*

*

justice of the claim of him who has sustained injury, to compensation to the delinquent who has caused it, have on one or another analogy afforded relief," and we will add that this is well illustrated by the various points of analogy between telegraph companies and common carriers, set forth in the preceding section herein. The court continues: "It may be admitted that technical objections can be made to the application of each and every principle in analogy to which they act. It yet remains true that the courts on some one or the other of these grounds have steadily adhered to the rule of liability. The fundamental principle is that there is some breach of duty, and whether this duty is logically deduced from any well-recognized rules applicable to other relations, becomes immaterial when there is a consensus of judicial opinion as to its existence." 50 Again it is held in Nebraska that it is the established law that a telegraph company is a public carrier of intelligence with rights and duties analogous to those of a public carrier of goods or passengers,51 and is bound to promptly and correctly transmit and deliver all messages intrusted to it.52. So in other cases a telegraph company is declared or held to be a common carrier of messages, the same as a railroad company is of goods.53

§ 21. Telephone company is common carrier of news.- A telephone company is also held a common carrier of news and

50 Western Un. Teleg. Co. v. Allen, 66 Miss. 549, 6 So. 461, 3 Am. Elec. Cas. 676, 680, 681, per Cooper, J.

51 Central Un. Teleg. Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721, 2 Am. Elec. Cas. 14, 20, per Niblack, C. J.; Western Un. Teleg. Co. v. Call Publishing Co., 44 Neb. 326, 62 N. W. 506, 48 Am. St. Rep. 729, 5 Am. Elec. Cas. 673, 683, per Irvine, C.; Pacific Teleg. Co. v. Underwood, 37 Neb. 315, 55 N. W. 1057, 40 Am. St. Rep. 490, 4 Am. Elec. Cas. 762, 764, per Ragan, C.; Kemp v. Western Un. Teleg. Co., 28 Neb. 661, 44 N. W. 1064, 30 Am. &

Eng. Corp. Cas. 608, 26 Am. St. Rep. 363, 3 Am. Elec. Cas. 711, 714, per Maxwell, J.

52 Pacific Teleg. Co. V. Underwood, 37 Neb. 315, 55 N. W. 1057, 40 Am. St. Rep. 490, 4 Am. Elec. Cas. 762, 764.

53 Dailey v. State, 51 Ohio St. 348, 46 Am. St. Rep. 578, 5 Am. Elec. Cas. 186, 196, 37 N. E. 710, per Spear, J.; Telegraph Co. v. Texas, 105 U. S. 460, 1 Am. Elec. Cas. 373, 374, 375, per Mr. Chief Justice Waite; Western Un. Teleg. Co. v. Mayor of New York, 38 Fed. 552, 3 Inter. Com. Rep. 533, 3 L. R. A. 449, Ry. & Corp. Law J. 105,

intelligence within a statute providing for the regulation of rates of common carriers.54

carriers

§ 22. Telegraph — - Common Constitutions and statutes. Under the Constitution of Kentucky 55 telegraph companies are to be treated as common carriers and are not permited to contract for relief against their common-law liability, and such Constitution is not in conflict with the interstate commerce clause of the Constitution of the United States.56 In California the Civil Code provides that “A carrier of messages for reward must use great care and diligence in the transmission and delivery of messages; 57 also that "Every person who offers to the public to carry property or messages, excepting only telegraph messages, is a common carrier of whatever he thus offers to carry.' 29 58 In Oklahoma the statute prescribes certain duties for "a carrier of messages by telegraph," "59 and in South Dakota a telegraph company is by statute a common carrier of messages.60 Other statutory provisions relating to the duties and liabilities of telegraph companies will be considered elsewhere.

§ 23. Telegraph and telephone - Relation to commerce as common carrier or carrier of messages. As will hereafter appear 1 both the telegraph and telephone are instruments of commerce, so it is also declared that no reasonable distinction

2 Am. Elec. Cas. 195, 197, per Wallace, J.; Union Trust Co. v. Atchison, Topeka & S. F. R. (N. Mex., 1895), 43 Pac. 701, 6 Am. Elec. Cas. 171, 181, per Laughlin, J.

54 Nebraska Teleph. Co. v. State, Yeiser, 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113. See § 27 herein. 55 § 196.

56 Western Un. Teleg. Co. v. Eubank, 100 Ky. 591, 18 Ky. L. R. 995, 38 S. W. 1068, 36 L. R. A. 711, 6 Am. Elec. Cas. 770, 778, 779. 57 Cal. Civ. Code, § 2162.

58 Cal. Civ. Code, § 2168; Western Un. Teleg Co. v. Cook, 9 U. S. C. C. A. 680, 61 Fed. 624, 5 Am.

Elec. Cas. 799, 803, per Ross, Dist. J.; Hart v. Western Un. Teleg. Co.. 66 Cal. 579, 56 Am. Rep. 119, 8 Am. & Eng. Corp. Cas. 24, 6 Pac. 637, 1 Am. Elec. Cas. 734.

59 Stat. Okla., § 28, c. 11, p. 152, Stat. 1890, par. 543; Butner V. Western Un. Teleg. Co., 2 Okla. 234, 37 Pac. 1087, 5 Am. Elec. Cas. 758, 770, per Burford, J.

60 Comp. Laws S. Dak., §§ 38813910; Kirby v. Western Un. Teleg. Co., 7 S. Dak. 623, 30 L. R. A. 621. 65 N. W. 37, 6 Am. Elec. Cas. 824. on rehearing of S C., 4 S. Dak. 105, 55 N. W. 759, 4 Am. Elec. Cas. 783. 61 §§ 43 and 44.

exists between the office of common earrier "by telephone, and the office of common carrier of goods by railway or steamboat. In both cases it is commerce between the States," so far as the principle concerns the power of a State to tax goods started for transportation to another State or delivered to a common carrier for that purpose.62 It is also said that "The electrict telegraph line is at this day and time as much a common carrier and national highway in the transmission of telegraphic business and intelligence as the railroads and steam vessels.” 63 Again, it is declared that a telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods." 64

§ 24. Telegraph companies - Decisions that they are common carriers.— An early California case holds that telegraph companies are common carriers,65 but, as stated in a preceding section herein, their status is changed by statute in that State. In a Georgia decision, one of the judges declares that such companies are common carriers, 66 and in Missouri it is said, "Telegraph companies are common carriers, so are railroad companies." 67 Again the United States Circuit Court of Appeals held in 1893, that "It is no longer open to question that telephone and telegraph companies are subject to the rules governing common carriers and others engaged in other like

62 Matter of Taxation of the Penn. Teleph. Co., 48 N. J. Eq. 91, 27 Am. St. Rep. 462, 3 Am. Elec. Cas. 9, 11, 12, 20 Atl. 846, per Bird, V. C.

63 Union Trust Co. of N. Y. v. · Atchison, Topeka & S. F. Co., 8 N. Mex. 327, 43 Pac. 701, 6 Am. Elec. Cas. 171, 181, per Laughlin, J.

64 Dailey v. State, 51 Ohio St. 348, 46 Am. St. Rep. 578, 5 Am. Elec. Cas. 186, 196, 197, 37 N. E. 710, per Spear, J.; Western Un. Teleg. Co. v. State Board of Assessment, 132 U. S. 472, 10 Sup. Ct. 161, 3 Am. Elec. Cas. 1, 5, 10 S. Ct. 161, per Mr. Justice Miller; Western Un. Teleg. Co. v. Mayor of N.

Y., 38 Fed. 552, 3 Inter. Com. Rep. 533, 3 L. R. A. 449, 6 Ry. & Corp. Law. J. 105, 2 Am. Elec. Cas. 195, 197, per Wallace, J.

65 Parks v. Alta Cal. Teleg. Co., 13 Cal. 422, 73 Am. Dec. 589, Allen's Teleg. Cas. 114, 117, per Baldwin, J.

66 Western Un. Teleg. Co. v. Fontaine, 58 Ga. 433, 1 Am. Elec. Cas. 229, 234, per Jackson, J.; also spoken of in this case as a quasi-common carrier.

67 Connell v. Western Un. Teleg. Co., 116 Mo. 34, 38 Am. St. Rep. 575, 22 S. W. 345, a case relating to recovery for mental anguish.

public employments. This has been so frequently decided that the point must be regarded as settled. While it has not been directly before the Supreme Court of the United States, cases in which it has been so determined are cited approvingly in Budd v. New York." 68 This opinion was given by District Judge Butler," and it was held that local telephone companies could not obligate themselves by contract with their lessor, the parent company, to discriminate in favor of one telegraph company against others, but must serve the public impartially.70 In the United States Supreme Court, however, this quotation was noted, and the court said it "had regard, as is evident from the context, and from the reference to Budd v. New York," to those rules only which require persons or corporations exercising a public employment to serve all alike, without discrimination, and which make them subject to legislative regulation." 72

company

- Alarm

§ 24a. Telegraph system Messenger service Not common carrier.-It is held in New York that a telegraph company having its route along and through a city's streets connecting offices and dwelling houses and any other buildings by means of said telegraphs with the police station, establishing thereby an alarm telegraph, and which company in addition thereto maintains a staff of messenger boys for the use of patrons who pay for the service, but which does not assume to have been incorporated to carry or deliver packages or other property, even though such boys did receive and deliver packages, is not a common carrier in respect to the services so rendered.73

68 143 U. S. 517, 12 Sup. Ct. 468, 4 Inter. Com. Rep. 45, 36 Am. & Eng. Corp. Cas. 31.

69 Delaware & Atlantic Teleg. & Teleph. Co. v. State, ex rel. Postal Teleg. Cable Co., 50 Fed. 677, 3 U. S. App. 30, 105, 2 U. S. C. C. A. 1, 39 Am. & Eng. Corp. Cas. 516, 4 Am. Elec. Cas. 579, 581.

70 Affirming 47 Fed. 677, 39 Am. & Eng. Corp. Cas. 15, 3 Am. Elec. Cas. 533, 542. The citations in this case relate to discrimination.

71 143 U. S. 517, 12 Sup. Ct. 468, 4 Inter. Com. Rep. 45, 36 Am. & Eng. Corp. Cas. 31.

72 Primrose v. Western Un. Teleg. Co., 154 U. S. 1, 38 L. Ed. 883, 14 Sup. Ct. 1098, 5 Am. Elec. Cas. 809, 827, per Mr. Justice Gray. See State ex rel. Postal Teleg. Cable Co. v. Deleware & A. Teleg. & Teleph. Co., 47 Fed. 633, 3 Am. Elec. Cas. 533, 541, 542, per Wales, J., case affd., 50 Fed. 667.

78 Hirsch v. American Dist. Teleg.

§ 25. Telegraph companies Not bailees.

Telegraph com

panies are declared not bailees in any sense for various reasons, which are substantially those given in determining whether they are comomn carriers, viz.: that they are intrusted with nothing but an order or message to be carried in a different way and form; that there is peculiar liability to error in transmitting; that the message cannot be embezzled; is of no intrinsic value; its importance cannot be estimated except by the sender; and that the measure of damages has no relation to the value of the message itself except as such value may be disclosed by the message or be agreed upon between the sender and the company.74

§ 26. Telegraph companies - Decisions declaring them bailees. Another view is that a telegraph company is a bailee. "The true nature and character of its liability would seem to be that of a bailee for hire. The sender of a message, bails or intrusts it to the defendant for a certain purpose, and the defendant undertakes to accomplish that purpose by doing some work and bestowing some care on the thing bailed, for a stipulated reward. Bailees under the law of this State (Georgia), are not insurers against loss or damage to the thing bailed, but are required to exercise care and diligence in protecting and keeping safely the thing bailed." 75

Co. (Sup. Ct. App. Div. 1906) 98
N. Y. Supp. 371, revg. 95 N. Y.
Supp. 562.

74 United States: Primrose V. Western Un. Teleg. Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883, 5 Am. Elec. Cas. 809, 818, per Mr. Justice Gray. Georgia: Western Un. Teleg. Co. v. Fontaine, 58 Ga. 433, 1 Am. Elec. Cas. 229, 233, per Bleckley, J. Mississippi: Western Un. Teleg. Co. v. Allen, 66 Miss. 549, 6 So. 461, 3 Am. Elec. Cas. 676, 679, 680, per Cooper, J. Missouri: 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, per Gantt, P. J. New

York: De Rutte v. New York, Alb. & B. E. M. Teleg. Co., 1 Daly (N. Y.), 547, Allen's Teleg. Cas. 273, 284, per Daly, F. J. Tennessee: Western Un. Teleg. Co. v. Mellon, 96 Tenn. 66, 33 S. W. 725, 6 Am. Elec. Cas. 835, 837, per McAlister, J.; Marr v. Western Un. Teleg. Co., 85 Tenn. 529, 16 Am. & Eng. Corp. Cas. 243, 3 S. W. 490, 2 Am. Elec. Cas. 720, 725, per Lurton, J.

75 Western Un. Teleg. Co. v. Fontaine, 58 Ga. 433, 1 Am. Elec. Cas. 229, 232, per Warner, C. J. This case was one of a court divided against itself, as another judge held that a telegraph company was not a bailee at all and another that it was