They are bound to have suitable instruments, and competent servants, and to see that the service rendered to applicants is rendered with the care and skill which its peculiar nature requires. (g) 1 This fitness and sufficiency of instruments and apparatus is required by some statutes, and obviously by the nature of their services; but we do not know that it has passed
(d) Scott & Jarnagan on Telegraphs,
(e) Those courts which hold telegraph companies to be common carriers must of course consider the message as a chattel, but we have seen that the number of these is very small. On the other hand, several cases distinguish their responsibilities from those of common carriers by the circumstance that they have nothing in the nature of a chattel intrusted to their keeping. Thus in Leonard v. N. Y., A. & B. Tel. Co. 41 N. Y. 544, the court say: "He has no property intrusted to his care; he has nothing which one can steal, or which can be taken from him. There is no subject of concealment or conspiracy. He has in his possession nothing which in its nature of itself is valuable. It is an idea, a thought, a sentiment, - impalpable, invisible, not the subject of theft or sale, and as property quite destitute of value." So also Baldwin v. U. S. Tel. Co. 1 Lansing, 125; Breese v. U. S. Tel. Co. 46 Barb. 274; 48 N. Y. 132; Ellis v. Am. Tel. Co. 13 Allen, 226; Playford v. Un. Kingdom Tel. Co. Law Rep. 4 Q. B. 707; Birney v. N. Y. & W. Pr. Tel. Co. 18 Md. 341.
(f) Birney v. N. Y. & W. P. Tel. Co. 18 Md. 341.
(g) Graham v. West. Un. Tel. Co. 10 Am. Law Reg. (n. s.) 319; West Un. Tel. Co. v. Carew, 15 Mich. 326.
1 A telegraph company, contracting to deliver market reports, is responsible for a loss occasioned by its failure to furnish correct reports. Turner v. Hawkeye Tel. Co. 41 Ia. 458.
g directly under adjudication, although it is referred to in some cases. (h) In reference to railroads, it has been held to be their duty to avail themselves of any proved and certain improvement. Whatever reasons there may be for this rule would seem to apply to telegraphs. It is obvious, however, that the rule itself would be applied to them only with much qualification. (i) They must receive and send all messages offered them. This is required by many of the statutes. Where not so required, we think they would come under the same obligation, as the effect of their offering themselves to the public, by advertising or otherwise, as undertaking to receive and send messages. The exceptions to this obligation are, that they need not receive messages of an illegal or immoral character; nor such as * subject g them, by their length or interference with their business, to unreasonable inconvenience; or such as cannot be read with reasonable care and certainty. Of course they are excused when the press of business makes it impossible to send all that offer. But in such case, and indeed in all cases, they are bound, generally by statute, and otherwise we think by the nature of their employment, to send them in the order in which they are received, with an exception in some of the statutes, giving priority to government messages; (j) 1 and to treat all who employ them impartially and alike. And they must send the messages with reasonable promptitude. A most important obligation is to send them accurately, that is,
(h) In Sweatland v. Ill. & Miss. Tel. Co. 17 la. 433, the original message read: "Live hogs six, six quarter; dressed six three quarters, seven, firm." As received it read: "Live hogs six three quarters, seven firm." It appeared that after part of the dispatch had been received the instrument began to "splutter," and the remainder of the message was lost. The receiving operator telegraphed back to repeat from "six." The sending operator supposing the last "six " to be meant repeated only from that word, thus omitting the middle of the dispatch. The plaintiff claimed that the trouble was due to the defective character of the recording instrument; the defendants, that it was the result of atmospheric causes which could not be guarded against. As to the former claim the court held that "on general principles the company was bound to employ skilful operators, to exercise due care, and to use good instruments. And on general principles, if it omitted this duty and damage ensued to a party in consequence of such omission, he would have his action therefor." See also West. Un. Tel. Co. v. Carew, 16 Mich. 525; Leonard v. N. Y., etc. Tel. Co. 41 N. Y. 644.
(i) Hegeman v. West. R. R. 16 Barb. 353; 3 Kern. 9.
(j) Scott & Jarnagan on Tel. §§ 128, 129,130.
1 Behm v. West Un. Tel. Co. 8 Bissell, 131, was to the effect that a telegraph company is not bound to forward messages at once, but only in a reasonable time considering the force employed at the forwarding office, the amount of business transacted on the line, and the apparent necessity for haste shown in the message.
•257 h as they are written. It is certain that they have no right to change them in any respect or particular. If it be illegible the operator may refuse it; but if he receives it he must read it as well as he can and send it as he reads it. He must not alter it to extend abridged words, or to improve the grammar or the spelling or amend it in any way. (k) 1 It may be wholly unintelligible by him, and yet be understood by sender and receiver, and made unintelligible by anybody else on purpose.
Secrecy is another obligation, and it is imposed by many statutes, and would be by the confidential nature of the transaction. But it has been decided that telegrams are not privileged communications, and that even where the disclosure of the contents of dispatches by employees of the company were forbidden h by statute, such employees might * be summoned as witnesses in courts of justice, and compelled to produce the dispatches or testify as to their contents. (l)