construction. The elements of impartiality and good faith are not involved in this case, but the defendant in error con⚫ tended that the requirement to transmit with "due dili gence" means to transmit accurately, as well as promptly. We do not think the words quoted can fairly have this interpretation, especially in view of the rule that penal statutes must be construed strictly, and should not be so enforced as to impose a penalty in a case admitting of doubt. We are fortified in our judgment by the fact that the proviso of the first section of the act distinctly declares that nothing in the act "shall be construed as impairing, or in any way modifying, the right of any person to recover damages for any such breach of contract or duty by any telegraph company, and said penalty and said damages may, if the party so elect, be recovered in the same suit." It will thus be seen that, for any damage resulting from mere verbal mistakes or errors, the complete remedy of the party injured is fully guarded and preserved. The penalty may be recovered where the company fails to transmit and deliver a dispatch with that degree of promptness which due diligence requires; and actual damages may be recovered wherever they are caused by the negligent mistakes or errors of the company, irrespective of the question of 613 punctuality. These views, we think, cover, and are in perfect harmony with, the entire scope and purpose of the act, so far as it bears upon the case at bar.

Judgment affirmed.

TELEGRAPH COMPANIES - DAMAGES FOR MISTAKE IN TRANSMISSION OF MESSAGE.-A telegraph company is liable to the sender of a message for the damages sustained by him by reason of its failure to transmit the same correctly: Kemp v. Western Union Tel. Co., 28 Neb. 661; 26 Am. St. Rep. 363, and note. When the receiver of a dispatch suffers loss from the careless and negligent performance of its duty by a telegraph company he may recover damages in tort. In such a case the measure of damages is com pensation for his actual loss, following as the natural consequence of the company's act: Western Union Tel. Co. v. Dubois, 128 Ill. 248; 15 Am. St. Rep. 109, and note; and the same rule is true as regards the sender: Pegram v. Western Union Tel. Co., 100 N. C. 28; 6 Am. St. Rep. 557, and note. See, also, the extended notes to Western Union Tel. Co. v. Blanchard, 45 Am. Rep. 496; Western Union Tel. Co. v. Cooper, 10 Am. St. Rep. 784, and Western Union Tel. Co. v. Hyer, 1 Ain. St. Rep. 229.

STAMEY V. WESTERN UNION TELEGRAPH Co.

[92 GEORGIA, 613.]

TELEGRAPH COMPANIES - PRINTED REGULATIONS LIMITING LIABILITY — BINDING EFFECT OF.-Both the sender of a telegraphic message and the person to whom it is addressed are bound by reasonable regulations printed upon a blank furnished by the telegraph company upon which the message is written and signed by the sender. TELEGRAPH COMPANIES REASONABLE REGULATION LIMITING LIABILITY— NEGLIGENCE OF MESSENGER.-A regulation printed upon the blanks provided by a telegraph company, which provides that "no responsibility regarding messages attaches to this company until the same are. presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company's messengers he acts for that purpose as the agent of the sender," is reasonable, and the company is not liable to the person addressed in such a message if the messenger to whom it is intrusted fails to deliver it to the trausmitting office, and the company fails to transmit and deliver it. TELEGRAPH COMPANIES-LOCAL USAGE TO AVOID EXPRESS CONTRACT.— A local usage concerning telegraph messages inconsistent with an express contract entered into between a telegraph company and the sender of a message at the place where such usage prevails is not a part of such contract, and cannot be given in evidence to contradict or avoid it.

TELEGRAPH COMPANIES-RIGHT TO STIPULATE AGAINST NEGLIGENCE OF MESSENGERS.-A telegraph company may stipulate against liability for the negligence of its messengers in failing to deliver for transmission messages intrusted to them by the patrons of the company. TELEGRAPH COMPANIES.-DELIVERY OF A TELEGRAPHIC MESSAGE to a messenger boy by the sender, without acceptance by the company, is not a delivery to it, and does not fix any liability on the company for failure to transmit and deliver.

J. R. Lamar, for the plaintiff.

J. S. & W. T. Davidson, for the defendant.

614 LUMPKIN, J. The declaration in this case claims damages for the nontransmission and nondelivery of a telegram which it is alleged Gooding & Co., of Charleston, South Carolina, had written on one of the defendant's day telegraphic blanks and handed to a messenger of the defendant, who had just delivered a telegram to them from the plaintiff, to be carried to the office of the defendant in Charleston for transmission to the plaintiff, at the latter's expense, but which message was never in fact delivered by the messenger at the transmitting office of the defendant in Charleston.

The pivotal question is: Was the message delivered to the company for transmission? One of the rules and regulations of the company, printed on the back of the blank upon

the face of which the message was written, was in these terms: "No responsibility regarding messages attaches to this company until the same are presented and accepted at one of its transmitting offices; and if a message is sent to such office by one of the company's messengers, he acts for that purpose as the agent of the sender." Just above the space left for the written message are the following words in large type: "Send the following message subject to the terms on back hereof, which are hereby agreed to." And at the bottom of this space is the following notice, in larger type: "Read the notice and agreement on back." The declaration avers that this rule is not obligatory upon the senders of the message, because it was not read by them or known to them. This position is clearly untenable, for reasonable diligence was all that was necessary to acquaint them with this rule. Therefore, the moment the senders wrote and signed the message on the blank they became, in legal contemplation, aware of the rule, whether they read it or not, and thereby signified "both their knowledge of it and their assent 615 to it": Hill v. Western Union Tel. Co., 85 Ga. 425 (1), 428, 429; 21 Am. St. Rep. 166, and cases cited on the latter page. See, also, Gray on Communication by Telegraph, 52, 53; Scott and Jarnigan on Law of Telegraphs, sec. 149; note to Camp v. Western Union Tel. Co., 71 Am. Dec. 466, beginning on page 461. A telegraph company is not subject to the extraordinary limitations and responsibilities imposed by law on common carriers: Western Union Tel. Co. v. Fontaine, 58 Ga. 433; Western Union Tel. Co. v. Blanchard, 68 Ga. 307, and note to same case in 45 Am. Rep. 487, 488. It therefore has the undoubted power to make reasonable rules and regulations regarding the conduct of its business with the public; and the reasonableness of such rules and regulations is a question for the courts to decide: Gray on Communication by Telegraph, secs. 13, 29; Scott and Jarnigan on Law of Telegraphs, sec. 104; note to Camp v. Western Union Tel. Co., 71 Am. Dec. 466. This being true, is the rule in controversy reasonable? We think it is. The work performed by the messenger in carrying the message from the office or residence of the sender to the transmitting office of the company forms no part of the transmission of the message by the company, for which latter purpose alone the company makes a charge. There is nothing onerous or onesided about the rule. It dictates no terms to the sender, and

gives no advantage to the company. It is neither obligatory nor arbitrary. In a word, it gives the sender the alternative of delivering his dispatch to the messenger, to be delivered by him at the office of the company on the condition prescribed, or of making such delivery either in person or by his own servant. We have been unable to find a direct adjudication upon this rule by any court, and we think this shows, or tends to show, the consensus of public and professional opinion in favor of its reasonableness. The rule is held to be reasonable in the work of Gray on Communication by Telegraph, section 13, top of page 23. Assuming, then, the reasonableness of the 616 rule, it follows, in the absence of other facts to the contrary, that the message was not delivered to the company, because it was not presented at one of its transmitting offices by the agent of the senders, and was not accepted by the company.

Now, is there any fact in this case, not yet mentioned, which should vary the above conclusion? The plaintiff in error alleges in his declaration that a local usage of the defendant at Charleston authorized its messengers delivering telegrams to receive answers for delivery at the company's office for transmission, for which they were paid by the company two cents for each message so received and delivered (i. e. at the company's office), and that such local usage made the messengers the agents of the company to receive messages for transmission, and superseded the above-recited rule or stipulation. Taking into view all the allegations of the declaration, and the blank attached, the answers referred to as being within the operation of this alleged usage were, presumably, written upon the company's blanks similar to the one in question. We cannot accept as correct the plaintiff's position as to the effect of this alleged usage. If the usage was unknown to the senders of the telegram they did not act, and could not have acted on it; and if they had known of such usage, and, nevertheless, entered into a written agreement by which the messenger should act as their agent for the sole purpose of carrying the message to the company's office for transmission, they and the plaintiffs in error were thereby estopped from showing such usage, because custom or usage, while admissible to explain an ambiguous written agreement, is inadmissible if repugnant to or inconsistent with a clear, express agreement: Grinnell v. Western Union Tel. Co., 113 Mass. 299, 307; 18 Am. Rep. 485,

AM. ST. REP., VOL. XLIV.-7

493, and cases there cited. See, also, Park v. Piedmont Ins. Co., 48 Ga. 601, 606; Werner v. Footman, 54 617 Ga. 128, 137; Tilley v. County of Cook, 103 U. S. 155, 162; Moran v. Prather, 23 Wall. 492, 503; and note to Phoenix Ins. Co. v. Munger, 33 Am. St. Rep. 368, citing ample authority, and saying: “A local usage, inconsistent with an express contract made at the place where such usage prevails, or contradicting its terms, is not a part of such contract, and cannot be given in evidence to contradict or avoid it."

There is nothing in the rule under consideration contrary to public policy. Aside from the reasons already given, others in its favor may be stated:

1. Messengers of a telegraph company are not sent out from the company's office to solicit telegrams, and, being engaged in a most subordinate work of the company's service, it is to be presumed that they are not invested by the company with the powers of receiving the company's charges or fees for the transmission of telegrams, and that they have no powers of rejecting telegrams offered to them, either for the nonpayment in advance of the company's charges for transmission, or for being illegibly written, or for containing matter which would make the company liable in tort or otherwise for transmitting an indecent or immoral telegram-all of which are powers reserved by law to the company for its protection, and with which it is known to the public, or should be, the receiving agent of the company at its transmitting offices is invested.

2. The carriage of telegrams from the office or residence of the sender to the transmitting office of the company is not a part of the duty or business of a telegraph company.

3. Neither the sender nor addressee of a message pays any thing for such carriage to the transmitting office of the

company.

4. The liability against which a telegraph company cannot stipulate, as shown by the adjudications of all 618. courts, is confined to its negligence in connection with the transmission of messages from its transmitting offices, and the delivery of such messages to the sendee; and it has evenbeen held, in Clement v. Western Union Tel. Co., 137 Mass. 463, 466, 467, that there are no principles of public policy which should prevent a telegraph company from stipulating against the negligence of its messenger boys as to the delivery of messages to its patrons.