Putnam's Handy Law Book for the Layman

by Albert Sidney Bolles

A strike may be a sufficient excuse for failure to have sent messages promptly, though not excusing a railroad company for failure to deliver freight as if no strike had happened. A state may impose a penalty on a telegraph company for failure to deliver promptly in the state messages coming from other states. And a state may impose a penalty on a telegraph company for failure to perform its clear common law duty to transmit messages without unreasonable delay, and this statute applies to messages to points outside the state if it relates to delay within the state. A state statute prohibiting telegraph companies from limiting their liability for the transmission of telegrams within the state is constitutional. The state may prohibit a telegraph company from transmitting racetrack news. A telegraph company must transmit a message unless it contains indecent language. Nor is it liable for libel in transmitting a telegram stating that a person had been bought up.

It is reasonable for a telegraph company to close its office on holidays, except two hours in the morning and two hours in the afternoon, and therefore is not liable for delay in transmitting a message because of this delay. The unauthorized writing out and sending of a telegram in another person's name is a forgery.

When a telegram must pass over two connecting lines the receiving company may require the sender to designate what route the message is to take, and to pay an extra charge for the words indicating such route. A telegraph company is not privileged in transmitting messages, but they should not be made public, except to produce them when legally required in court. Under the New York statutes it is a criminal offense for a telegraph employee to divulge the contents of a telegram to any other person than the addressee, except when it relates to unlawful business. In that case the employee may give information to the public officer who is prosecuting the unlawful sender. It is a criminal offense to open or read a sealed telegram, or to tap a telegraph wire in order to read messages in course of transmission.

In regulating the receipt, transmission and delivery of telegraph messages, the rules differ from those that are to be transmitted within the state from the rules for interstate messages. The rules with respect to the latter are governed by the Interstate Commerce Act of 1910, state messages are governed by the laws of their respective states. By the federal law, therefore, a telegraph company providing one rate for unrepeated messages, and another and higher rate for those repeated, may stipulate for a reasonable limitation of its responsibility when the lower rate is paid. And if the contract provides that for any damage resulting from sending the telegram, the sender must give notice within sixty days, he is bound by this stipulation, and is without redress if he delays to act beyond the time.

Torts or Wrongs.—"A tort is an act or omission which unlawfully violates a person's right created by the law, and for which the appropriate remedy is a common law action for damages by the injured person." The right that is violated is private and not public, which marks off a tort from a crime. Again, the wrongful act may be a violation of both a private and public right, in which case both the individual and the state have a remedy against the wrongdoer. Thus A without excuse attacks B and bruises his nose. B has an action to recover damages against him for despoiling his countenance; the state also may proceed against him in a criminal action for his breach of the public peace. Another illustration may be given. A clerk embezzles money from his bank. It sues him and perhaps his bondsmen and recovers the money. Embezzlement, however, is a criminal offense, and the recovery of the money taken does not affect in any way the right of the state to proceed against the embezzler. Indeed, an individual who has been wronged cannot by any restitution or settlement that he may make with the wrongdoer impair the right of the state to punish him.

Torts or wrongs are very numerous for which the wrongdoer may be held liable. The first to be mentioned is false imprisonment. The law punishes false imprisonment as a crime; the person unlawfully imprisoned also has a civil action for damages. A person is said to be imprisoned "in any case where he is arrested by force and against his will, although it be on the high street or elsewhere and not in a house." Mere words are not an arrest. If an officer says, "I arrest you," and you run away, there is no arrest. But if an officer touches you and takes you into custody there is an arrest even though you run away afterward.

A malicious prosecution is another wrong. A person who brings his action for this wrong must prove four things: first, that the prosecution has terminated in the complainant's favor; second, that it was instituted maliciously; third, that it was brought without probable cause; fourth, that it damaged or injured the complainant. The term malice means something more than "the intentional doing of a wrongful act to the injury of another without legal excuse." It means that the original prosecutor was actuated by some "improper or sinister motive." The term "probable cause" requires explanation. Nothing is better settled, says one of the courts, than this, that when the person who brings such an action against another "submits his facts to his attorney, who advises they are sufficient, and he acts thereon in good faith, such advice is a defense to an action for malicious prosecution." That such advice may be a good defense a full and honest disclosure of all the facts must be made to him. Such advice will not serve as a screen if based on a fragmentary, incomplete statement of facts.

A very common tort is an assault and battery. A person who threatens another with immediate personal violence, having the means and opportunity for executing the threat, commits an assault for which damages may be recovered in a proper action. To raise a club over the head of another and threaten to strike if he speaks, would be an assault. "Absence of intent," says Burdick, "on the part of the defendant to put the plaintiff in fear of bodily harm, is pertinent to the defense that the injury was accidental, or due to a practical joke."

A battery, as distinguished from an assault, is the inflicting of actual violence on a person, though the degree of violence is immaterial. The least touching of another in anger, or as a trespasser, is a battery. Forcibly cutting the hair of a person without legal authority, or injuring the clothing on a person, or snatching an article from his hand, or cutting a rope or belt attached to him, or striking a horse on which one is riding, or that is attached to his carriage, or overturning a chair in which he is seated, is a battery; likewise, if the assailant throws a stone or missile which hits the other, or spits in his face.

There may be a justifiable assault, the law has long recognized this. A public officer is justified in using force in performing his duty, so is a private individual in defending himself, his family or his property, or in enforcing lawful discipline at home, in school, on board a ship, or other public conveyance, or in restraining one mentally or physically incapacitated.