraordinary responsibility of common carriers" not applicable to telegraph companies; the relation they occupy to the public makes it necessary, for reasons of public policy, to hold them to a more strict accountability than bailees, etc. (Laws N. Y., 1848, p. 395, makes it the duty of telegraph companies to transmit messages with impartiality and good faith.) De Rutte v. New York, Albany, etc., Teleg. Co., 1 Daly (N. Y.), 547, 30 How. Pr. (N. Y.) 403, Allen's Teleg. Cas. 273, 280, 284 et seq., per Daly, F. J., a case of liability for error, where message over connecting lines and limitation of liability by requiring mes

J.;

Id.

sage to be repeated. Held not liable as common carrier and distinction made. Leonard v. New York, Albany, etc., Teleg. Co., 41 N. Y. 544, 1 Am. Rep. 446, Allen's Teleg. Cas. 500, 503, 505, 506, 510, per Hunt, J., and Woodruff, J., holding company liable for negligence in transcribing message. Although not, strictly speaking, common carriers, the law considers them such, "subject only to such modifications as the peculiar nature of their business renders absolutely necessary." The nature of their relation to common carriers is also discussed. Baldwin v. United States Teleg. Co., 54 Barb. 505, 6 Abb. Pr. (N. S.) 405, on demurrer; 45 N. Y. 744, rev'g 54 Barb. 505, Allen's Teleg. Cas. 613, 641, per James, P. 651, per Allen, J., a case of liability where transmission is over connecting lines and the effect of notice of importance of telegram. Such companies' method of business is radically and essentially different from that of common carriers. "The peculiar and stringent rules by which the latter is (are) controlled and regulated can have very little just and proper application to the former." (Statute N. Y., Laws 1848, c. 265, § 11, makes it the duty of such companies to receive despatches and to transmit with impartiality, etc.) "They may, in one sense, be called common carriers, as they are engaged in a public employment," etc. Their "liability is regulated by contract, and

the nature of their public employment." Breese V. United States Teleg. Co., 45 Barb. (N. Y.) 274, 31 How. Pr. 86, 48 N. Y. 132, Allen's Teleg. Cas. 663, 669, 670, per Johnson, J.; Id. 683, per Earl, Comr., a case of sender being bound by signing telegraph blank and stipulation limiting liability. Peculiar liability of common carrier does not exist. Schwartz v. Atlantic & Pacific Teleg. Co., 18 Hun (N. Y.), 157, 1 Am. Elec. Cas. 284-287, per Learned, P. J., holding that regulations must be reasonable. They are not chargeable with absolute liability of common carriers, yet they are engaged in a public employment for hire and must exercise skill and diligence adequate to the obligations they assume, etc. Wolfskehl v. Western Un. Teleg. Co., 46 Hun (N. Y.), 542, 2 Am. Elec. Cas. 647649, per Dykman, J., a case of duty of telegraph company to the public and addressee's rights. See also Kiley v. Western Union Teleg. Co., 109 N. Y. 231, 2 Am. Elec. Cas. 650, 652, 16 N. E. 75, per Earl, J., a case of stipulation as to unrepeated message held reasonable and valid. Macpherson. v. Western Un. Teleg. Co., 52 N. Y. Super. 232, 1 Am. Elec. Cas. 755, 756, per Ingraham, J., where they are held not common carriers in case of action for damages for failure to transmit. The weight of authority is that they are not common carriers, although same analogy. Western Un. Teleg. Co. v. Griswold, 37 Ohio St. 301, 1 Am. Elec. Cas. 329, 331 et seq., per

Boynton, C. J., holding that telegraph companies cannot stipulate against their own negligence. The obligations of telegraph companies, as far as they reach, spring from the same sources as those of common carriers, that is the public nature of their employment and the contract under which their particular duty is assumed. New York & Printing Teleg. Co. v. Dryburg, 35 Penn. St. 298, Allen's Teleg. Cas. 157, 161, 162, per Woodward, J., a case of liability for mistakes and stipulation. "Analogy between common carriers of goods and common carriers of messages is not perfect. The nature of the services performed differs materially in the two cases and the real responsibility differs in a corresponding manner." Aiken v. Western Un. Teleg. Co., 5 S. C. 358, 1 Am. Elec. Cas. 121, 124, per Willard, A. J., a case of stipulation in respect to half-rate messages. They are not common carriers, distinction discussed. Pinckney v. Western Un. Teleg. Co., 19 S. C. 71, 1 Am. Elec. Cas. 516, 519-522, per Simpson, C. J., a case relating to the duties of telegraph companies. While they are not common riers (distinction discussed)," there is, however, much analogy between the common carrier and the tele

car

graph company. Both are in the exercise of a quasi-public occupation, and both have, by the public, conferred upon them valuable franchises, and both may and do invoke the high prerogative of exercising the State's right of eminent do

main. The obligation to serve the public without discrimination and for reasonable charges is imposed upon both occupations. The use of the facilities afforded by telegraph companies has become as much of a public necessity as were common carriers." Marr V. Western Un. Teleg. Co., 85 Tenn. 529, 2 Am. Elec. Cas. 720, 724-727, 3 S. W. 496, per Lurton, J., a case relating to the duty of telegraph companies and the inability to stipulate for exemption from liability arising from its own negligence. They are not common carriers, but may validly limit their liability with respect to connecting lines. Western Un. Teleg. Co. v. Munford, 87 Tenn. 190, 2 Am. Elec. Cas. 751, 754, 10 S. W. 318, per Lurton, J., they are not common carriers, but are "held responsible for a very high degree of diligence," and by statute must transmit messages without discrimination. (M. & V. Code, §§ 1542, 1543.) Western Un. Teleg. Co. v. Mellon, 96 Tenn. 66, 6 Am. Elec. Cas. 835, 837, 33 S. W. 725, per McAlister, J., a case of failure to deliver telegram, and a stipulation limiting time for presentation of claim. "The great weight of authority is that though in some essential particulars they partake of the character of common carriers, they are not strictly such and should not be held to the same

*

degree of strict responsibility." They must serve the public impartially and send messages in the order received. Their employment is

quasi-public and they exercise the power of eminent domain, etc. Western Un. Teleg. Co. v. Neill, 57 Tex. 283, 1 Am. Elec. Cas. 352, 355, per Bonner, Asso. J., a case of duty of such companies and reasonableness and validity of stipulation limiting liability for half-rate messages. They are not common carriers, but are engaged in a business almost if not quite as important and cannot stipulate against liability arising from their own negligence. Wertz v. Western Un. Teleg. Co., 7 Utah, 446, 3 Am. Elec. Cas. 808, 810, 27 Pac. 172, per Zane, C. J. They are not common carriers, but their liability is not founded wholly upon contract. They are chartered for public purposes with extraordinary powers; they exercise the right of eminent domain; they are obliged to receive and transmit messages; they are liable for neglect without any express contract. If they rely upon a contract or notice to restrict their liability, it must be one not in violation of public policy. They must, nolens volens, perform the duties of diligence and good faith to the public, etc. Gillis V. Western Un. Teleg. Co., 61 Vt. 461, 2 Am. Elec. Cas. 841, 847, 17 Atl. 736, per Rowell, J., a case of duty of such companies, limitation of liability as to unrepeated messages being void when exempting from company's own negligence. See Western Un. Teleg. Co. v. Reynolds, 77 Va. 173, 1 Am. Elec. Cas. 487, 494 et seq., per Lacy, J., where the matter is exhaustively discussed, to the effect

Ark. 434, 3 Am. Elec. Cas. 592, 595, 14 S. W. 649, per Battle, J., holding void a stipulation exempting from liability against negligence. Illinois: Tyler v. Western Un. Teleg. Co., 60 Ill. 491, 1 Am. Elec. Cas. 14, 18, 19, per Breese, J., a case of stipulation limiting liability held invalid. Indiana: Central Un. Teleph. Co. v. Swoveland, 14 Ind. App. 341, 42 N. E. 1035, 6 Am. Elec. Cas. 679, 688, 42 S. E. 1035 (same rule applied to telephone companies), per Reinhard, J., a case relating to the general duties of telephone companies, their nature, their duty under the statute (Rev. Stat. Ind., 1894, § 5529), to serve with impartiality, etc., and right to make reasonable regulations. Maine: Fowler v. Western Un. Teleg. Co., 80 Me. 381, 2 Am. Elec. Cas. 607, 611, 614, 15 Atl. 29, per Foster, J., a case as to the duty of a telegraph company, its inabil ity to stipulate against its own negligence and reasonable diligence in delivery of message. The expressions "great care," "due and reasonable care," 66 ordinary care, and vigilance," reasonable and proper care," reasonable degree of care and diligence," care and diligence adequate to the business which they undertake," "with skill, care, and with attention," "a high degree of responsibility" said to be various forms of expressing what is known as ordinary care. Id. 612. Maryland: Birney V. New York Wash. Print. Teleg. Co., 18 Md. 341, 81 Am. Dec. 607, Allen's Teleg. Cas.

66

66

99 66

&

195, 212, per Goldsborough, J., a case of right under the statute (1852, c. 369), to establish reasonable rules and regulations, but cannot stipulate against own negli gence. Massachusetts: Ellis V. American Teleg. Co., 13 Allen (Mass.), 226 Allen's Teleg. Cas. 306, 310 et seq., per Bigelow, C. J., a case of limitation of liability by reasonable rules, etc. (Statute in this case limited and defined duties of telegraph companies, Gen. Stat., C. 64.) Michigan: Western Un. Teleg. Co. v. Carew, 15 Mich. 525, Allen's Teleg. Cas. 345, 352, 353, per Christiancy, J. (statute prescribed duties and liabilities and required impartiality, etc., Comp. L., c. 70), a case of what is a reasonable stipulation and effect of signing telegraph blank. Missouri: Reed v. Western Un. Teleg. Co., 135 Mo. 661, 37 S. W. 904, 34 L. R. A. 492, 6 Am. Elec. Cas. 791, 797, per Gantt, P. J., holding invalid a stipulation exempting from liability. New York: De Rutte v. New York, Albany & B. Electric M. Teleg. Co., 1 Daly (N. Y.), 547, 30 How. Pr. (N. Y.) 403, Allen's Teleg. Cas. 273, 284 et seq., per Daly, F. J., a case of connecting lines, statutory duty (Stat. Laws N. Y., 1844, p. 395, § 11), rules and regulations, and notice thereof to sender of message. Baldwin v. United States Teleg. Co., 45 N. Y. 744 (rev'g 54 Barb. [N. Y.] 505), Allen's Teleg. Cas. 613, 651, per Allen, J., a case of connecting lines and notice of importance of tele