it, and he advised Mr. Walker that the thing he had better do was to wire Hall to clarify the message; so they sent a message to Hall, and Hall wired back. The original message has been introduced and marked "exhibit A." The message was not exactly clear to him. The Fort Smith Body Company had previously shipped to the Knapp Motor Company their assemblies No. 10 and assemblies No. 1 in carload lots, and had naturally assumed that they wanted four No. 10 and five No. 1. He testified to the message sent to Hall and as to the receiving of the message from Hall. Upon getting Hall's last telegram, they shipped the goods mentioned therein. The day following the shipment, they received their first notification that there was anything wrong with the shipment. The railroad company had received the car, and it was gone, and there was not anything else to do but to wait. That the shipment was made on August 8, 1923; that between the date of the telegram, July 28th, and the 8th of August, there was no knowledge on his part that there was any error in the telegram. That they relied on the telegram given them by the Western Union Telegraph Company from Hall as stating the goods that the Knapp Motor Company wanted. That they acted on that message and made the shipment. That on August 9th they received a wire from Hall as follows:

"Knapp wires ordered only sixteens and extra cabs, and will not accept balance. Evidently original order misunderstood by me.

"Geo. F. Hall."

At the time of receiving this, the shipment was already on its way. The goods got to Donna, Texas, and they received a notice that the Knapp Motor Company had refused to receive them for the reason that there were more bodies in the car than ordered. That they ordered the extra bodies shipped back to Fort Smith. That the extra freight by reason of the error was $143.06 going, and $151.04 returning. That

they were out $16.71 in telegrams, $13 demurrage. That they were shipped on August 8, and they did not get them back until September 11. Hall was the agent of the Fort Smith Body Company. That the date of his first written communication to the Western Union Telegraph Company about this claim was on October 13th. No written claim had been filed within sixty days, but that he wrote the Western Union Telegraph Company a letter with reference to the claim on October 13, 1923.

A. W. Avery testified that he was shipping clerk for the Fort Smith Body Company and that these bodies were shipped to Donna, Texas, on August 8th.

Plaintiff introduced, over the objection and exception of the defendant, an assignment from the Knapp Motor Company of any interest it might have in the litigation, and also an assignment of George F. Hall of any interest he might have in the litigation. The assignment was in the usual form, assigning to the Fort Smith Body Company the right to bring and maintain a suit, if need be, for any claim that George F. Hall might have against the Western Union Telegraph Company. The same is true of the Knapp assignment.

Hettie M. Salisbury testified for the appellant that she was the manager and operator of the Western Union Telegraph Company at Donna, Texas; that the original message from the Knapp Motor Company to George F. Hall was transmitted from the Donna office on July 27th; that it was a day letter and sent collect; that it was not a repeated message, and that she personally transmitted the message; that the message was exactly as Knapp testified, with the word "your" instead of the word "four" in it; that the message was relayed at Brownsville, Texas, to San Antonio.

Fred Ward testified that he was manager of the Western Union Telegraph Company at Fort Smith;

Knapp Motor Company to George F. Hall."

The court on its own motion gave the following instructions:

"The Burden of Proof.-The court instructs the jury that the burden of proof is on the plaintiff to establish his case by a preponderance of the testimony and on the . . . to prove his case by a preponderance of testimony.

"Preponderance of Evidence.-A preponderance of the evidence means a greater weight of evidence; but this is not to be determined solely by the greater number of witnesses testifying in relation to any particular fact or state of facts. It means that the testimony on the part of the party on whom the burden rests must have greater weight in your estimation, have a more convincing effect than that opposed to it. If, in your opinion, the testimony on any essential point is evenly balanced, then the party on whom the burden rests to prove the same by a preponderance of the evidence must be deemed to have failed in regard thereto."

After the verdict, the defendant filed a motion for a new trial, which was overruled. Defendant saved its exceptions, and has appealed to this court.

Appellant's first contention is that the court erred in refusing to direct a verdict in its favor at the conclusion of all the evidence, first, because the proximate cause of the damage to appellee was the negligence of Hall, its agent, in attempting to interpret an unintelligible message without asking the Knapp Motor Company for confirmation.

Appellant first calls attention to the Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 31 L.R.A. (N.S.) 1020, 133 S. W. 816. That was an action instituted for the recovery of damages for personal injuries sustained by a child twelve years old, and it was caused by the negligent acts of the defendants. The question in that case whether the minor, twelve years of age, was guilty of contributory neg

ligence. The court, however, did not hold that that was a question of law, but it held that it was error for the lower court to give instructions A and B. Instruction No. A given told the jury that, if a person left fire or other instrumentality attractive to children unguarded at a place where children are accustomed to go and play, and a child does go to or near such fire or other dangerous instrumentality attractive to children, and is injured, such child can recover damages from all those concerned in leaving unguarded such fire or other dangerous instrumentality attractive to children. And the court held that the leaving upon the premises of a dangerous object attractive to children does not alone constitute the act of negligence; the act of negligence consists in leaving such object under such circumstances that one of ordinary prudence might reasonably expect that a child too young to appreciate the danger would be allured to and attracted thereby. This instruction did not submit to the jury the question of the contributory negligence. of the child and the court said: "What might be an act of negligence. in leaving such an object or element resulting in attracting thereto a child of a few years of age and too young to appreciate the danger therefrom might not be an act of negligence if it should be reasonably expected that only a child of the age and maturity to fully understand and appreciate the danger from such an object or element should. go near thereto, because it would not be reasonably anticipated that a child of sufficient maturity and intelligence to appreciate the danger from fire would go to and play with this dangerous element."

In other words, it was a question of fact that should have been submitted to the jury whether the negligence of the defendant was the proximate cause of the injury; that is, if it set out fire at a place where children would be attracted, and a child too young to know or appreciate the danger should be burned,

would be the negligence of the Fort Smith Body Company.

Appellant next calls attention to Manly Mfg. Co. v. Western U. Teleg. Co. 105 Ga. 235, 31 S. E. 156. Appellant states that there is no Arkansas case in point, but that this case is in point. But the court in the Manly Mfg. Co. Case submitted the question to the jury, telling them, in substance, that, if they believed from the evidence that the message received by Manly was unintelligible and ambiguous and that a reasonably prudent man would not have acted upon it without having it repeated or telegraphing to the sender, plaintiff could not recover. But that if, on the other hand, they believed that a reasonably prudent man would have acted upon it without having it repeated, plaintiff could recover. The court, in discussing the case, states that it thinks any sort of diligence would have prevented the damage in that case. The court frequently decides cases upholding the verdicts of juries when, if the question were submitted to the court, it might find the other way. The question in the Manly Case was submitted to the jury, and the court did not hold that it should not have been submitted to the jury.

Appellant next calls attention to the case of Western U. Teleg. Co. v. Neill, 57 Tex. 283, 44 Am. Rep. 589. The question in that case whether the company could charge half rate and limit its liability. While the court held that the com

was

pany could limit its liability under the circumstances in that case, it said: "Whether or not telegraph companies should be held as common carriers, with all their common-law liabilities, has been the subject of much discussion and conflicting decisions. . . . If the testimony, however, should show that the failure to properly transmit or deliver a message arose from such misconduct, fraud, or want of due care, then it might be very seriously questioned, indeed, whether the same reasons of public policy which

prohibit exemption from liability on these grounds, would not also prohibit a limitation upon the true amount of damages which should be recovered-telegraphic communication having now become almost a social as well as a commercial necessity, and the want of competing lines giving to the companies greatly the vantage ground over the public."

In Nusbaum v. Western U. Teleg. Co. 42 Phila. Leg. Int. 16, the message involved was insensible, substituting the word "ober" for "obey." As transmitted, it was meaningless. The message involved in the case of Hart v. Direct United States Cable Co. 86 N. Y. 633, was held by the court to be unintelligible jargon. It did not mean anything.

Appellant calls attention to the rule announced in 37 Cyc. 720, and states that, while the rule is that an undisclosed principal of the sender of a message may recover, and since the undisclosed principal of the sender may sue, a person may of course sue where he is the undisclosed principal of both the sender and the sendee, but it is argued that the action cannot be maintained by one who is the undisclosed principal of the addressee alone. Appellant states that this seems to be the almost universal holding of the various courts of the United States. In the volume of Cyc. referred to by appellant, it is stated: "Since the undisclosed principal of the sender may sue, a person may of course sue where he is the undisclosed principal of both the sender and the addressee, but it has been held that the action cannot be maintained by one who is the undisclosed principal of the addressee alone." 37 Cyc. 1722.

From the cases cited to the above section in Cyc., it appears that the authorities are in conflict.

The learned counsel for both the appellant and appellee have cited and discussed many authorities, but it would serve no useful purpose to review them or cite them here. The authorities are in hopeless conflict on most of the questions involved in