the company are liable to Dryburg is resisted on several grounds. In the first place, it is said that the case belongs to that class of torts in which malice is the gist of the action. This is a mistake. The narr. lays the duty to transmit the message as it was received, and assigns, as the breach, that it was transmitted "erroneously, untruly and carelessly." No malicious intent is alleged, nor was it necessary that one should be alleged or proved. It is enough that negligence is charged and proved. It is settled, upon abundant authority, that incorporated companies may be sued in their corporate character, for damages arising from their neglect of duty, and for trover. (1 Ch. Pl. 68; Chestnut H. & S. II. Turnpike Co. v. Rutter, 4 Serg. & R. 6; 8 Am. Dec. 675; Fowle v. Common Council of Alexandria, 3 Pet. 409; Bushel v. Commonwealth Insurance Co., 15 Serg. & R. 173.) And a corporation is liable in tort for the tortious act of its agent, though the appointment of the agent be not under seal, if the act be done in the ordinary service. (Smith v. Birmingham Gas Light Co., 1 Ad. & El. 526.) Apart, however, from corporation law, it is said, in the next place, that, upon the general principles of agency, the company can be held answerable to Le Roy only. That the relation of principle and agent existed between him and the company, there can be no doubt; but I do not think it equally clear that the relation was not established between Dryburg and the company. Telegraph companies are, in some sort, public institutions-open alike to all; and are largely used in conducting the commerce of the country. The banks decline to act upon their authority, and, doubtless, individuals may also decline; but when a man receives a message at the hands of the agent of such a company, and does act upon it, especially if, as Dryburg did, he use the same medium for responding to the message, it seems reasonable that, for all purposes of liability, the telegraph company shall be considered as much the agent of him who receives, as of him who sends, the message. In point of fact, the fee is often paid on delivery; and I am inclined to think the company ought to be regarded as the common agent of the parties at either end of the wire. But, however this may be, regarding the company as alone the agent of the sender of the message, is it to be doubted that an agent is liable for misfeasance, even to third parties? For nonfeasance, I agree, the agent is responsible only to his employer, because there is no privity of consideration betwixt the agent and a third party. The remedy in such cases must be sought in the maxim respondeat superior; but even to this rule there is an exception in the instance of masters of ships, who, although they are the agents or servants of the owners, are also, in many respects, deemed to be responsible as principals to third persons, not only for their own negligences and nonfeasances, but for those of subordinate officers and others employed under them. The general rule, however, was laid down by Lord Holt, in Lane v. Sir Robert Cotton, 12 Mod. 488, in these words: "A servant, or deputy, as such, cannot be charged for neglect, but the principal only shall be charged for it; but for a misfeasance, an action will lie against a servant or deputy, but not as a deputy or servant, but as a wrongdoer." (S. C. 1 Ld. Raym. 646.) The compilers have taken the rule from this source, and the cases cited by them show that it has generally been followed. (See Paley on Agency, 396 et seq.; and Story on Agency, secs. 308, 309, 314, 315 and the cases in notes.) The case of Camp v. Western Union Telegraph Co., 1 Metc. (Ky.) 164, does not affect this principle, as we apply it here, for there the action was by the sender of the message, and it appeared that the message was sent subject to the express condition that defendant would not be liable for mistakes arising from any cause, unless the message was repeated by being sent back. This company had such a rule also; but they charge fifty per cent advance upon the usual price of transmission, where the sender demands that the message be repeated back to the first operator, and Le Roy did not pay it. If it be granted that, in consequence of his not purchasing. this security against mistakes, he could not hold the company liable, it does not follow that Dryburg cannot. He did not know whether the message had been repeated back to Le Roy or not. He received it as the company delivered it to him, and it is very material to observe that the mistake was not due to what has been called the infirmities of telegraphing, but to the improper liberties which the operator took with the text before him. The magic power which presides over the wires performed its duty faithfully, and bore the very message it was bidden to bear, but the human agent sent a different message from that which he was commanded to send. This is the misfeasance the plaintiff complains of. The company claimed that their operator was a skilful and careful one. Then his negligence in this instance was the more apparent and inexcusable. If the handwriting was so bad that he could not read it correctly, he should not have undertaken to transmit it; but the business of transmission assumed, it was very plainly his duty to send what was written. It was no affair of his that the message would have been insensible. Messages are often sent along the wires that are unintelligible to the operator. When he presumed to translate the handwriting, and to add letters which confessedly were not in it, he made the company responsible to Dryburg for the damages that resulted from his wrong-doing. We do not conceive it necessary to go any farther in the discussion of this case. There are several errors assigned to which we have not specifically alluded, but we see nothing in them to require a reversal of the judgment. Judgment affirmed.1 1 Proof of delivery to telegraph company of a message and that it was inaccurately or not promptly delivered makes out a prima facie case of negligence. (Pearsall v. W. U. T. Co., 124 N. Y. 256.) Such company may exempt itself from liability for ordinary negligence of its servants, by special contract, but not by notice unless brought to personal knowledge of the sender. Ibid. Some state courts hold that a telegraph company is liable in damages for failure to deliver a cipher dispatch as if the message had been intelligible. (W. U. T. Co. v. Reynolds, 77 Va. 173; 46 Am. R. 715; W. U. T. Co. v. Hyer, 22 Fla. 637; 1 Am. St. R. 222; 1 So. R. 129; contra, U. S. T. Co. v. Gildersleve, 29 Md. 232; 96 Am. Dec. 519; see 81 Am. Dec. 607, n.) Whether damages can be recovered for mental anguish solely caused by negligence of the telegraph company is differently answered by our state courts. West v. W. U. T. Co., 39 Ks. 93; 17 Pac. 807; holds that they are not recoverable. Chapman v. W. U. T. Co. (Ky. 1890) 13 S. W. 880, holds that they are recoverable. The latter case also holds that the loss of a note which plaintiff alleged his father would have given him, had he been able to see his father before the latter's death, is a consequence too remote to sustain a claim for damages. GENERAL INDEX. 1 ABUSE of legal process, 193, 194. ACTION, may be brought by assailant, when, 185. ADMIRALTY RULE as to damages for death, 49. ANIMALS, domestic, injury by, 175. vicious, 344. ASSAULT, what is, 177, 178. a threatening gesture may be, 179, 181. intent to execute threat not necessary to, 182 n. a wanton blow, though in sport, is, 184 n. excessive self-defence is, 185, 188 n. may be made to defend possession, 188 n. no defence that one had license, 132. each party may sue when the one first assaulted uses excessive AUTHORIZED ACTS, when, and when not torts, 97. BOYCOTTING, 195-198 n. CATERER, liability for unwholesome food, 32. CAVEAT EMPTOR, when does not apply, 234. CONSPIRACY, 259–265. CONTRACT, special relations of a tort, 363. 377 CONTRIBUTORY NEGLIGENCE, 320, 333. CONTRIBUTION among wrong-doers, 166. CONVERSION, 271. definition of, 272. sale of goods bought of one who has no title is, 273. removing property from one place to another is not, 275. nor is borrowing from and returning to one who has no title, 276. nor is carrying for one not having title, but having possession, 280. damages in, 283-291. whether damages reduced by returning property, 291 n. by tenants in common, 291. DAMAGES, for death, 49, 59 n. how to be estimated, 60-62 n. insurance policy not to be deducted, 62 n. when killing is in another State, 63-66. general rules, 148. actual damage not necessary, when, 148. if clearly insufficient or excessive new trial granted, 149, 151. when property taken by honest mistake, 155. when property taken furtively, 155. when property purchased honestly from furtive taker, 156-158. must be alleged in defamation, when and how, 211. from dogs, 175. increased by number of copies of libel sold, 218 n. nominal, entitle one to abate nuisance, 313. DEATH, damages for, 49, 59 n. 62-66. DECEIT, falsehood in fact, 233. false representations concerning stock of goods, 234. reckless ignorance may result in, 237. forgetfulness does not excuse, 238. failure to give information is, when, 240, 242 n. duty of banker more strict than of trader, 241. |