OPINION.
The statute under which the suit was brought provides r
“It shall be the duty of the owner or association owning any telegraph lines, doing business within the State, to-receive dispatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual charges for individuals for transmitting, dispatches, as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith, under the penalty of one hundred dollars for every neglect or refusal so to do, to be recovered with costs of suit, in the name and for the benefit of the person sending, or desiring to send, such dispatch, &c.” Gantt’s Dig., sec. 5721.
The agent of the appellant company, at Little Rock, received the dispatch in question, and promptly it appears, sent it to the agent at Conway, who received it, and returned the usual receipt. So far no negligence is imputed to appellant. But the dispatch was not delivered, to Riley, although he called for it several times, and the agent could, or did render no excuse for his failure to deliver it. It seems he could recollect nothing about it. The delivery of the dispatch was part of the duty of transmission, which appellant assumed.
The court found, upon the agreed facts, that appellant, *83failed to deliver the dispatch, through the negligence of its employe at Conway, and the finding was warranted by the facts agreed on.
<I)ií¡rPAH" tf °0 aSu vigín anc°" While telegraph companies are not insurers and do guarantee the delivery of all messages with entire accuracy, and against all contingencies, they do undertake for ordinary care aud vigilance in the performance of their duties, and to answer for the neglect and omission of duty of their servants and agents. Baldwin v. United States Telegraph Co., 45 New York, 751; Hubbard et al. v. Western Union Telegraph Co., 33 Wisconsin, 565.
2. Sam®: Damages In a common law action against a telegraph company for negligence in failing to transmit or deliver a message, inal damages only can be recovered, unless actual are alleged and proved, lb.;1 Sutherland on Damages p. 10.
statute But in a suit under the above statute no actual need be alleged or proved. The statute fixes the amount or penalty to be recovered, whether the actual damage be great or small.
By the statute of several of the American states, penalties are imposed upon telegraph companies for failure in the discharge of many of the duties resting upon them in respect to the transmission and delivery of messages; as for example, in respect to failure to transmit the message with impartiality and good faith; failure to send the message in the order of time in which it is received for transmission ; disclosure of contents of message by the agents and servants of the company; failure to transmit and deliver the message, etc.
In other states many of these violations of duty are made criminal, and punished with fine and imprisonment. See a collection of such statutes in Law of Telegraphs, Scott <& Jarnagan, secs. 419-446.
s,(jb Counsel for appellant submit that the statute being penal, and therefore to be strictly construed, there can be *84recovery under it unless the negligence complained of be intentional.
The court below was not asked to make any special declaration of law construing the statute, but to declare in general terms that the law upon the agreed facts was for appellant, which was refused.
Conceding it to be true, for the disposal of this case, without deciding it, that a recovery can be had, under the statute, for intentional neglect to transmit or deliver a message, only when the plaintiff proves alleged negligence, must he go farther and prove that it was intentional on the part of the telegraph company, or its agents, or is the bur-then upon the defendant to prove that it was accidental, and not wilful ?
The authorities are that negligence being shown by plaintiff, the burthen is shifted to defendant to excuse it. Western Telegraph Company v. Ward, 23 Indiana, 377; Central Law Journal, vol. 2, p. 748—9.
In this case it was proved or agreed, that the agent at Conway received the telegram, but did not deliver it to Riley, although he called for it several times, and nothing is shown to account for or excuse this negligence. The court below was warranted, therefore, in assuming that the negligence was intentional on the part of the agent, or a gross disregard of duty.
On a charge of murder at common law, it is. a familiar rule that the fact of killing being proved, the law implies malice, and thebui’then of proving circumstances of excuse, mitigation or justification is upon the accused.
In the administration of penal stututes, it is perhaps a general rule that where the wrongful act is proved, it devolves upon the defendant to show that it was unintentional, accidental, excusable or justifiable.
In Russell v. Irby, 13 Ala., 131, the case relied on by counsel for appellant as in point, the plaintiff brought debt *85under a penal statute against defendant for cutting and removing timber from the plaintiff’s laud. We take it that if nothing had been proved in that case but the fact that defendant’s servants cut and hauled trees from plaintiff’s land, the coui’t would have decided that plaintiff was entitled to recover the statute penalty in the action. But it was proved, by defendant no doubt, that he directed his servants to cut timber on his own land, and pointed out as well as he could, his line, but that the servants unintentionally, in cutting timber, passed over defendant’s line, and cut and removed a few trees from plaintiff’s land. The court held, upon the whole evidence, that iuasmuch as the trespass was shown to have been accidental, and not intentional, plaintiff could not recover the statute penalty, but would have to resort to a common law action for actual damage — the value of the timber.
Affirmed.