Goldsboroucui, J.,
delivered the opinion of this court.
The action in this case was instituted in the Court of Common Pleas of Baltimore city, by the appellant against the appellee, to recover damages for the total neglect to send, or transmit, a message, or despatch, received by the appellee to be transmitted.
The appellee pleaded, that it did not enter into the contract alleged in plaintiff’s declaration, for the transmission of the telegraphic despatch, or message, named therein.
At the trial of the cause an admitted statement of facts, and the evidence offered by the appellee, were submitted to the jury. The appellant, then offered three prayers, and the appellee one prayer. The court rejected the prayers of the appellant, and granted the prayer of the appellee; to this ruling of the court the appellant excepted.
In reviewing the action of the court below, it is proper to notice, that the prayers submitted to the court are predicated upon the evidence, without any reference to the pleadings. In such case the rule is, “that where a prayer, or prayers, neither point nor refer to the pleadings, the correctness of their being rejected or granted, depends, not upon the state of the pleadings, but upon the evidence, to which filone they refer.” See 1 Gill, 227; 7 Gill, 5; 1 Md. Rep., 207; 13 Md. Rep., 126.
In view of the above rule, we are next, to consider the reasons, assigned by the appellee, why the appellant’s prayers were properly rejected. The appellee contends, that “in each of these instructions, it is stated that, on the written statement of fads, read, in evidence, the jury must final, ” fc., and that the effect of this wording of the prayers is, to deprive the jury of their undoubted privilege,of deciding upon the truth of theevidence,” and cites 1 Md. Rep., 451, and 11. G. & J., 489. We find a satisfactory answer to this proposition in 11 Md. Rep., 185, in which this court say: “It. is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary when the case is tried upon [356]*356admissions at the bar. The jury may discredit the testimony, but cannot find contrary to the agreement of the parties.” See, also, the case of Armstrong vs. Risteau, 5 Md. Rep., 276.
Again, the appellee contends that the first prayer is bad, “because it could not be granted unless the cpurt assumed the non-existence of all other testimony given in the cause; because by the prayer, no par^ of it is submitted .to the landing of the jury.” In our opinion the appellant, in presenting this prayer to the court, only exercised a right recognized by law. In Whiteford vs. Burckmyer and Adams, 1 Gill, 143, the court say: “We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case,, and to demand the opinion of the court distinctly upon it. If the opposite party believes that other facts, not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has' the equal privilege of asking an opinion on the additional facts, b.u(t not the privilege of controlling and modifying the hypothesis of his antagonist.” Here the appellee has brought itself within tlje above rule, by asking an instruction from the court on other facts not embraced in the prayer of the appellant. It is further contended by the appellee, that it is protected from the demand of the appellant by its rules and regulations, established under the Act of 1852, ch. 369.
By a careful examination of those, rules and regulations, we find no provision exempting .the appellee from liability in a case of default and neglect, such as is contained in the statement of facts.
It is admitted by .the statement of facts, that the appellant delivered the message for transmission, and paid the price demanded for that service; that the person who received it was the authorized agent of the appellee; that the message was received at the appeliee?s place o.f business; that the appellee forgot, and neglected to send said message and despatch, and it has never been sent. The loss of the appellant in the sale of his stock, is als,o, admitted. We must therefore regard [357]*357the appellee as a party contracting to perform a service, within, the sphere of its business for compensation, which it fails tq perform, and, for such failure, must account for any loss or injury that results from its neglect; and such loss, or injury, will be the measure of damages to which the plaintiff is entitled, whether admitted or found by the jury.
The appellant’s first prayer was therefore improperly rejected. The action of the court below, upon the appellants second and third prayers, we must approve. The rule laid, down in 12 G. & J., 236, and 12 G. & J., 484, is directly applicable to these prayesr. The court say? “Where the court cannot grant the entire prayer as made, though a portion of it, in a separate, distinct form, might have been given, it is not error to reject the whole.” We think the latter part of the second and third prayers of the appellant obnoxious to this rule. They substantially raise the question, that though the default and neglect, of which the plaintiff complains, may be embraced within the rules and regulations exempting the appellee from liability, yet that liability is not removed unless these rules and regulations are brought home to th.e knowiedgp of the appellant. In our opinion, the converse of the proposition is true: the appellant was bound in law to know them.
The appellant’s counsel attempted to assimilate the responsibility of this telegraph company to that of a common carrier. But the distinction is obvious. It is well defined by the appellee. “What does a telegraph company do? It receives a written message for transmission. It uses machinery to reptjoduce the words of that message at a distant point, either by direct copying of it under some alphabetical system, or by translating the message into certain symbols, which, marked upon paper at a distant point, are there translated into our ordinary language. It cannot be said to be even in the manual charge of the message, so transmitted, during its transmission. It relies on machinery and upon threads of communication which are liable to break or interruption, through accident, influence of the climate, wantonness or malice. These civ[358]*358cumstances make it impossible for the company to remain in actual practical custody of its line.”
While a common carrier is an insurer, and is protected from liability by the act of God or the enemies of the ¡State, he can avail himself only of such excuses. He sees what happens to his charge at the moment it happens. But a telegraph company, owing to innumerable causes which may disturb the security of its lines, would be as often open to liability because of the providences of God, unknown to it, as because of any other rea^pn. ...
This telegraph company is not a common carrier, but a bailee performing, through its agents, a work for its employer, according to certain rules and regulations, which, under the law, it has a right to make, for its government. The appellee is supposed to know that the engagements of the appellee are controlled by those rules and regulations, and does himself, in law, -'engraft them in his contract of bailment and is bound by them.
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Goldsboroucui, J.,
delivered the opinion of this court.
The action in this case was instituted in the Court of Common Pleas of Baltimore city, by the appellant against the appellee, to recover damages for the total neglect to send, or transmit, a message, or despatch, received by the appellee to be transmitted.
The appellee pleaded, that it did not enter into the contract alleged in plaintiff’s declaration, for the transmission of the telegraphic despatch, or message, named therein.
At the trial of the cause an admitted statement of facts, and the evidence offered by the appellee, were submitted to the jury. The appellant, then offered three prayers, and the appellee one prayer. The court rejected the prayers of the appellant, and granted the prayer of the appellee; to this ruling of the court the appellant excepted.
In reviewing the action of the court below, it is proper to notice, that the prayers submitted to the court are predicated upon the evidence, without any reference to the pleadings. In such case the rule is, “that where a prayer, or prayers, neither point nor refer to the pleadings, the correctness of their being rejected or granted, depends, not upon the state of the pleadings, but upon the evidence, to which filone they refer.” See 1 Gill, 227; 7 Gill, 5; 1 Md. Rep., 207; 13 Md. Rep., 126.
In view of the above rule, we are next, to consider the reasons, assigned by the appellee, why the appellant’s prayers were properly rejected. The appellee contends, that “in each of these instructions, it is stated that, on the written statement of fads, read, in evidence, the jury must final, ” fc., and that the effect of this wording of the prayers is, to deprive the jury of their undoubted privilege,of deciding upon the truth of theevidence,” and cites 1 Md. Rep., 451, and 11. G. & J., 489. We find a satisfactory answer to this proposition in 11 Md. Rep., 185, in which this court say: “It. is well settled, that even where the proof is all on one side, the finding of the facts must be left to the jury; but this is not necessary when the case is tried upon [356]*356admissions at the bar. The jury may discredit the testimony, but cannot find contrary to the agreement of the parties.” See, also, the case of Armstrong vs. Risteau, 5 Md. Rep., 276.
Again, the appellee contends that the first prayer is bad, “because it could not be granted unless the cpurt assumed the non-existence of all other testimony given in the cause; because by the prayer, no par^ of it is submitted .to the landing of the jury.” In our opinion the appellant, in presenting this prayer to the court, only exercised a right recognized by law. In Whiteford vs. Burckmyer and Adams, 1 Gill, 143, the court say: “We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case,, and to demand the opinion of the court distinctly upon it. If the opposite party believes that other facts, not embraced in the hypothesis assumed, are properly calculated to justify an application for other and different instructions, he has' the equal privilege of asking an opinion on the additional facts, b.u(t not the privilege of controlling and modifying the hypothesis of his antagonist.” Here the appellee has brought itself within tlje above rule, by asking an instruction from the court on other facts not embraced in the prayer of the appellant. It is further contended by the appellee, that it is protected from the demand of the appellant by its rules and regulations, established under the Act of 1852, ch. 369.
By a careful examination of those, rules and regulations, we find no provision exempting .the appellee from liability in a case of default and neglect, such as is contained in the statement of facts.
It is admitted by .the statement of facts, that the appellant delivered the message for transmission, and paid the price demanded for that service; that the person who received it was the authorized agent of the appellee; that the message was received at the appeliee?s place o.f business; that the appellee forgot, and neglected to send said message and despatch, and it has never been sent. The loss of the appellant in the sale of his stock, is als,o, admitted. We must therefore regard [357]*357the appellee as a party contracting to perform a service, within, the sphere of its business for compensation, which it fails tq perform, and, for such failure, must account for any loss or injury that results from its neglect; and such loss, or injury, will be the measure of damages to which the plaintiff is entitled, whether admitted or found by the jury.
The appellant’s first prayer was therefore improperly rejected. The action of the court below, upon the appellants second and third prayers, we must approve. The rule laid, down in 12 G. & J., 236, and 12 G. & J., 484, is directly applicable to these prayesr. The court say? “Where the court cannot grant the entire prayer as made, though a portion of it, in a separate, distinct form, might have been given, it is not error to reject the whole.” We think the latter part of the second and third prayers of the appellant obnoxious to this rule. They substantially raise the question, that though the default and neglect, of which the plaintiff complains, may be embraced within the rules and regulations exempting the appellee from liability, yet that liability is not removed unless these rules and regulations are brought home to th.e knowiedgp of the appellant. In our opinion, the converse of the proposition is true: the appellant was bound in law to know them.
The appellant’s counsel attempted to assimilate the responsibility of this telegraph company to that of a common carrier. But the distinction is obvious. It is well defined by the appellee. “What does a telegraph company do? It receives a written message for transmission. It uses machinery to reptjoduce the words of that message at a distant point, either by direct copying of it under some alphabetical system, or by translating the message into certain symbols, which, marked upon paper at a distant point, are there translated into our ordinary language. It cannot be said to be even in the manual charge of the message, so transmitted, during its transmission. It relies on machinery and upon threads of communication which are liable to break or interruption, through accident, influence of the climate, wantonness or malice. These civ[358]*358cumstances make it impossible for the company to remain in actual practical custody of its line.”
While a common carrier is an insurer, and is protected from liability by the act of God or the enemies of the ¡State, he can avail himself only of such excuses. He sees what happens to his charge at the moment it happens. But a telegraph company, owing to innumerable causes which may disturb the security of its lines, would be as often open to liability because of the providences of God, unknown to it, as because of any other rea^pn. ...
This telegraph company is not a common carrier, but a bailee performing, through its agents, a work for its employer, according to certain rules and regulations, which, under the law, it has a right to make, for its government. The appellee is supposed to know that the engagements of the appellee are controlled by those rules and regulations, and does himself, in law, -'engraft them in his contract of bailment and is bound by them.
The appellee cannot be considered a common carrier, because, by the Act of 1852, ch. 369, it was authorized to contract, not by the force of any common law duty or obligation, but in accordance with its rules and regulations, and this power is inconsistent with the common law definition of a carrier.
The prayer of the appellee was erroneously granted. Conceding that the notice, read in evidence, contained the terms on which the appellee would receive and transmit messages, and its exemption from liability, as stated in the prayer; and, also, that this notice was displayed in the office of the company, so that the appellant saw or might have seen if; still it is manifest that the terms of the notice neither embrace nor declare an exemption from liability in a case where no effort is made by the company, or its agents, to put a message on its transit. The exemption from liability for the non-transmission and non-delivery of unrepeated messages, provided for by the rules contained in the notice, does not, in our opinion, in any way embrace or affect this case.
[359]*359(Decided June 4th, 1862.)
The terms of the notice in which exemption from liability is declared, clearly imply an obligation on the part of the com-J pany to attempt the transmission and delivery of a message ref ceived by it for that purpose, and it would be most, unreasona-j/ ble to permit it to.have the benefit of an exemption from lia-1 bility without first bringing itself within the scope of the exemption provided for, by a full and faithful performance of its implied duties. „
While we give full force and effect to the rules and regulations of the appellee in. a legal construction of them, we deem it unjust to the appellant to extend that effect beyond the actual terms adopted by the appellee to secure its exemption.
Judgment reversed, and procedendo awarded1.