
    Horn v. The Western Union Telegraph Company.
    By the act of October 22d, 1887, telegraph companies are subject to the penalty prescribed for not transmitting dispatches with due diligence, whether the persons to whom they are addressed reside within one mile of the telegraphic station, or within the city or town in which such station is located, or not. The proviso in the second section of the act relates to the duty of delivery, and not to the duty of transmission.
    February 19, 1892.
    Telegraph, companies. Penalties. Before Judge Ross. City court of Macon. March term, 1892.
    Reported in the decision.
    James A. Thomas, for plaintiff. i
    Gustin, Guerry & Hall, for defendant.
   Simmons, Justice.

In this action the sender of the dispatch sought to recover the statutory penalty for failure to transmit with due diligence, and also special damages. The telegraph company admitted its liability for special damages, and confessed judgment therefor, but contended that under the proviso in the second section of the statute (Acts 1887, p. 112), it was exempt from the penalty, because, as was admitted in the agreed statement of facts, the person to whom the dispatch was addressed did not reside within one mile of the telegraphic station, nor in the town where the station was. The case turns upon the construction to be given to this proviso. Is the proviso to be confined to the section of which it forms a part, and which relates merely to delivery, or does it extend to the first section of the act, which relates also to transmission, so as to relieve the company, under the facts above stated, from the penalty for failure to transmit ? The sections referred to are as follows :

Section I, in substance, provides that telegraph companies shall duidng the usual office hours receive dispatches, and on payment or tender of the usual charge, “ shall transmit and deliver the same with impartiality and good faith, and with due diligence, under penalty of one hundred dollars,” and prescribes the manner of its recovery.

Section II is as follows: “ Sec. II. Be it further enacted, that such companies shall deliver all dispatches to the persons to whom the same are addressed, or to their agents, on payment of any charges due for the same; provided, such persons or agents reside within one mile of the telegraphic station or within the city or town in which such station is.”

This proviso in terms applies merely to delivery, and wo cannot by construction extend it so as to apply also to transmission. There is nothing either in the letter or the spirit of the act which would warrant such a construction. The purpose of the proviso was explained in the case of Moore v. Telegraph Co., 87 Ga. 614. The legislature evidently had in view the difficulty or impracticability, in many cases, of prompt delivery to persons residing at a distance from the station, or to strangers with no fixed place of abode in the town or city; and to meet such cases the proviso was adopted. But it is obvious that the reason here given cannot applyv to the transmission of a dispatch from one office of the company to another, where it can be gotten if called for. This. is a duty altogether distinct from, that of delivery outside of the company’s office, and its prompt performance is in no way hindered or affected by the non-residence of the person to whom the dispatch is addressed, or the distance he“resides from the station.

Our attention has been called by counsel for the telegraph company to certain expressions used in the opinion in the Moore case, supra, in which it is said that the act is intended to apply only to that part of the public who reside within the limits stated in the proviso. That opinion, however, deals only with the duty of delivery, the recovery being sought wholly upon the ground of failure to deliver outside of the company’s office; and the language there used must be construed with reference to the case decided. It will be seen, moreover, -that the reasoning of the opinion sustains the conclusion here announced. Judgment reversed.  