Central Law Journal.

ST. LOUIS, MO., FEBRUARY 26, 1897.

The South Carolina Dispensary Law has recently come before the Supreme Court of the United States, with a result unfavorable to that enactment. In Scott v. Donald, 17 S. C. Rep. 265, that court holds, among other things incident to the act in question, that the provisions of that law, forbidding the importation of intoxicating liquors by any one except certain State officers appointed under the act, are invalid, as being a restriction on interstate commerce. In the view of the court the act was not intended to prohibit the manufacture, sale and use of intoxicating liquors. On the contrary, liquors and wines are recognized as commodities which may be lawfully made, bought and sold, and must therefore be deemed to be the subject of foreign and interstate commerce. It was sought to defend the act as an inspection act within the meaning of that provision of the constitution of the United States which permits the States to impose excise duties as far as they may be absolutely necessary for executing their inspection laws. The act does, indeed, contain provisions looking to the ascertainment of the purity of liquors, and to that extent may be said to be in the nature of an inspection law. But those provisions, such as they are, do not, in the view of the court, redeem the act from the charge of being an obstruction and interference with foreign and interstate commerce. In the language of Mr. Justice Shiras, who delivered the opinion of the court, "it is not a law purporting to forbid the importation, manufacture, sale and use of intoxicating liquors as articles detrimental to the welfare of the State and to the health of the inhabitants, and hence it is not within the scope and operation of the act of congress of August, 1890. That law was not intended to confer upon any State the power to discriminate injuriously against the products of other States in articles whose manufacture and use are not forbidden, and which are, therefore, the subjects of legitimate commerce. When that law provided that all fermented, disfilled or intoxicating liquors transported into

any State or territory, remaining therein for use, consumption, sale or storage therein, should, upon arrival in such State or territory, be subject to the operation and effect of the laws of such State or territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or territory, and should not be exempt therefrom by reason of being introduced therein in original packages or otherwise,' evidently equality or uniformity of treatment under State laws was intended. The question whether a given State law is a lawful exercise of the police power is still open, and must remain open, to this court. Such a law may forbid entirely the manufacture and sale of intoxicating liquors, and be valid; or it may provide equal regulations for the inspection and sale of all domestic and imported liquors, and be valid. But the State cannot, under the congressional legislation referred to, establish a system which, in effect, discriminates between interstate and domestic commerce in commodities to make and use which are admitted to be lawful.”

At the time of the enactment of the South Corolina statute, and since, many of the leading authorities upon questions of law contended for its unconstitutionality principally upon the ground that intoxicating liquors being assumed under the terms and spirit of the act to be a lawful subject of commerce, it was an unwarrantable invasion of individual liberty to prohibit citizens from engaging in such commerce. Indeed

Supreme Court of South Carolina so held when the question was first presented to them but this decision was afterwards overruled, the personnel of the court. having changed in the meantime.

Cent. L. J. 355. The reasoning of the United States Supreme Court, in this latest decision on the subject will afford considerable consolation to those who believe in the law's unconstitutionality. Attention has been called to the cases of Re Jacobs, 96 N. Y. 98 and Rippe v. Becker, (Minn.), 57 N. W. Rep. 331, in the former of which the constitutional right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling and to pursue any lawful trade or vocation, was up

held. In the Minnesota case it was held that the police power of a State to regulate a business does not include the power in the State to engage in carrying it on; that the right of a State to erect elevators and itself go into the grain elevator business cannot be predicated on the police power.

NOTES OF RECENT DECISIONS.

EVIDENCE-PROOF OF DIVIDEND OF CORPORATION BY PAROL.-The Supreme Court of Rhode Island, discussing the question of proof of the voting of a dividend by parol in contradiction of the records of the company, say, in Dennis v. Joslyn Mfg. Co., 36 Atl. Rep. 129, that, as a general rule, the best evidence of the votes of a corporation is the recorded action of its stockholders or officers, although they are not conclusive evidence against a stranger, or against the stockholder in an individual transaction between him and the corporation. The court, in trying to prove the unfitness of the rule allowing parol evidence to show the declaration of a dividend, stated that it is no hardship to a stockholder to refuse such evidence, for he has a simple and ample remedy by taking steps to correct the record. First. In the corporation itself, by calling attention to the error that it may be corrected, or where this will not avail, by mandamus to compel the secretary to do his duty as the recorder, or by a bill to correct the record. The court expressed its surprise that no authority for either of these remedies can be found; that no reason can be seen why mandamus should not apply to a case like this, as well as to the numerous cases of failure to perform ministerial duties in which it has been so frequently allowed. Cases of errors in records must often have arisen, and probably the reason why no report of such cases can be found, lies in the fact that ordinarily a majority which has the power to pass a vote also has the power to correct the record, when there is error. "Without intending" (said the court) "to lay down a rule beyond the case before us, we decide, that where, as in the matter of a dividend, members of a corporation have a common interest, and right by virtue of the action taken, the record should show what the corporation did, and in case

of error the remedy should be by a proceeding to correct the record itself, rather than by parol evidence in collateral suits, which would be liable to different results." The court, therefore, disallowed parol evidence to show that a dividend was voted.

- In

INSURANCE WAIVER OF DEFENSE. Early v. Hummelstoun Mut. Fire Ins. Co., 36 Atl. Rep. 195, decided by the Supreme Court of Pennsylvania, it was held, two of the members of the court dissenting, that where, pursuant to conditions in a fire policy that insured sustaining loss should give notice to the company's president, and he should appoint a committee from the managers to appraise it, the committee was appointed, and the company wrote insured: "Our committee *** made you an award of $800. This is now ready, and will be paid you whenever you call for it. If this award is not satisfactory to you, you will come and sign an agreement to an adjustment by disinterested persons, as provided by the policy;" and thereafter they negotiated, without anything being said as to a defense on the merits till after the action, brought nearly six months after the fire,—it is a ques tion for the jury whether a defense of breach of material conditions of the policy, existing at the time of the fire, and known by the company when its committee examined the property, was not waived; the company's letter to insured not being an offer of compromise. The court says:

We think, in this state of the testimony, it was the clear duty of the court below to submit the question of waiver to the jury. This is in accordance with several of our recent decisions. In Fritz v. Insurance Co., 154 Pa. St. 384, 26 Atl. Rep. 7, we held that the fact that a fire insurance company appointed an adjuster to adjust a loss, and that, when an adjustment was made, it was received by the company without objection, is sufficient evidence to submit to the jury on the question whether the company had waived a provision in the policy requiring proof of loss to be furnished within 15 days. In McCormick v. Insur ance Co., 163 Pa. St. 184, 29 Atl. Rep. 747, we held that the refusal of an insurance company to pay a loss on a specified ground estops it from asserting other ground relieving it from liability, of which it had full knowledge where the insured has incurred expense, and brought suit, in the belief that the only objection was that stated. Mr. Chief Justice Sterrett, delivering the opinion, and adopting the language of Mr. Chief Justice Church, of the New York Court of Ap peals, in the case of Brink v. Insurance Co., 80 N. Y. 108, said: "Every consideration of public policy de mands that insurance companies should be required to deal with their customers with entire frankness and fairness. They may refuse to pay without speci

fying any ground, and insist upon any available ground; but when they plant themselves upon a specific defense, and so notify the assured, they should not be permitted to retract after the latter has acted upon their position as announced, and incurred expense in consequence of it." In Freedman v. Association, 168 Pa. St. 249, 32 Atl. Rep. 39, we said: "The trend of our decisions has been to hold insurance companies to good faith and frankness in not concealing the ground of defense, and thus misleading the insured to his disadvantage. They may remain silent, except when it is their duty to speak, and the failure to do so would operate as an estoppel; but, having specified a ground of defense, very slight evidence has been held sufficient to establish a waiver as to other grounds." To the same effect are Gould v. Insurance Co., 134 Pa. St. 570, 19 Atl. Rep. 793; McFar land v. Insurance Co., 134 Pa. St. 590, 19 Atl. Rep. 796; Insurance Co. v. Miller, 120 Pa. St. 504, 14 Atl. Rep. 385; Snowden v. Insurance Co., 122 Pa. St. 502, 16 Atl. Rep. 22; and McGonigle v. Insurance Co., 168 Pa. St. 1, 31 Atl. Rep .868, 875.

CRIMINAL LAW-DYING DECLARATIONS.In Carver v. United States, 17 S. C. Rep. 228, the Supreme Court decided an interesting question of dying declarations, holding that contradictory statements by the deceased at the time of making a dying declaration are competent as tending to impeach the declaration. The court expressly holds that the general rule, requiring for the impeachment of a witness by proof of contradictory statements a foundation to be laid by asking him whether he made such statements, does not extend to cases of dying declarations. The following is from the opinion of Mr. Justice Brown:

There was also error in refusing to permit the defendant to prove by certain witnesses that the deceased, Anna Maledon, made statements to them in apparent contradiction to her dying declaration, and tending to show that defendant did not shoot her intentionally. Whether these statements were admis sible as dying declarations or not is immaterial, since we think they were admissible as tending to impeach the declaration of the deceased, which had already been admitted. A dying declaration by no means imports absolute verity. The history of criminal trials is replete with instances where witnesses, even in the agonies of death, have through malice, misapprehension or weakness of mind, made declarations that were inconsistent with the actual facts; and it would be a great hardship to the defendant, who is deprived of the benefit of a cross-examination, to hold that he could not explain them. Dying declarations are a marked exception to the general rule that hearsay testimony is not admissible, and are received from the necessities of the case, and to prevent an entire failure of justice, as it frequently happens that no other witnesses to the homicide are present. They may, however, be inadmissible by reason of the extreme youth of the declarant (Rex v. Pike, 3 Car. & P. 598), or by reason of any other fact which would make him incompetent as an ordinary witness. They are only received when the court is satisfied that the witness was fully aware of the fact that his recovery

was impossible, and in this particular the requirement of the law is very stringent. They may be contradicted in the same manner as other testimony, and may be discredited by proof that the character of the deceased was bad, or that he did not believe in a future state of rewards or punishment. State v. Elliott, 45 Iowa, 486; Com. v. Cooper, 5 Allen, 495; Goodall v. State, 1 Or. 333; Tracy v. People, 97 Ill. 101; Hill v. State, 64 Miss. 431, 1 South. Rep. 494.

It is true that, in respect to other witnesses, a foundation must be laid for evidenceof contradictory statements by asking the witness whether he has made such statements; and we have held that, where the testimony of a deceased witness given upon a former trial was put in evidence, proof of the death of such witness subsequent to his former examination will not dispense with this necessity. Mattox v. U. S., 156 U. S. 237, 15 Sup. Ct. Rep. 337. That case, however, was put upon the ground that the witness had once been examined and cross-examined upon a former trial. We are not inclined to extend it to the case of a dying declaration, where the defendant has no opportunity by cross-examination to show that by reason of mental or physical weakness, or actual hostil ity felt towards him, the deceased may have been mistaken. Considering the friendly relations which had existed between the defendant and the deceased for a number of years, their apparent attachment for each other, and the alcoholic frenzy under which defendant was apparently laboring at the time, the shooting may possibly not have been with deliberate intent to take the life of the deceased, notwithstanding the threats made by the defendant earlier in the evening. In nearly all the cases in which the question has arisen, evidence of other statements by the deceased inconsistent with his dying declarations has been received. People v. Lawrence, 21 Cal. 368, an opinion by Chief Justice Field, now of this court; State v. Blackburn, 80 N. C. 474; McPherson v. State, 9 Yerg. 279; Hurd v. People, 25 Mich. 405; Battle v. State, 74 Ga. 101; Felder v. State, 23 Tex. App. 447, 5 S. W. Rep. 145; Moore v. State, 12 Ala. 764.

Our attention has been called to but one case to the contrary, viz: Wroe v. State, 20 Ohio St. 460, cited with apparent approval in Mattox Case. But we think, as applied to dying declarations, it is contrary to the weight of authority.

As these declarations are necessarily ex parte, we think the defendant is entitled to the benefit of any advantage he may have lost by the want of an oppor tunity for cross examination. Rex v. Ashton, 2 Lewin, Crown Cas. 147.

RAILROAD COMPANY-FIRES-NEGLIGENCE EVIDENCE.-In Patterson v. Chesapeake & O. R. Co., 26 S. E. Rep. 393, decided by the Supreme Court of Appeals of Virginia, plaintiff having shown that a fire was set by defendant's locomotive, the court held that there is a presumption that defendant was negligent, placing on it the burden of proving that it had used the proper precautions for confining sparks and cinders, disapproving Bernard v. Railroad Co., 85 Va. 792, 8 S. E. Rep. 785. The court says in part:

The defendant insists that the burden was not only on the plaintiff to prove that the fire originated from sparks or cinders thrown out by the engine, but that

such sparks or cinders were emitted by the engine because of defects in its construction or condition, and by reason of the fact that it was not equipped with the best appliances for arresting sparks and preventing the emission of burning cinders. In support of this proposition the case of Bernard v. Railroad Co., 85 Va. 792, 8 S. E. Rep. 785, is cited and relied on. It is true, as a general rule, that where no negligence is proved on the part of the railroad company or any of its agents or employees, and negligence is the gravamen of the action, the law does not impute it. It lies on the party alleging it to prove it. It is, however, equally true that where the subject-matter of the allegation lies peculiarly within the knowledge of one of the parties, the party must prove it, whether it be of an affirmative or negative character. The law on this subject is well stated in 2 Shear. & R. Neg. § 676. It is there said:

"The decided weight of authority and of reason is in favor of holding that, the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used all those precautions for confining sparks or cinders (as the case may be) which have been already mentioned as necessary. This is the common law of England, and the same rule has been followed in New York, Maryland, North Carolina, South Carolina, Tennessee, Illinois, Wisconsin, Missouri, Nebraska, and Texas; and it is established by statute in Vermont, Illinois, Iowa, New Jersey, Minnesota, Kansas, Mississippi, and Utah. But it has been sometimes held that the plaintiff is bound to prove affirmatively some precaution which the defendant ought to have taken, and that it did not take it. This ruling is contrary to the plain principle that a party is not required to prove a fact which is necessarily much better known to his adversary than to himself, since the railroad company has unlimited opportunities for knowing the condition of its own engines, while its prosecutor has none at all, until he comes into court. Accordingly such decisions have been overruled by statute in Iowa and Kansas, leaving Pennsylvania and Ohio to stand alone. In every case it is held that a presumption of negligence is raised by evidence that engines are, in common prac tice, so made as to retain their sparks, and that the particular engine in question did not. And if the particular engine from which the fire proceeded was so made, but it appears that, unless it was watched and kept in order, it would emit sparks, the inference may fairly be drawn that the fire was caused by neg. ligence in its management. On the other hand, evidence that the engine which emitted the sparks had all the best appliances required by the rules previously stated, and was carefully handled, is sufficient to put the burden of proof again upon the plaintiff to show negligence."

It is well settled that testimony is admissible on the part of the plaintiff tending to show that the defendant's locomotive on occasions other than that for which the action is brought had emitted sparks and ' communicated fire to the property along its track and right of way, for the purpose of showing negligence on the part of the defendant's employees, or defects in the construction of the machinery in question. Railroad Co. v. Thomas (recently decided by this court), 24 S. E. Rep. 264. If proof of other fires establishes negligence on the part of the defendant, surely proof that the railroad caused the fire for which the action was brought must do so, the former

being merely cumulative, and intended to show a negligent habit.

The rule laid down by the authorities cited, that, the origin of the fire being fixed upon the railroad company, it is presumptively chargeable with negligence, and must assume the burden of proving that it had used the best precautions known for confining sparks or cinders, is a wise and just one. The law is liberal in holding that the railroad is exempt from liability when, operated in a lawful manner, and in the exercise of reasonable care and skill, it burns the property of the citizen along its route. To hold that the plaintiff, in addition to proving that the railroad is justly chargeable with the origin of the fire, must also, prove affirmatively that its machinery was out of order, would practically defeat a recovery in most The statement of the law as it seems to be laid down in Bernard v. Railroad Co., 85 Va. 792, 8 8. E. Rep. 785, is not in accord with the view herein expressed, and is, therefore, not approved.

cases.

MENTAL ANGUISH IN TELEGRAPH CASES.

In an action against a telegraph company for negligence in the transmission and delivery of a message, is mental suffering alone. though resulting naturally and proximately from the neglect, if unaccompanied by any substantial, pecuniary loss or physical injury. a proper element of damage, provided the message was intended for the benefit of the suitor and the company had knowledge of the nature and importance of its contents? This important question was recently answered in the negative by the Supreme Court of Wis consin.1

Being a new question in that State and with the single exception of Dakota, the first of its kind in the northwest, we may naturally expect the added authority of so important a court to be of considerable weight in the future and a source of gratification to the telegraph company at least. But is the decision well founded upon logic and justice? The facts involved were substantially the fol lowing: A telegram, reading, "Mother is dying. Come immediately," was sent by one brother to another; but, through the fault of the telegraph company, was delayed in delivery some five days, during which time. the mother died and was buried without the knowledge of the plaintiff. Plaintiff claimed that he would have gone to his mother's bedside had he received the telegram in time, and that by reason of the negligence of the company in delivering the message, he was

1 Summerfield v. W. U. T. Co., 57 N. W. Rep. 973,

87 Wis. 1.

2 Russell v. Tel. Co., 3 Dak. 315.

prevented from doing so and from being with his mother in her last moments, in accordance with her dying request. By reason of such negligence, he claimed to have suffered the damages in question. This state of facts is typical of this class of cases in other States.

A Close Question.-That this is a close question, is shown by the able opposition of learned judges and the frequent dissenting opinions on both sides of the case. The question first came up in Texas, in 1880, and has since been grappled with by only about a dozen States, with an equal division of authority, and the inferior federal courts opposed to such damages. The United States Supreme Court has not yet passed upon it. Dakota, Kansas, Missouri, Mississippi, Georgia, Florida, and Ohio, besides Wisconsin, have sided with the federal authorities, while Texas, Indiana, Kentucky, Tennessee, Iowa, North Carolina, Alabama, with possibly Illinois, together with some of the ablest text-writers, are arrayed against them. There can be no controversy as to

3

* Cases for and against damages for mental anguish in telegraph cases: Cases for: So Relle v. Tel. Co., 55 Tex. 308, 40 Am. Rep. 805; The G., C. & S. F. Tel. Co. v. Levy, 59 Tex. 563; Stuart V. Tel. Co., 66 Tex. 580, 59 Am. Rep. 623; G., C. & S. F. Ry. Co. v. Wilson, 69 Tex. 739, 7 8. W. Rep. 653; Tel. Co. v. Brown, 71 Tex. 723, 2 L. R. A. 766, 10 S. W. Rep. 323; Tel. Co. v. Cooper, 71 Tex. 507, 1 L. R. A. 728, 9 S. W. Rep. 598; Tel. Co. v. Broesche, 72 Tex. 654, 13 Am. St. Rep. 843, 10 S. W. Rep. 734; Tel. Co. v. Simpson, 73 Tex. 422, 11 S. W. Rep. 385; Tel. Co. v. Adams, 75 Tex. 531, 6 L. R. A. 844, 12 S. W. Rep.857; Tel. Co. v. Feegles, 75 Tex. 537, 12 S. W. Rep. 860; Rowell v. Tel. Co., 75 Tex. 26, 12 S. W. Rep. 584; Tel. Co. v. Moore, 76 Tex. 66, 18 Am. St. Rep. 25, 12 S. W. Rep. 949; Tel. Co. v. Kirk. patrick, 76 Tex. 217, 18 Am. St. Rep. 37, 13 S. W. Rep. 70; G., C. & S. F. Tel. Co. v. Richardson, 79 Tex. 649, 15 S. W. Rep. 689; Tel. Co. v. Rosentreter, 80 Tex. 407, 16 S. W. Rep. 25; Tel. Co. v. Jones, 81 Tex. 271, 16 S. W. Rep. 1006; Tel. Co. v. Lydon, 82 Tex. 364, 18 8. W. Rep. 701; Tel. Co. v. Houghton, 82 Tex. 561, 15 L. R. A. 129, 17 S. W. Rep. 846; Tel. Co. v. Nations, 82 Tex. 539, 27 Am. St. Rep. 914, 18 S. W. Rep. 709; Potts v. Tel. Co.. 82 Tex. 545, 18 S. W. Rep. 604; Tel. Co. v. Beringer, 84 Tex. 38, 19 S. W. Rep. 336; Tel. Co. v. Wisdom, 85 Tex. 261, 34 Am. St. Rep. 805, 20 S. W. Rep. 56; Tel. Co. v. Carter, 85 Tex. 580, 34 Am. St. Rep. 826, 22 S. W. Rep. 961; Tel. Co. v. Evans, 1 Tex. Civ. App. 297, 21 S. W. Rep. 266; Tel. Co. v. Piner, 1 Tex. Civ. App. 301, 21 S. W. Rep. 315; Wadsworth v. Tel. Co., 86 Tenn. 695, 6 Am. St. Rep. 864, 8 S. W. Rep. 574; Young v. Tel. Co., 107 N. C. 370, 9 L. R. A. 669, 11 S. E. Rep. 1044; Thompson v. Tel. Co., 107 N. C. 449, 12 S. E. Rep. 427; Reese v. Tel. Co., 123 Ind. 294, L. R. A. 583, 24 N. E. Rep. 163; West. Union Tel. Co. v. Cline (Ind.), 35 N. E. Rep. 564; Chapman v. Tel. Co., 90 Ky. 265, 12 Ky. L. R. 265, 13 S. W. Rep.

who may sue, so long as the suitor is the beneficiary of the telegram. If he is the party injured he is a proper plaintiff, whether he had made the contract with the company or not, and whether he sues on contract or in tort.4

An Element of Damage not always a Cause of Action.-At the outset it must be understood that there is a difference between an element of damage and a cause of action. A confusion of these terms has led to a good deal of unsatisfactory and illogical reasoning on the part of courts. Every cause of action is an element of damage, but the reverse is not true. For instance, malice is considered an element of damage; but malice alone will not sustain an action. So say we of mental suffering. It is a well established and inviolable rule of law that, when standing alone, it is insufficient to ground an action upon. upon. But in our opinion it is fully as well settled, that such injuries, if natural and proximate to the wrong, are allowable as an element of damage, whenever an independent cause of action exists. Whether or not this

880; Tel. Co. v. Henderson, 89 Ala. 510, 18 Am. St. Rep. 148, 7 South. Rep. 419; Beasley v. Tel. Co., 39 Fed. Rep. 181; Mentzer v. West. Union Tel. Co. (Iowa), 62 N. W. Rep. 1. See also 24 Weekly Law Bulletin, 22. Cases against: Summerfield v. Tel. Co., 87 Wis. 1, 57 N. W. Rep. 973; Russell v. Tel. Co., 3 Dak. 315, 19 N. W. Rep. 408; Chapman v. Tel. Co., 88 Ga. 763, 17 L. R. A. 430, 15 S. E. Rep. 901, 35 Cent. L. J. 407; Tel. Co. v. Rogers, 68 Miss. 748, 13 L. R. A. 859, 9 South. Rep. 823; West v. Tel. Co., 39 Kan. 93, 7 Am. St. Rep. 530, 17 Pac. Rep. 807; Int. O. Tel. Co. v. Saunders, 32 Fla. 454, 21 L. R. A. 810, 14 South. Rep. 148; Connell v. Tel. Co., 116 Mo. 34, 20 L. R. A. 172, 22 S. W. Rep. 345; Newman v. Western Union Tel. Co., 54 Mo. App. 434; Kester v. Tel. Co., 8 Ohio, C. C. Rep. 236, 55 Fed. Rep. 603; Morton v. West. Union Tel. Co. (Ohio), 41 N. E. Rep. 689; Chase v. Tel. Co., 44 Fed. Rep. 554, 10 L. R. A. 464 (Ga.), 36; Crawson v. Tel. Co., 47 Fed. Rep. 544 (Ark.); Tel. Co. v. Wood, 57 Fed. Rep. 471, 21 L. R. A. 706 (Tex.); Gahan v. Tel. Co., 59 Fed. Rep. 433 (Minn.); Butner v. West. Union Tel. Co. (Okla.), 37 Pac. Rep. 1087; Francis v. West. Union Tel. Co. (Minn.), 59 N. W. Rep. 1078. See also the recent case of Mitchell v. Rochester Ry. Co., 45 N. E. Rep. 354, 44 Cent. L. J. 89, wherein the Court of Appeals of New York hold that damages are not even recoverable for physical injuries resulting from mental shock. See also 3 Suth. on Damages (2d ed.), p. 2180; 1 Sedg. on Damages (8th ed.), § 43-47; 2 Shearm. & Red. on Neg. (4th ed.), § 756; Thomp. on Elec., 378 and cases cited.

4 Who may Sue-Sender or Sendee: Gray, Tel Com. sec. 65; Wharton on Neg. sec. 758; 2 Thomp. on Neg. sec. 11, p. 847; 3 Suth. Dam. sec. 972; Shearm, & Red. on Neg. sec. 560 (3d ed.); Markel v. Tel. Co., 19 Mo. App. 80; Wadsworth v. Tel. Cc., 86 Tenn. 695; Ellis v. Tel. Co., 13 Allen, 227; Tel. Co. v. Dubois, 128 Ill. 248; Tel. Co. v. Hope, 11 Ill. App. 289; West v.