The main question here is, Is such a company a common carrier? There are decisions in which the affirmative is quite distinctly asserted. And there are others in which it is asserted with more or less of qualification. (a) 1 When a new

(a) The only case in which telegraph companies have been expressly held to be common carriers is Parks v. Alt* Cal. Tel. Co. 13 Cal. 422. In this case the court say: "The rules which govern the liability of telegraph companies are not new. They are old rules applied to new circumstances. Such companies hold themselves out to the public as engaged in a particular branch of business, in which the interests of the public are deeply concerned. They propose to do a certain service for a given price. There is no difference in the general nature of the legal obligation of the contract between carrying a message along a wire and carrying goods or a package along a route. The physical agency may be different, but the essential nature of the contract is the same. In both cases the contract is binding, and the responsibility of the parties is governed by the same general rules." - In McAndrew6 v. Electric Tel. Co. 83 Eng. L. & E. 180, telegraph companies are spoken of as being "in the position of carriers who would be liable at common law, but who may limit their liability by special notice, but the only question before the court was the reasonableness of the regulation relieving the company from liability for unrepeated messages. A similar view seems to have been taken in Bowen v. Lake Erie Tel. Co. 1 Am. Law Reg. 686, where it was held that "telegraph companies holding themselves out to transmit despatches correctly are under obligation so to do unless prevented by causes over which they have no control." In Baldwin v. United States Telegraph Co., these companies are regarded substantially as common carriers. On the other hand, in Birney v. N. Y. & Wash. Printing Tel. Co. 18 Md. 341, the court say: "While a common carrier is an insurer and is protected from liability by the act of God, or the enemies of the State, he can avail himself only of such excuses. He sees what happens to his charge the moment it happens. But a telegraph company, owing to innumerable causes which may disturb the security of its lines, would be almost as often open to liability because of the providences of God unknown to it, as because of any other reason. This telegraph company is not a common carrier, but a bailee, performing through its agents a work for its employer, according to certain rules and regulations which under the law it has a right to make for its government."-And in De Rutte v. N. Y., Alb. & Buf. Tel. Co., the court of Common Pleas say: "Common carriers are held to the responsibility of insurers for the safe delivery of property intrusted to their care, upon grounds of public policy, to prevent frauds or collusion with them, and because the owner, having surrendered up the possession of his property, is generally unable to show how it was lost or injured. These reasons, which are the ones usually assigned for the extraordinary responsibility of common carriers, cannot be regarded as applicable to the same extent to telegraph; nor are there any reasons in our judgment why they should be held in any extent to the responsibility of insurers for the correct transmission and delivery of intelligence." Similar views were expressed by the Supreme Court of the same State in Breese v. U. S. Tel. Co. 45 Barb. 274; affirmed in 48 N. Y. 132, and by the Court of Appeals in the recent case of Leonard v. N. Y., etc. Tel. Co, and in the following cases: N. Y. & Wash. Tel. Co. v. Dryburg, 35 Pa. St. R. 298; Shields v. Wash. & N. O. Tel,

1 In Georgia, a telegraph company is a bailee for hire, and not a common carrier. West. Un. Tel. Co. v. Fontaine, 58 Ga. 433.

* kind or class of contracts come before the courts, it is both natural and reasonable to try to connect them with some one of the established and recognized classes, for so far as this may be done, new law is not wanted but only the application of old rules to new cases. It is obvious, however, that this effort may be carried too far. We have elsewhere intimated that the endeavor to make the law of partnership but a branch of that of cotenancies or joint tenancy, and to bring transactions in negotiable paper under the common law of contracts, has not been without some mischievous influence. So we think may be, and perhaps has been, the effect to treat a telegraph company as a common carrier. The private carrier makes his contracts under the general law; the common carrier under special rules of law. The essentials of these, as seen in the previous chapter, are, first, that he is considered as a quasi public officer, entering into definite relations with the public, and having on this ground some peculiar rights and some peculiar obligations. It may be admitted at once, that to this extent, telegraph corporations may be classed with common carriers. (b)

Co. 11 Am. L. Jour. 311; West Un. Tel. Co. v. Carew, 16 Mich. 525; Playford v. United K. Tel. Co. L. R. 4 Q. B. 707; Ellis v. Am. Tel. Co. 18 Allen, 226. In this last case it was held that the provisions of the statutes of Massachusetts concerning telegraph companies apply to foreign companies doing business within that State. In Leonard v. New York, etc. Telegraph Co. 41 N. T. 644, Mr. Justice Hunt states with great force the argument against the extension to telegraph companies of the common-law liability of a common carrier.

(b) While the clear weight of judicial opinion is that telegraph companies are not common carriers in the strict sense of the terra, yet on account of the public nature of their employment they have been held in several cases to a very similar degree of responsibility. Thus in Baldwin v. U. 8. Tel. Co. 1 Lansing, 126, the Supreme Court of New York say: "Although telegraph companies are not strictly speaking public carriers for the reason that they do not have tangible possession of goods which can be destroyed or stolen, yet from the public nature of their employment, the important matters confided wholly to their care, and the skill and fidelity required in the proper performance of their duties, their legal characteristics become so analogous to those of carriers that the law must consider them as such, subject only to such modifications as the peculiar nature of their business renders absolutely necessary." And in De Rutte v. N. Y., Alb. & Buf. Tel. Co. 1 Daly, 647, it is said: "Like the business of common carriers, the interests of the public are so largely incorporated with it that it differs from ordinary bailments which parties are at liberty to enter into or not as they please." See also Parks v. Alts. Cal. Tel. Co. 18 Cal. 422; West. Un. Tel. Co. v. Carew, 16 Mich. 626; N. Y. & Wash. Tel. Co. v. Dryburg, 36 Penn. St. R. 298; Graham v. West Un. Tel. Co. 10 Am. Law Reg. (n. a.) 319; Sweatland v. Ill. & Miss. Tel. Co. 17 la. 433. - Two recent cases, however, deny that the obligations of telegraph companies rest upon the public nature of their employment, and assert that they have their foundation solely in the contract between the parties. In Leonard v. N. Y., Alb. & B. Tel. Co. 41 N. Y. 644, the Court of Appeals of New York held that "It must be assumed that the liability of telegraph companies in respect of the accurate transmission and faithful delivery of messages rests entirely upon contract, and that they are not in the situation of innkeepers, common carriers, and the like, upon whom legal duties rest, resulting from their occupation and profession, and who owe a duty to the d

* Another of the obligations of common carriers, is, that d they are bound to treat all the public alike, and to carry all goods or passengers offered to them, unless they have a sufficient reason for making an exception. This is required by many of the statutes by which telegraph companies are regulated. If, however, they are common carriers where the statutes make no such requirement, or where the companies exist without any statutory regulation, they would be bound by the same obligation, and this would then rest on their relation to the public, as is the case with common carriers. This has been so held. (c) We are not able to see (independently of statute requirement) other reason for it than this: They publicly advertise that they will transmit messages; this may be regarded as an offer to the public and to all who compose it, and when any one to whom this offer is made accepts it by tendering a message, the offer and acceptance constitute a contract. This would certainly be analogous to the case of a common carrier, but it would not, we hold, justify the assertion that a telegraph company is a common carrier.

A third element of the law of common carriers is the most important and characteristic of all. It is that which makes them insurers of the goods they carry against any loss not caused by the act of God or of the public enemy, and insurers of passengers against any loss caused by an accident which could have been prevented by any care that was, rationally and practically speaking, possible. This rule, * which, we repeat, is the e most important and characteristic of all the rules which make up the law of common carriers, is, as we shall endeavor in a subsequent section to show, wholly wanting from the law of telegraphic communication.

Then, it must be remembered, that a common carrier carries either goods or passengers; the telegraph carries neither. The common carrier may carry a message, or communication, and may be paid for this. But in this transaction he could not be considered a common carrier, for he is neither bound to take public irrespective of their engagements in particular instances." And in Playford v. United Kingdom Tel. Co. L. R. 4 Q, B. 707, the Court of Queen's Bench say: "The obligation of the company to use due care and skill in the transmission of the message is one arising entirely out of the contract.. . . We cannot agree with the judgments given in the American courts in the cases cited in the argument that there is any analogy between a consignment of goods through a carrier, and the transmission of a telegram." in Ellis v. Am. Tel. Co. 13 Allen, 226, the public nature of their employment was said to rest upon the statute.

(e) De Rutte v. N. Y., Alb. & Buf. Tel. Co. 1 Daly, 647.

♦257 f them, nor if he takes them does he insure them any farther than by his contract. There have been able and ingenious efforts to regard the message as a chattel; as property bailed for transmission. (d) But at most it may be said to have a savor of property, and to be in some respects like a chattel. But in many more respects it is unlike. It is indeed essentially different; and the message cannot be regarded as a chattel although the paper on which it is written - and which is never transmitted - may be. (e) To all these reasons against regarding telegraph companies as common carriers, may be added, what is distinctly asserted in one case, namely, that the mode of transmission makes it impossible for the company to see what happens to its charge, and to guard against threatened danger. (f)