5. And the transmission of a message "means its transmission from the office or station at which it is received to the one to which it is sent"; and delivery means "the delivery of it to the person to whom it is addressed": Scott and Jarnigan on Law of Telegraphs, sec. 264.

Therefore, delivery to the messenger without acceptance by the company should not fix any liability on the company. If delivery to the messenger were delivery to the company, acceptance by the messenger must be held to be acceptance by the company, and this would take from the company its undoubted right to refuse to transmit a message for any one or more of the reasons above stated.

No analogy between such a case as this and that of a lifeinsurance agent can justly be drawn, because none of the reasons which have impelled the courts, in modern decisions, to treat the agent of the insurance company as the agent of the insurer, where a somewhat similar rule or stipulation is printed upon the back of the application or policy of insurance, have any application here. For the reasoning of the. courts in such insurance cases, see the opinion of Miller, J.,、 who announced the decision of the court in the case of In-surance Co. v. Wilkinson, 13 Wall. 222, 234, 236.

The foregoing disposes of the case, and the question raised as to the measure of damages need not be considered. Judgment affirmed.

TELEGRAPH COMPANIES-BINDING EFFECT OF Printed ReguLATIONS. › A telegraph company has power to make reasonable regulations for the conduct of its business, and its customers are bound by them after they had notice of their existence: Western Union Tel. Co. v. Neel, 86 Tex. 368; 40 Am. St. Rep. 847, and note. The sender of a telegraphic message who writes the same upon a blank of the company upon which certain conditions limiting the liability of the company is printed is chargeable with notice of and is deemed to assent to such conditions: Hill v. Western Union Tel Co., 85 Ga. 425; 21 Am. St. Rep. 166. See, especially, the extended notes to Camp v. Western Union Tel. Co., 71 Am. Dec. 466, and Wan Union Tel Co. v. Blanchard, 45 Am. Rep. 490.

CONYERS V. POSTAL TELEGRAPH CABLE COMPANY."

[92 GEORGIA, 619.]

TELEGRAPH COMPANIES-LIABILITY OF CONNECTING COMPANY FOR DELAY. A telegraph company receiving a prepaid message from another suck company, to whom the sender has delivered it, and who has transmitted it over its line, is liable for a penalty imposed by statute for fail are to transmit and deliver the message with due diligence. Such statute being penal in its nature, the claim by the connecting company that it acted merely as the agent of the first company is no defense. PLEADING AMENDMENT OF DECLARATION. - A declaration alleging as a cause of action the failure of a telegraph company to deliver at a certain place, with due diligence, a particular message therein set out which the company had received for transmission and delivery, may be amended by alleging that the message was received by the company at another point than that stated in the original declaration without changing the cause of action, and such amendment is properly allowed. TELEGRAPH COMPANIES-MESSAGE DELIVERED AS EVIDENCE OF MESSAGE SENT.-Iu an action against a telegraph company to recover for failure to deliver a message with due diligence, the message as delivered is admissible to prove the contents of the message as sent, without producing or accounting for the absence of the message as sent. TELEGRAPH COMPANIES PREPAID MESSAGE AS EVIDENCE CALLING FOR PROMPT DELIVERY.-In an action against a telegraph company to recover for failure to deliver a message with due diligence, the fact that the message as delivered was marked "paid" is evidence tending to show that it was a prepaid message, and should have been delivered with due diligence as required by the statute upon which the action is founded.

Kontz & Conyers, for the plaintiff.

Glenn & Maddox, for the defendant.

619 SIMMONS, J. 1. Mrs. Conyers, the addressee of a telegraphic message, sued the Postal Telegraph Cable Company for the statutory penalty of one hundred dollars for failure to deliver with due diligence. At the trial it appeared from the evidence that the message was received by the defendant from another telegraph company, which had received 620 it from the original sender, and which had transmitted it to the end of its own line; from which point the defendant transmitted it to the city of Atlanta, the place to which it was directed, but failed to deliver it to the plaintiff until after more than thirty-six hours had elapsed from the time it was received at the Atlanta office, although she resided in that city, and the street and number of her residence were correctly given in the message. The charges for the entire service were prepaid to the first company, and from that

company the defendant received payment for its own part of the service. The trial court granted a nonsuit, upon the ground that the defendant was simply the agent of the first company, and that the suit should have been brought against the principal. This we think was error. In this action the plaintiff seeks to recover the penalty for the wrongful violation of a public duty-a duty imposed by statute and not merely by contract, and her right to the penalty is given by the statute, and is not dependent upon any privity of contract with the defendant. The violation of this duty "is a wrong, and in dealing with the wrong the element of contract is not involved": Gray v. Western Union Tel. Co., 87 Ga. 350; 27 Am. St. Rep. 259; Western Union Tel. Co. v. Taylor, 84 Ga. 408. In Western Union Tel. Co. v. Nunnally, 86 Ga. 503, suits under this statute are classed with qui tam actions. It is there said: "The action is to recover a penalty, and it is brought by one who, if not literally an informer, is designated by statute to take the fruits of an action brought for the violation of a public penal law." Under the statute, not merely the first company, but every telegraph company that receives a dispatch, "whether from other telegraphic lines or from individuals," and which has been paid or tendered payment of the usual charge, must perform with due diligence the service it undertakes to perform on its own line; and, for the failure to perform this duty, the 621 right to recover the statutory penalty is given to "either the sender of the dispatch, or the person to whom sent or directed, whichever may first sue": Acts 1887, p. 111. So whether the company sued is responsible directly to the person from whom the first company received the message, or is responsi ble instead to that company itself as the sender, it is in either case liable to the person to whom the message is addressed, if there was a violation of the statutory duty. If liable to anybody at all it cannot escape liability to the latter, subject only, as we have seen, to the condition that he is the first to sue; and we do not understand the court below to have held that, because the company here sued was not employed by the original sender, it escaped all liability at all under the statute. It is therefore immaterial whether the company first employed contracted with the sender to be responsible for the whole service of transmission and delivery or not. Clearly, it was never intended that a telegraph company should shield itself from the requirements of the statute by

3

setting up that another company assumed primarily responsibility for the whole service. The claim that it acted as agent only cannot avail it in such case any more than it could in case of the violation of any other penal enactment. The question is, Did the defendant company undertake to transmit and deliver the message, and did it fail to deliver with due diligence, after payment or tender of the usual charge? If it did, the plaintiff is entitled to the penalty.

2. The declaration, as it originally stood, alleged that the delivery of the message for transmission was made by J. W. Burge to the defendant's agent at Stilesboro, Georgia. At the trial the plaintiff was allowed to amend by alleging that the delivery at that place was to the agent of the telegraph line of the East and West Railroad Company of Alabama, who forwarded the message over that 622 line to Cartersville, Georgia, where it was delivered to the defendant's agent, and was by him forwarded over the defendant's line to Atlanta, etc. This amendment was objected to on the ground that it set forth a new and distinct cause of action; and its allowance by the court below is assigned as error in the defendant's cross-bill of exceptions.

The cause of action alleged in the declaration was the failure to deliver to the plaintiff at Atlanta, with due diligence, a particular message therein set out, which the defendant had received for transmission and delivery; and the allegation in the amendment that this message was received by the defendant at another point than that stated in the declaration did not change the cause of action. So likewise as to the allegation that the defendant received the message through another telegraph line, to whose agent Mr. Burge had delivered it, instead of receiving it directly from Mr. Burge, as appeared from the declaration. As we have already explained in this opinion, the action being by the person to whom the message was addressed, and the breach of duty complained of being the failure to deliver with due diligence to the plaintiff, it makes no difference whether the message was received in the one way or the other. In the - declaration as amended, the identity of the matter upon which the action is founded is fully preserved, and the effect of the amendment is simply to correct a misdescription in setting out matter of inducement.

3. The message delivered at Atlanta by the defendant to the plaintiff was admitted in evidence over the objection of

the defendant that it was not admissible, because the message received for transmission was the highest and best evidence, and its absence was not accounted for; and the overruling of this objection is assigned as error. The court was clearly right in this 623 ruling. The same question was made in the case of the Western Union Tel. Co. v. Fatman, 73 Ga. 285, 54 Am. Rep. 877, which like the present case was an action for the failure to deliver the message in due time, and it was there held that the copy was admissible. There was no complaint that the message delivered was not the message transmitted or was not the same as that received by the defendant from the sender, but the complaint was that the copy which it was the defendant's duty to write out and deliver was not delivered to the plaintiff in due time; and as was said by the court in the case referred to: "When it delivered that copy, it cannot well deny that it is a fac simile of the original as received by it, and which it wrote out itself, but delivered too late": See, also, Gray on Communication by Telegraph, secs. 128 et seq., 134.

4. The message delivered by the defendant to the sendee being marked "paid," there was evidence from which the jury could find that the defendant's charges were prepaid, and therefore that the message should have been delivered with due diligence, as required by the statute.

Judgment reversed as to the main bill of exceptions, and affirmed as to the cross-bill.

TELEGRAPH COMPANIES - LIABILITY OF CONNECTING LINES. — When a telegraph company receives a dispatch for transmission from a connecting telegraph line it is bound to exercise due diligence in transmitting and delivering the message, or respond in damages to the party injured by its failure to do so, and this without regard to the contract between the sender and the company first receiving the message: Smith v. Western Union Tel. Co., 84 Tex. 359; 31 Am. St. Rep. 59, and note. See, further, the notes to Squire v. Western Union Tel. Co., 93 Am. Dec. 162, and Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 493.

TELEGRAMS AS EVIDENCE: See the note to Western Union Tel Co. v. Blanchard, 45 Am. Rep. 500.