Telephone Co. v. Swoveland. enforce such a regulation, and that the same is reasonable, and not against public policy, we do not think the complaint proceeds upon the theory that the appellant failed to deliver a message, but on the theory that appellant failed to notify Dr. Rhine, at Hartford City, that his presence was desired at the telephone. There are two kinds of telephone service which the appellant has undertaken to perform for the public. One is accomplished by means of instruments placed in the residences or places of business of the patrons for their private and personal enjoyment and benefit, and it needs no agent or messenger to carry such service into execution except the operator of the central office. These instru ments are furnished by the company in consideration of a fixed periodical rental, paid by the patron. The other is what is denominated toll service, and is rendered by placing at the disposal of the patron at the transmitting station, and the one at the receiving station, instruments connected by electric wires, by means of which the two are enabled to carry on a conversation. To render the latter service effective, it is necessary, of course, that there should be some one at the receiving station ready to notify the person with whom it is desired by the patron at the transmitting station to converse, unless such person should himself be in possession of a telephone instrument at his residence or place of business which is connected with the main line. The person who is usually sent to look up the party wanted at the instrument is called a messenger, and is generally, if not universally, supplied by the telephone company; for, if the patron who desires to be placed in communication with the party at the receiving station were himself required to send out and have such party brought to the station and to the instrument, the service would be practically worthless to him. Hence, we take it that it was a part of the duty of the appellant, if Dr. Rhine resided within a reasonable distance Telephone Co. v. Swoveland. from the station at Hartford City, to send a messenger to him, and inform him that he was wanted at the telephone. We are, therefore, of opinion that the person to whom was intrusted the duty of notifying Dr. Rhine that there was a call for him at the telephone was the agent of the appellant, and not of the appellee, and that, within reasonable limits, the appellant is responsible for his acts and omissions, the same as a telegraph company would be for the conduct of its messenger to whom it had intrusted the delivery of a telegram. If, therefore, the appellant had undertaken, by its rules and regulations, to exempt itself from liability for the conduct of such messenger, by providing that the latter should be regarded as the agent of the patron desired to be placed in communication with the patron at the receiving station, such a rule or regulation would be in violation of the duty the appellant owes to the public, and would be void. But we do not interpret the rule promulgated by the company, and relied upon here, as an attempt to escape liability for messenger service in proper cases, but as a provision that it will not undertake to transmit and deliver verbal messages beyond its telephone stations, which is quite a different matter. The gravamen of the complaint here, however, is not the failure to deliver a verbal message, but the failure to bring Dr. Rhine to the telephone office, so as to enable the appellee at Montpelier to be placed in telephone communication with him at Hartford City. We grant that, if the appellant had adopted a rule that it would not undertake to call persons to the telephone whose place of business or residence was so remote from the station as to render it unreasonable that it should be required to find them, such a rule would be reasonable, and could be enforced. Possibly, appellant, even without such a rule, could not be required to send out for a person who is to be found at too great a distance from the station. But appellant does not deny its liability upon any such Telephone Co. v. Swoveland. ground. Indeed, it is not contended that Dr. Rhine was not within a very short distance of the telephone station when he was called for by the appellee, and the only ground upon which the appellant seeks to avoid liability is that it is not responsible for the negligence of the messenger in calling Rhine. We do not think the appellant's position tenable, and must hold that it was a part of its public duty, under the facts of this case, to place the parties in communication with each other within a reasonable time after its agents were informed of the nature of the service desired, and had undertaken for a stipulated consideration to furnish such service. The complaint is sufficient. Moreover, it cannot be denied that in the present case the contract itself provided that the appellant should send a messenger for Rhine, and bring him to the telephone; at least, this is what the complaint alleges, and there is evidence tending to prove such allegation. If, then, the appellant undertook to perform such messenger service by the term of its contract, and failed to do so, it would be liable for a violation of the contract, whether its duty to the public required it to render such service or not. What we have said disposes also of the second point made by the appellant's counsel against the appellee's right of recovery, viz., that appellant has the right to adopt and promulgate reasonable rules and regulations for the management of its business. NOTE.- In the omitted portion of the above opinion, the court deals with the defendant's contention that even if it was the duty of appellant to send a messenger for the veterinary surgeon, and if it was guilty of negligence in the performance of this duty, the evidence does not show that such negligence was the proximate cause of the death of the horse; that the damages were too remote, speculative and conjectural; and that, therefore, the appellant was in no event entitled to recover. It appeared that the horse died shortly before the arrival of the surgeon, who came by a later train than he might have done if he had been Telephone Co. v. Fehring. promptly notified to attend the telephone. The trial judge instructed the jury that in case they should find for the plaintiff, the value of the horse would be the measure of his damages. The appellate court decided that there was no evidence from which the jury could legitimately infer that the defendant's negligence was the proximate cause of the death of the horse, and therefore reversed the judgment. In this part of the opinion the following cases reported in this series are cited: Chapman v. W. U. Tel. Co., vol. 3, p. 670; W. U. Tel. Co. v. Crall, vol. 2, p. 575. The following appear after the prevailing opinion: "Ross, J., concurs in the result reached, but not in all of the reasoning of REINHARD, J. "GAVIN, C. J.: I very much doubt whether any duty rests upon telephone companies to send messengers for parties who are desired at the telephone, unless there be a contract to so do, or the company holds itself out to the world as ready to render this service." See note to next case. CENTRAL UNION TELEPHONE COMPANY V. AUGUST A. FEHRING. Indiana Supreme Court, November 6, 1896. DISCRIMINATION BETWEEN TELEPHONE PATRONS. A statute which prescribes the duties of both telegraph companies and telephone companies as common carriers, is not unconstitutional as embracing more than one subject. Statute prohibiting discrimination by telephone companies, held to apply to discrimination not only between applicants for telephone but also between patrons having instruments, so that a company refusing to connect two subscribers became liable for the statutory penalty. Cases of this series cited in opinion, appearing in bold faced type: Central Union Teleph. Co. v. Bradbury, vol. 2, p. 14; Central Union Teleph. Co. v. State, ex rel. Falley., vol. 2, p. 27. APPEAL by defendant below from judgment of Circuit Court, Bartholomew county. Hacker & Remy, for appellant. Cooper & Cooper, for appellee. Telephone Co. v. Fehring. MONKS, C. J.: This action was brought by appellee against appellant to recover the statutory penalty under sections 5529, Rev. St. 1894 (section 2, p. 151, Acts 1885), for failure and refusal on the part of appellant to supply appellee with "telephone connection and facilities without discrimination or partiality." The complaint was in two paragraphs, which were substantially the same except the offense was alleged on different days. Appellant's separate demurrer for want of facts to each paragraph of complaint was overruled. An answer in three paragraphs was filed, to which a reply of general denial was filed. The cause was tried by jury, and a general verdict rendered in favor of appellee, and his damages assessed at $100; and, over a motion for a venire de novo and a motion for a new trial, judgment was rendered in favor of appellee. The first objection urged to the complaint is that the act upon which the cause of action is based embraces more than one subject-telegraph companies and telephone companies-and is, therefore, unconstitutional, under the provisions of section 19 of article 4 of the Constitution. Rev. St. 1881, sec. 115 (Rev. St. 1894, sec. 115). The act in question is entitled "An act to prescribe certain duties of telegraph and telephone companies, providing penalties therefor, and providing an emergency." Acts 1885, p. 151, sec.2 (Rev. St. 1894, sec. 5529). This court has held that a telephone company doing a general telephone business is a common carrier of news in the sense a telegraph company is a common carrier; and that section 2, p. 151, Acts 1885 (section 5529, Rev. St. 1894), prescribes the duties of telegraph and telephone companies as such common carriers. Central Union Telephone Co. v. Bradbury, 106 Ind. 1, and cases cited; Central Union Telephone Co. v. State, ex rel. Falley, 118 Ind. 194, 206. The subject of the act is neither telegraph nor telephone companies, but is prescribing the duties of such |