626); Muldowney v. P. B. Traction Co., 8 Pa. Sup. Ct. 335. The court below was right in directing a verdict, and its judgment is Affirmed. All the Justices concur.2 SHEPARD v. THE MILWAUKEE GAS LIGHT CO. SMITH, J. . . The only reason urged for refusing to furnish the gas to the plaintiff was, that he refused to sign the regulations adopted by the company. This leads us to examine those regulations, and to determine whether or not they were such as the company could rightfully require the plaintiff to subscribe to, as a condition precedent to his right to demand the gas. We shall not attempt to discuss all of these regulations, separately, though we are requested so to do; but shall only point out some of them which we think are unreasonable, and which the company had no right to impose. But before doing so, we wish to be distinctly understood, that in our opinion, they have a right to make all such needful rules and regulations for their own and the convenience and security of the public, as are reasonable and just, and to exact a promise of conformity thereto. But these rules and regulations must be reasonable, just, lawful, not capricious, arbitrary, oppressive or unreasonable. Were it not so, the whole 'net work of pipes and machinery would be at the mercy of the careless, the fraudulent or the malignant. From the nature of the article produced and used, as well as from the manner of its use, great care is requisite in its management, and there is a 2 See Barker v. R. R. Co. (1896), 151 N. Y. 237; Knoxville Traction Co. v. Wilkerson (1906), 117 Tenn. 482; Barrett v. Market St. Ry. Co. (1889), 81 Calif. 296; Note, 19 Yale L. Jour. 457. Compare Dale v. Western Un. Tel. Co. (N. Y., 1918), 181 App. Div. 292 (reported in the court below in 100 Misc. 718). 1 The statement of facts, arguments of counsel and part of the opinion are omitted.- ED. kind of implied duty or obligation resting upon those who use the gas, to use it in such a manner as not to injure or endanger others who use it. Hence we see no objection to a rule or regulation of the company requiring application for gas to be made in writing, and requiring the applicant to sign reasonable regulations. The 3rd rule of the company, allowing the company to demand security for the gas consumed, or a deposit of money to secure payment thereof, appears to be just and necessary to guard against loss. As the delivery of the gas is necessarily its consumption, and as the amount delivered is ascertained by the amount consumed, it would seem to be just and right that the company should not be compelled to furnish it without reasonable security for payment, in convenient amounts and at proper periods. The 9th rule is also objected to as illegal. This authorizes the company, by their inspector, to have free access at all times to buildings and dwellings, to examine the whole apparatus and for the removal of the meter and service pipe. The gas apparatus in the buildings, stores and dwellings, is the property of the individual, put up at his own expense, in which the company have no interest. It may be proper for the company to have the right of inspecting the gas apparatus to determine its sufficiency and safety and, at stated periods, to inspect the same, or perhaps oftener, upon reasonable notice therefor. But certainly it cannot be necessary that the dwellings of gas consumers should be subject to instantaneous visitation at all times without notice. Nor is it to be conceded that the company should have the right, at all times, to enter the premises and remove the service and meter at their pleasure. This regulation is too general and cannot be upheld, or at least a party cannot be required to subscribe to it to entitle him to be furnished with gas. Another regulation (14) reserves to the company the right at any time to cut off communication of the service pipe, if they shall find it necessary so to do, to protect the works against abuse or fraud. Here the company assume the whole power to decide upon the question of abuse or fraud, either in fact or in anticipation, without notice, without trial, of their own mere motion. This sum mary jurisdiction would not be given to any of the judicial courts Keld; in any case, but upon the most urgent emergency. Much less could it have been the intention to confer such power upon one of the parties to a contract of such vital importance. It is no hardship for the company to resort to the same tribunals, upon like process, for protection against fraud, as the law provides for individuals. Rule 16 provides, that after the admission of gas into the fittings, they must not be disconnected or opened, either for alteration or repairs, or extensions, without a permit from the company, which may be obtained at their office, free of expense; and any gas fitter or other person, who may violate this regulation, will be held liable to pay treble the amount of damages occasioned thereby. It is not to be allowed that the gas company can impose penalties in this way, or make the submission to such penalties a condition precedent to the right of the citizen to be furnished with gas. It is singular, if the legislature has given to the gas company the right to inhibit the citizen from altering the arrangement of his gas apparatus in his dwelling without their assent first had and obtained, or from extending the same; and still more singular that the company should claim the sovereign right to inflict penalties upon him for doing so, and not him only, but upon any other person who should act in the matter without their consent. The statement of this proposition is its answer. Rule 17 provides, that the company shall have the right to substitute alcohol for water in the meters, and charge therefor. All that is necessary to observe upon this regulation, is, that the company are entitled to charge for the gas consumed, and that some accurate mode of measurement must be used, whether of alcohol or water. The consumer must pay the legal rates for the quantity consumed; and the mode of measurement, whatever it is, must be correct. Rule 21 assumes for the company the power to make any other rules or regulations, from time to time, under which the gas company will furnish private consumers, as experience shall suggest, &c. What we have said before as to the power of the company to prescribe reasonable rules and regulations, is a sufficient answer to the question raised, or which may be raised thereon. It is not necessary to go farther. Indeed we might have stopped much earlier, and would have done so, but for what we understood to be the desire of the parties for a full examination of all the questions involved in this action. Without recapitulation, we have no doubt that the judgment of the county court was right, and that the judgment ought to be, and it is affirmed, with costs.2 2 See Shiras v. Ewing (1892), 48 Kan. 170; Watauga Water Co. v. Wolfe (1897), 99 Tenn. 429. WESTERN UNION TELEGRAPH CO. v. TROTTER. 55 Ill. App. 659. 1894. MR. PRESIDING JUSTICE WALL delivered the opinion of the Court. Appellee recovered a judgment against appellant for $134.09-for failing to deliver a telegram addressed to him by a commission firm in Chicago. Appellee was a farmer, residing a mile and a quarter from the village of Kansas. Having some marketable cattle which he wished to sell he wrote to the commission firm for information and they sent him the telegram in question. They did not know whether he lived in the village or what arrangements he might have made for having a telegram delivered to him and paid merely for its transmission to Kansas. The operator did not know the appellee but made effort to find him within the village and failed to do so. He learned, however, where he lived, and it being beyond the free delivery limits, did nothing further. The appellant having heard in some indirect way that there was a telegram for him, called at the office and received it. In the meantime, not having heard from this commission firm, he had sent his cattle to another firm. The claim is that if he had received the telegram promptly he would have sent the cattle in response thereto by the first train and would have realized a higher price than that received. The verdict represents the alleged difference. The telegram was received at Kansas at 1:10 P. M., July 5, 1892. It did not reach the hands of appellee until the 9th. P هستند It appears that by a rule of the company the free delivery limit outride. for a town of less than 5,000 inhabitants was one-half mile from this limit. the office. It is urged on the one side that this is a reasonable rule and that it should be enforced, and on the other that whether reasonable or not it does not appear that the sender or the appellee knew of it, and so it is not binding on either. The rule is reasonable, and not only so, but it is a matter of common knowledge among business men that there is always a limit for the free delivery of messages. The trouble here was that the appellee did not expect a reply by wire. He went to the post office daily, but as he had not instructed the commission men to telegraph him it did not occur to him that they would, and they not knowing that he lived beyond the limit, made no arrangement with the company for delivery of the message. Hence it was bound to do no more than it was paid for, that is, transmit the message to the designated office and there make reasonable effort to deliver it within the free limit. It is argued that the agent should have known from its terms, that it was a message of importance, but this did not require him to go beyond the limits of free delivery. If he inferred that the message was of unusual importance, he must also have inferred that the appellee was expecting it, and not living within the limits, would call for it. At any rate, such a conclusion on his part would have been reasonable. We are of the opinion that the case shown by the proof did not justify the judgment, which will therefore be reversed and the cause remanded.1 CAMPBELL v. WESTERN UNION TELEGRAPH CO. 74 S. C. 300. 1906.1 On duty of Co. to MR. JUSTICE GARY. This is an action for damages for failure to deliver a telegram within a reasonable time. delines beyond The next question for consideration is, whether the Circuit free deling Judge was in error, in ruling that when a person to whom a meslimits sage is addressed, resides within a reasonable distance from the company's office, though not within the free delivery limits, it cannot refuse to deliver the telegram, unless it demands additional compensation from the sender, and he declines to pay it. In other words, that it is the duty of the defendant to notify the sender, it would not deliver the message, unless he made additional compensation for the service beyond the free delivery limits. The defendant is a common carrier in its line of business (sec. 3, art. IX., of the Constitution), and the law imposes upon it the duty of delivering all messages, when the persons to whom they are addressed reside within a reasonable distance from the terminal office. The company, however, has the right to make reasonable regulations as to free delivery limits, and as to additional charges for services rendered beyond such limits. In the case of Hood v. Tel. Co., 47 S. E. R. (N. C.), 607, the Court ruled that a telegraph company failing to make any attempt to deliver a message, because the person to whom it was addressed resided beyond the free delivery limits, and, also, failing to notify the sender, or of its refusal to deliver, is liable in damages resulting from its negligence in not making the delivery. 1 Compare Bullard v. American Exp. Co., supra, p. 119. 1 Part of the opinion is omitted.- ED. |