On Petition for Rehearing.
Mr. Justice Eakindelivered the opinion of the court.
The motion for rehearing does not raise any new or different questions from those submitted at the original argument and passed upon by the court, but it questions the correctness of the conclusions reached.'
4. The point emphasized by the motion is that the company should not be held liable in damages to the addressee for negligence in the transmission or delivery of a message, unless the addresee was the primary beneficiary therein. In considering the liability of telephone companies, we are almost exclusively confined for precedents, to decisions relating to telegraph companies, and so far as the courts and text-writers have expressed themselves, they treat them as similar, in their general features, both as to duties and liabilities. Anderson’s Law Dictionary says that “telegraph” includes any apparatus for transmitting messages or other communications by means of electric signals. Under “telephone” he says: “A telephone is a telegraph.” See, also, Jones, Telegraph & Telephone, c. 1; Croswell, • Electricity, §§ 13, 18; and note to Cent. Union Tel. Co. v. Falley, 118 Ind. 194 (19 N. E. 604: 10 Am. St. Rep. 114, 128).
*29For the purpose of the consideration of this motion it may be taken as conceded that the telephone company is responsible to the addressee of a message where he is the primary beneficiary in it, if the company is advised of that fact, either by the terms of the message itself or otherwise (Frazier v. Western Union Tel. Co. 45 Or. 414: 78 Pac. 330: 67 L. R. A. 319) ; and the only question open for discussion is whether it is liable to the addressee in case he is not the primary beneficiary, but has a beneficial interest in it: The cases are practically uniform in holding that the remedy of the addressee of a message is in tort, except in cases where he is the principal of the sender (Postal Tel. Cable Co. v. Ford, 117 Ala. 672: 23 South. 684), though some base recovery upon other grounds. See a discussion of this subject in Croswell, Electricity, §§ 456, 457, 460, et seq., where the cases are cited. The only person having contractual relations with the company is the sender, or a person for whose benefit he makes the contract, and in the great majority of cases the addressee cannot rely upon any contractual relation. The basis of his right is ex delicto, namely, that the company, in the exercise of a public franchise, and in the performance of duties of a public character incident thereto, is liable to the public for the performance of those duties with reasonable care and diligence; and in such a case the company is responsible to the addressee for negligence in' the transmission and delivery of a message it has contracted to deliver to him: Croswell, Electricity, §§ 460, 462; Jones, Telegraph & Telephone, § 557; Cent. Union Tel. Co. v. Swoveland, 14 Ind. App. 341 (42 N. E. 1035) ; Hellams v. Western Union Tel. Co. 70 S. C. 83 (49 S. E. 12) ; Green v. Western Union Tel. Co. 135 N. C. 489 (49 S. E. 165: 67 L. R. A. 985: 103 Am. St. Rep. 955) ; New York & W. Ptg. Tel. Co. v. Dryburg, 35 Pa. 298 (78 Am. Dec. 338); Smith v. Western Union Tel. Co. 83 Ky. 104 (4 Am. St. *30Rep. 126) ; Western Union Tel. Co. v. Dubois, 128 Ill. 248 (21 N. E. 4: 15 Am. St. Rep. 109) ; Western Union Tel. Co. v. Longwill, 5 N. M. 308 (21 Pac. 339) ; McPeek v. Western Union Tel. Co. 107 Iowa, 356 (78 N. W. 63: 43 L. R. A. 214; 70 Am. St. Rep. 205).
5. The defendant’s liability upon the contract is limited to the person for whose benefit the contract is made; but, where the liability is ex delicto, it may extend to any one who is injured by the negligence of the company, and therefore there may be a liability to different individuals for the same tort. Gray, Communication by Teleg. § 67, and Croswell, Electricity, § 457, quoted in Frazier v. Western Union Telegraph Co., 45 Or. 414, 419 (78 Pac. 330: 67 L. R. A. 319) to the effect, that the right of the addressee of a message to recover for a breach of the contract will be confined to cases where he is the sole beneficiary thereof, are discussing the remedy on the contract, and not the remedy in cases of tort or liability for negligence. Croswell, at Section 457, just preceding the language quoted in Frazier v. Western Union Telegraph Co., and as the basis of that language, says: “This same class of cases is also sustained by the courts on the principle which is law in a few states, that a person for whose benefit a contract is made may maintain an action to compel the performance of it”—while at Section 471 he says it is well settled in the United States that the addressee of a message may sue in tort for negligence in the transmission or delivery of the message; his action being based upon the default of the telegraph company in the performance of its duty at common law. Gray denies this remedy at Section 66, but he is not supported by the authorities in this country. To create a liability upon the company in favor of the addressee, who is not the person for whose benefit the contract is made, for negligence in the transmission and delivery of a message, that is, to create a *31liability in tort, it is necessary that the addressee have some interest in the message, and that such interest be disclosed by the terms of the message, or otherwise communicated to the company: Western Union Tel. Co. v. Kirkpatrick, 76 Tex. 217 (13 S. W. 70: 18 Am. St. Rep. 37) ; Western Union Tel. Co. v. Schriver, 141 Fed. 538 (72 C. C. A. 596: 4 L. R. A. (N. S.) 678).
It was urged in some of the cases we have examined that, the remedy being in tort for breach of a public duty, notice to the company of the plaintiff’s interest in the message would be unnecessary, and recovery might be had for any damage suffered. This position is taken by the editors of the Columbia Law Review, vol. 5, p. 170, in referring to the case of Frazier v. Western Union Tel. Co. 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319), and applies the general rule as to liability for torts, citing Western Union Tel. Co. v. Fatman, 73 Ga. 285 (54 Am. Rep. 877), and Pollock, Torts (6 ed), 532. But the liability for a tort in such a case as this does not rest alone on the negligence of the company, but is so far dependent upon the original contract for transmission as to limit the remedy to cases in which the company had notice of the plaintiff’s interest: Frazier v. Western Union Telegraph Co., 45 Or. 414 (78 Pac. 330: 67 L. R. A. 319) ; Smith v. Western Union Tel. Co. 83 Ky. 104 (4 Am. St. Rep. 126) ; 27 Am. & Eng. Enc. Law (2d ed.), 1059, where many cases are cited; Jones, Telegraph & Telephone Co. § 480; Postal Tel. Cable Co. v. Barwise, 11 Colo. App. 328 (53 Pac. 252) ; Western Union Tel. Co. v. Wood, 57 Fed. 471 (6 C. C. A. 432: 21 L. R. A. 706) ; Western Union Tel. Co. v. Pearce, 82 Miss. 487 (34 South. 152) ; Butner v. Western Union Tel. Co. 2 Okl. 234 (37 Pac. 1087; 6 Cur. Law, 1674; Western Union Tel. Co. v. Kirkpatrick, 76 Tex. 217 (13 S. W. 70: 18 Am. St. Rep. 37) ; Western Union Tel. Co. v. Coffin, 88 Tex. 94 (30 S. W. 896) ; Hadley v. Western *32Union Tel. Co. 115 Ind. 191 (15 N. E. 845). Bearing these distinctions in mind will explain much apparent conflict in the decisions. In Western Union Tel. Co. v. Schriver, 141 Fed. at page 548 (72 C. C. A. at page 606: 4 L. R. A. (N. S.) 678), in an opinion by SANBORN, circuit .judge, rendered in 1905, he says:
“When the opinions in them (cases referred to) are carefully read and analyzed, they recognize and affirm the. rule that a company owes a duty and incurs a liability to those parties only of whose interest it has notice, and for those injuries only which it might reasonably anticipate.”
It divides the cases into four classes: (1) Those which assert a duty and liability to the undisclosed principal of the sender; (2) those which recognize a duty and liability to a person who appears on the face of the message to be its beneficiary, although neither the sender nor the addressee; (3) those which deny any duty or liability to those who do not appear from the message to have any interest in it; and (4) the decisions which deny any liability to the undisclosed principal of the addressee. He cites many cases under this classification. We think the conclusion is unavoidable that the telephone company is liable to the addressee or person called to the phone by a patron, for any negligence in the transmission and delivery of a message or call, when the company had notice from the message or otherwise at the time of the transmission that such addressee had an interest therein, and such liability is not contractual, but in tort; and that being the ground of the liability, it is' not necessary that the addressee be the primary beneficiary in the message, but it extends to the addressee if he has any interest.
6. The suggestion in the motion that the result of the decision in this case imposes on a telephone company unreasonable liability because of the nature of the busi*33ness and ease with which mistakes may be made, we have not overlooked in this consideration. When the request by a patron is for an office or the phone of a particular person, the company has performed its whole duty when it has made connection with such phone, and it is not responsible for the identity of the person answering or the messages passing between them; but, if it carelessly connects the patron with the wrong phone, and there is no contributory negligence on his part, it may be liable: See note to Planters’ Cotton Oil Co. v. Western Union Tel. Co. 126 Ga. 621 (55 S. E. 495: 6 L. R. A. (N. S.) 1180), generally as to identity in conversation. But where the company contracts to produce at its own office a certain individual to answer a long distance or any call, as in this case, it is bound to exercise reasonable care to produce the proper person, and is liable to such person for negligence in that regard, if it had notice of his interest: Central Union Tel. Co. v. Falley, 118 Ind. 194 (19 N. E. 604: 10 Am. St. Rep. 114, 128, note) ; Central Union Tel. Co. v. Swoveland, 14 Ind. App. 341, 350 (42 N. E. 1035).
Therefore the motion will be denied.
Affirmed: Rehearing Denied.