its own lines it cannot perform its contract, the law imposes the duty to notify the sender. . This duty,

however, is not absolute, but arises only when ordinary prudence in the protection of the interests of the party concerned requires it."

A failure to notify the sender of the nondelivery of a message will not warrant the recovery of damages which are merely speculative, and not proximately related to such failure. Cahn v. Western U. Teleg. Co. (1891) 1 C. C. A. 107, 2 U. S. App. 24, 48 Fed. 810; Kagy v. Western U. Teleg. Co. (1906) 37 Ind. App. 73, 117 Am. St. Rep. 278, 76 N. E. 792; Cumberland Teleph. & Teleg. Co. v. Atherton (1905) 122 Ky. 154, 91 S. W. 257; Barnes v. Western U. Teleg. Co. (1897) 24 Nev. 125, 77 Am. St. Rep. 791, 50 Pac. 438, 3 Am. Neg. Rep. 427; Poteet V. Western U. Teleg. Co. (1906) 74 S. C. 491, 55 S. E. 113; Stevenson V. Montreal Teleg. Co. (1859) 16 U. C. Q. B. 530.

Thus, where there was nothing in a message to apprise the telegraph company that it summoned the sender's father, a skilled nurse, to attend the former in a serious illness, and there were no special circumstances to apprise it of such fact, it was held that the failure of the company to notify the sender of the necessity of an additional charge for its delivery beyond the free delivery limits would not entitle him to damages for a special physical injury occasioned by anxiety and mental anguish in consequence of the nonarrival of the sendee. Kagy v. Western U. Teleg. Co. (1906) 37 Ind. App. 73, 117 Am. St. Rep. 278, 76 N. E. 792, wherein the court said: "The damages recoverable must result from the default of the defendant as the proximate cause thereof. They may not be remote, conjectural, or speculative."

II. Delay in transmission. Where it is known to an agent of a telegraph company, or ought to be known to him, that because of defects existing along its line of communication, or for any other cause, there will be delay in transmitting a message, it is the duty of the agent to inform the

sender of the facts in order that he may have an opportunity to accomplish his purpose in some other available manner, and the company is liable in damages for any failure to give such notice.

United States.-Fleischner v. Pacific Postal Teleg. Cable Co. (1893) 55 Fed. 738, affirmed in (1895) 14 C. C. A. 166, 29 U. S. App. 227, 66 Fed. 899; Swan v. Western U. Teleg. Co. (1904) 67 L.R.A. 153, 63 C. C. A. 550, 129 Fed. 318, certiorari denied in (1904) 195 U. S. 628, 49 L. ed. 349, 25 Sup. Ct. Rep. 787; Postal Teleg. Cable Co. v. Nichols (1908) 16 L.R.A. (N.S.) 870, 89 C. C. A. 585, 159 Fed. 643, 14 Ann. Cas. 371; Box v. Postal Teleg. Cable Co. (1908) 28 L.R.A. (N.S.) 566, 91 C. C. A. 172, 165 Fed. 138. Compare Given v. Western U. Teleg. Co. (1885) 24 Fed. 119.

Alabama.-Western U. Teleg. Co. v. Hill (1909) 163 Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1; Western U. Teleg. Co. v. Cleveland (1910) 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534; Western U. Teleg. Co. v. Hicks (1916) 197 Ala. 81, 72 So. 356; Western U. Teleg. Co. v. Sledge (1913) 7 Ala. App. 650, 62 So. 390; Western U. Teleg. Co. v. Holland (1914) 11 Ala. App. 510, 66 So. 926. Compare Western U. Teleg. Co. v. Perry (1911) 3 Ala. App. 247, 56 So. 824.

Arkansas.-Western U. Teleg. Co. v. Harris (1909) 91 Ark. 602, 24 L.R.A. (N.S.) 1283, 121 S. W. 1051; Western U. Teleg. Co. v. Bickerstaff (1911) 100 Ark. 1, 138 S. W. 997, Ann. Cas. 1913B, 242; Western U. Teleg. Co. v. Cowardin (1914) 113 Ark. 160, 168 S. W. 1133.

Georgia. Compare Western U. Teleg. Co. v. Georgia Cotton Co. (1894) 94 Ga. 444, 21 S. E. 835.

Indiana.-Western U. Teleg. Co. v. Bierhaus (1895) 12 Ind. App. 17, 39 N. E. 881, former appeal in (1893) 8 Ind. App. 246, 36 N. E. 161. See also Western U. Teleg. Co. v. Harding (1885) 103 Ind. 505, 3 N. E. 172.

Kentucky.-A. Engelhard & Sons Co. v. Western U. Teleg. Co. (1917) 176 Ky. 806, 197 S. W. 435. Michigan. Compare Western U. Teleg. Co.

Jacob

v.

(1904) 135

Mich. 600, 98 N. W. 402, following Birkett v. Western U. Teleg. Co. (1894) 103 Mich. 361, 33 L.R.A. 404, 50 Am. St. Rep. 374, 61 N. W. 645.

Missouri.-Davis V. Western U. Teleg. Co. (1918) 198 Mo. App. 692, 202 S. W. 292. See also Taylor v. Western U. Teleg. Co. (1914) 181 Mo. App. 288, 168 S. W. 895. Compare Smith v. Western U. Teleg Co. (1894) 57 Mo. App. 259.

North Carolina.-Laudie v. Western U. Teleg. Co. (1900) 126 N. C. 431, 78 Am. St. Rep. 668, 35 S. E. 810; Carswell v. Western U. Teleg. Co. (1910) 154 N. C. 112, 32 L.R.A. (N.S.) 611, 69 S. E. 782; Hoaglin v. Western U. Teleg. Co. (1913) 161 N. C. 390, 77 S. E. 417; Ellison v. Western U. Teleg. Co. (1913) 163 N. C. 5, 79 S. E. 277; Harrison v. Western U. Teleg. Co. (1913) 163 N. C. 18, 79 S. E. 281. See also Cates v. Western U. Teleg. Co. (1909) 151 N. C. 497, 24 L.R.A. (N.S.) 1286, 66 S. E. 592.

South Carolina.-Mackorell Bros. v. Western U. Teleg. Co. (1912) 90 S. C. 498, 73 S. E. 359, rehearing denied in (1912) 90 S. C. 502, 73 S. E. 875; Galloway v. Western U. Teleg. Co. (1915) 101 S. C. 159, 85 S. E. 309. Texas.-Western U. Teleg. Co. v. Bruner (1892) Tex. 19 S. W. 149; Western U. Teleg. Co. v. Hargrove (1896) 14 Tex. Civ. App. 79, 36 S. W. 1077; Western U. Teleg. Co. v. Sorsby (1902) 29 Tex. Civ. App. 345, 69 S. W. 122; Western U. Teleg. Co. v. Birge-Forbes Co. (1902) 29 Tex. Civ. App. 526, 69 S. W. 181; Faubion v. Western U. Teleg. Co. (1904) 36 Tex. Civ. App. 98, 81 S. W. 56; Western U. Teleg. Co. v. Olivarri (1910) - Tex. Civ. App. - 126 S. W. 688; Western U. Teleg. Co. v. Taylor (1914) Tex. Civ. App., 167 S. W. 289. See also Western U. Teleg. Co. v. May (1894) 8 Tex. Civ. App. 176, 27 S. W. 760; Western U. Teleg. Co. v. McDonald (1906) 42 Tex. Civ. App. 229, 95 S. W. 691; Buchanan v. Western U. Teleg. Co. (1907) Tex. Civ. App. —, 100 S. W. 974; Western U. Teleg. Co. v. Erwin (1912) Tex. Civ. App. 147 S. W. 607. Compare Western U. Teleg. Co. v. McMillan (1895) Tex. Civ. App., 30 S. W. 298, following.

Thus, in Postal Teleg. Cable Co. v. Nichols (1908) 16 L.R.A. (N.S.) 870, 89 C. C. A. 585, 159 Fed. 643, 14 Ann. Cas. 369, it appeared that the senders distinctly informed the telegraph company of the importance of the message, and were assured that it would be promptly transmitted and delivered. Shortly after sending the message the telegraph company learned that, due to a break in the line, the transmission of the message would be interrupted. The court, in holding the company liable for the damages sustained by the delay in the transmission of the message said: "With that knowledge on its part, and knowing the importance of the message and that it was essential that it be delivered before noon of the next day in order to be of any avail to the senders, we have no hesitation in holding it to have been gross neglect on its part, against which it could not contract, not to notify the senders of the break in the line, and the consequent interruption in the transmission of the message, that they might have protected themselves by communicating directly with the War Department at Washington."

So, in the case of A. Engelhard & Sons Co. v. Western U. Teleg. Co. (1917) 176 Ky. 806, 197 S. W. 435, under similar facts, the court said: "If a telegraph company's line is out of order or not working, and, knowing this fact, it accepts a message for transmission over its line without notifying the sender of the condition of the line, it assumes responsibility for loss occasioned by the delay. If the wires are out of order or not working, and for this reason it cannot send with its usual promptness a message, it must, if it desires to be excused for its failure to promptly transmit it, notify the sender; and if it fails to notify him, or informs him that his message will be promptly sent, it will be responsible for its failure to do so,

although such failure may be due to causes beyond its control."

Likewise, in Western U. Teleg. Co. v. Bickerstaff (1911) 100 Ark. 1, 138 S. W. 997, Ann. Cas. 1913B, 242, it was said: "A telegraph company cannot rely upon the defense that it could not transmit a message on account of trouble with its wires, even though caused through no fault of its own, if the existence of the trouble was known to it when it accepted the message, and it failed to inform the sender of its inability to transmit it promptly on that account."

The foregoing rule has been said to be particularly applicable where the agent is put on notice of the importance of the message, by its wording. Western U. Teleg. Co. v. Holland (1914) 11 Ala. App. 510, 66 So. 926; Western U. Teleg. Co. v. Hicks (1916) 197 Ala. 81, 72 So. 356.

So, notices posted in the company's office that its line is down, that it is behind in its business, and that all messages will be delayed in transmission, are not sufficient to charge the sender with knowledge of these facts. Western U. Teleg. Co. v. BirgeForbes Co. (1902) 29 Tex. Civ. App. 526, 69 S. W. 181.

And where a connecting line, over which a message must be sent, notifies the transmitting office of its inability to send the message because of trouble on its lines, it is the clear duty of the transmitting office, as agent of the sender, to advise its principal of that fact. Western U. Teleg. Co. v. Sorsby (1902) 29 Tex. Civ. App. 345, 69 S. W. 122.

So, in Hoaglin v. Western U. Teleg. Co. (1913) 161 N. C. 390, 77 S. E. 417, it was held that where, because of the wires being down, a message could not be forwarded at once, it was the duty of the relaying operator to send a service message to the sending operator, so that he could notify the sender of the delay.

A contract exempting the company from liability for damages resulting from its failure to transmit a message, if such failure is occasioned by unavoidable interruption in the working of its lines, does not cover such inter17 A.L.R.-8.

ruptions as exist at the time of the receipt of the message, and of which the sender is not informed. Western U. Teleg. Co. v. Birge-Forbes Co. (Tex.) supra.

Under a Missouri statute, it is the duty of the servants of a telegraph company, if the telegraph lines are out of order so that a message cannot be transmitted, to inform persons desiring to transmit messages of that fact, and a penalty is provided for a failure to do so. In an action under the statute for failure to transmit a message promptly, it has been held that it was no defense that the wires were down as the result of a storm, since the statute required the telegraph company to inform the plaintiff of that fact when he delivered the message to be transmitted. Davis v. Western U. Teleg. Co. (1918) 198 Mo. App. 692, 202 S. W. 292. But in a case under an earlier statute it was held that where the agent does not and cannot know that the line is not in working order, the statutory duty to inform the applicant of the company's inability to send the message is not imposed. Smith v. Western U. Teleg. Co. (1894) 57 Mo. App. 259.

But in Jacob v. Western U. Teleg. Co. (1904) 135 Mich. 600, 98 N. W. 402, wherein it appeared that a message was sent via a relay office, and was there delayed because the wires were down, the transmitting operator having no knowledge of such delay or its cause, it was held that the operator, in the absence of instructions to repeat, was not required to notify the sender that the message was delayed.

So, in Stevenson v. Montreal Teleg. Co. (1859) 16 U. C. Q. B. 530, Burns, J., said that the defendant was not obliged to inform the sender that the line was out of order when the message was received, suggesting that it was more reasonable to place on persons desiring to have messages transmitted the burden of inquiring whether a message could be sent promptly.

Where a telegraph agent accepts a message for transmission to an office which he knows, or ought to know, will be closed before the telegram

arrives, and fails to notify the sender of this fact with the consequent delay in delivery, the company may be held responsible. Western U. Teleg. Co. v. Hill (1909) 163 Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1; Western U. Teleg. Co. v. Cleveland (1910) 169 Ala. 131, 53 So. 80, Ann. Cas. 1912B, 534; Western U. Teleg. Co. v. Sledge (1913) 7 Ala. App. 650, 62 So. 390; Western U. Teleg. Co. v. Harris (1909) 91 Ark. 602, 24 L.R.A. (N.S.) 1283, 121 S. W. 1051; Western U. Teleg. Co. v. Cowardin (1914) 113 Ark. 160, 168 S. W. 1133; Carswell v. Western U. Teleg. Co. (1910) 154 N. C. 112, 32 L.R.A. (N.S.) 611, 69 S. E. 782; Mackorell Bros. v. Western U. Teleg. Co. (1912) 90 S. C. 498, 73 S. E. 359, rehearing denied in (1912) 90 S. C. 502, 73 S. E. 875; Western U. Teleg. Co. v. Bruner (1892) Tex. 19 S. W. 149; Western U. Teleg. Co. v. Taylor (1914) Tex. Civ. App. 167 S. W. 289. See also Western U. Teleg. Co. v. Hicks (1916) 197 Ala. 81, 72 So. 356; Cates v. Western U. Teleg. Co. (1909) 151 N. C. 497, 24 L.R.A. (N.S.) 1286, 66 S. E. 592; Western U. Teleg. Co. v. Hargrove (1896) 14 Tex. Civ. App. 79, 36 S. W. 1077. Compare Given v. Western U. Teleg. Co. (1885) 24 Fed. 119; Western U. Teleg. Co. v. Perry (1912) 3 Ala. App. 247, 56 So. 824; Western U. Teleg. Co. v. Georgia Cotton Co. (1894) 94 Ga. 444, 21 S. E. 835; Western U. Teleg. Co. v. Neel (1894) 86 Tex. 368, 40 Am. St. Rep. 847, 25 S. W. 15; Western U. Teleg. Co. v. McMillan, Tex. Civ. App. 30 S. W. 298; Western U. Teleg. Co. v. May (1894) 8 Tex. Civ. App. 176, 27 S. W. 760.

The rule was fully and clearly stated in Western U. Teleg. Co. v. Harris (1909) 91 Ark. 602, 24 L.R.A. (N.S.) 1283, 121 S. W. 1051, supra, as follows: "The defendant's agent, when he received the message, knew or should have known that the message would not be promptly delivered on account of the fact that the receiving office was closed during the hours of the night. The message was filed for immediate transmission and delivery, and its urgency and importance ap

peared on its face. The sender had the right to assume that, as the message was received by the company for immediate transmission, if there existed any reasons why it could not be promptly delivered, information thereof would be then given so that other means could be adopted. The agent of the company had no right to assume that the sender of so urgent a message knew of the necessary delay incident to awaiting the opening of the receiving office the next day, and he therefore was not justified in withholding or failing to give information that there would necessarily be considerable delay in sending the message. The rule is, we think, well established by the authorities that if a telegraph company is unable, through a disarrangement of its lines or other cause, to do what it makes a business of doing, it must inform those who wish to employ it of the fact, and thus acquaint them with the advantage of employing other means.' . . . This principle, we think, demands that where the company's transmitting agent knows, or, under the circumstances, should know, that on account of the closure of the receiving office there will be delay in delivering an urgent message which is intended for immediate delivery, it is incumbent on him to so inform the sender; and if he fails to do so, the company is liable for damages resulting from such neglect."

In Western U. Teleg. Co. v. Bruner (1892) Tex. -, 19 S. W. 149, it was held that a telegraph company is bound to receive and transmit all messages, and that, though it may make reasonable rules and regulations in the conduct of its business, yet if the company is not prepared to send the message when it is received, on account of the terminal office being closed at night, its agent should so inform the sender.

So, in Carswell v. Western U. Teleg. Co. (1910) 154 N. C. 112, 32 L.R.A. (N.S.) 611, 69 S. E. 782, which was an action for delay in transmitting a telegram summoning a physician to the bedside of his sick wife, it was hela that a failure to notify the sender that

the terminal office would probably be closed amounted to a waiver of the regulations regarding office hours. In that case it was said: "If the sender had been notified that the message could not be delivered, he could have communicated with Dr. Brookshire in some other way, as he afterwards did, and prevented the mental anxiety he suffered from the delay caused by the defendant's negligence in failing to notify him. The plaintiff had the right to suppose that his message had been delivered, if the defendant performed its duty, and it was negligence not to inform him of the true situation."

In Western U. Teleg. Co. v. Hill (1909) 163 Ala. 18, 23 L.R.A. (N.S.) 648, 50 So. 248, 19 Ann. Cas. 1058, 21 Am. Neg. Rep. 1, it was said: "A telegraph company has a right to adopt rules as to office hours, and have reasonable rules for its own protection; but it also has a right to waive them, and does waive them as to office hours when it accepts a message for transmission and delivery without the office hours, without informing the sender of such rules, or without explaining to him that it would not be transmitted or delivered until the time."

Similarly, where a message was to be telephoned to the sendee from the receiving office, and the initial operator knew this, and knew that the telephone exchange would be closed on Sunday, when the message would arrive, it was held to be actionable negligence to fail to notify the sender of the probable delay. Western U. Teleg. Co. v. Hicks (1916) 197 Ala. 81, 72 So. 356.

Where a telegraph company, through mistake of its agent, received a message to be delivered at a place where it had no office, it was held that the agent should have informed the sender that it had no office at the place addressed; that the fact that the agent did not know the sender, or where to find her, was no excuse for the company's failure to perform its contract; that it was the agent's duty to obtain from the person sending the message the necessary information to enable the company to perform its

duty; and that the failure to do so was culpable negligence. Western U. Teleg. Co. v. Hargrove (1896) 14 Tex. Civ. App. 79, 36 S. W. 1077.

But if the agent has no knowledge, and is not chargeable with knowledge, as to whether the receiving office is open during the night for the delivery of messages, the mere receiving of a message does not amount to a waiver of the rights of the company to show its office hours, and where the agent informs the sender, at the time the message is given, that he does not know whether the terminal office is a night office or not, the company does all that is required of it, and cannot be held liable for delay in transmission of the telegram. Western U. Teleg. Co. v. Perry (1912) 3 Ala. App. 247, 56 So. 824.

So, in Given v. Western U. Teleg. Co. (1885) 24 Fed. 119, it was held that a telegraph company, having offices scattered all over the country, was not required to keep its various agencies informed of the business hours of every other office.

And in Western U. Teleg. Co. v. Georgia Cotton Co. (1894) 94 Ga. 444, 21 S. E. 835, it was held that in the absence of a special contract to transmit immediately, or of an express request for information, it is not obligatory on a telegraph company to acquaint a customer with the office hours of the company at the point to which a message delivered by him is directed.

So, in Western U. Teleg. Co. v. Neel (1894) 86 Tex. 368, 40 Am. St. Rep. 847, 25 S. W. 15, it was held that a telegraph company had the right to maintain reasonable office hours, and was not obliged to deliver messages outside of such hours, and that such regulations were binding on the sender regardless of whether he had notice of the office hours. The court said: "The reasonableness of a regulation as to hours of business is sufficiently obvious to suggest to the sender of a message who desires its delivery at an unusually early hour for business, the propriety of making inquiry before he enters into the contract." That case was followed in Western U. Teleg. Co.