
    Case 11-1 — ACTION FOR. DAMAGES
    Feb. 27, 1900.
    Western Union Telegraph Co. v. Mathews.
    APPEAL FROM SHELBY CIRCUIT COURT.
    Telegraph Companies — Failure to Deliver Message. — There is mo .obligation on a telegraph company to deliver messages in the country until the charges for a special messenger have been guaranteed.
    RICHARDS, BASKIN & RONALD, P. F. FORE® and GEORG® L. FEARONS FOR THE APPELLANT.
    L. C. WILLIS FOR THE APPELLEE.
    (Briefs and transcript not in the Clerk’s office.)
   CHIEF JUSTICE HAZELRIGG

delivered the opinion of the court.

The telegram, the failure to deliver which promptly, is sought to be made the basis of recovery in this case, was sent during the afternoon of November 12, 1896, from Springfield, Kentucky, to appellee at Shelbyville, Kentucky.

The operator at Shelbyville received it promptly, but ascertained the appellee lived in the country some four and one-half miles, and so notified the agent at Springfield. At about one o’clock on the next afternoon (the 13th) the Shelbyville agent was notified that the charges for delivering in the country were guaranteed, and to deliver by special messenger. There was a failure to do this, under circumstances which conduce to show negligence on the part of the company’s agents. But it is clear there was no obligation on the company to deliver in the country until after a guarantee of charges.

The instructions to the jury are not explicit in this respect, indeed the second instruction imports to the contrary. An instruction offered by tlie appellant on this bebalf (No. 5) should have been given. The error in refusing it was clearly prejudicial. There seems to have been no other error of a substantial character.

Reversed for proceedings consistent with this opinion.  