(concurring.) We are clearly of tbe opinion that tbe defendant should not be held liable for amounts of money' paid out' after tbe dispatch was received at tbe bank. It required only a moment’s time to step to tbe front door of tbe bank, and close it. Tbe law in such case does not bold tbe defendant responsible for avoidable damages. Undoubtedly a large portion of tbe money paid out would have remained in tbe bank if it bad been closed immediately upon tbe reception of tbe dispatch. I therefore concur.

This cause comes here on motion for a new trial on the grounds of insufficiency of the evidence, the findings and decisions being against law, and errors in law. This action was brought by T. L. Stiles, as assignee of Hudson & Co., against the Western Union Telegraph Company, to recover damages for the delay in the delivery of a telegraphic message sent by the plaintiff from Tucson to Tombstone. It appears that Hudson & Co. on the ninth day of May, 1884, had a banking-house in Tucson, with a branch establishment at Tombstone. Mr. M. B. Clapp, to whom the message was sent, was the cashier of the branch house, and there managed the bank. That on the evening of the ninth of May an assignment of all the property of Hudson & Co., both at Tucson and at Tombstone, was made to T. L. Stiles. Thereupon, on acceptance of the trust, the plaintiff, assignee, on the evening of the ninth of May, sent by defendant a telegram to Clapp, and *312with directions to forward the telegram immediately. The telegram was received by the operator at Tombstone at 9 :15 of May 9th, and not delivered till the morning of the 10th, between 9:15 and 9:30, and after the bank was opened for business. The telegraph office at Tombstone was less than two blocks from the bank. Clapp’s residence was in the same town, and he was there on the evening of the 9th. The usual time for delivering dispatches, when too late the night before, was from 8:30 to 9 a. m. The office of the telegraph company was opened at 8 o’clock a. m. The bank opened at 9 o’clock A. m. Before the delivery of the message the operator (Kingsberry) drew from the bank the sum of $1,167.71, and other smaller sums were withdrawn from the bank before the message was delivered.

On the opening of the bank on the 10th, the money in the vaults had been placed upon the trays on the counter for the day’s business. On the reception of the dispatch, Clapp, the cashier, told the employes of its contents, and directed to have the money put back in the vaults, and then went to see plaintiff’s attorney, and in the mean time directed the bank to be kept open. The business was on until the attorney came, and put- up notice, which was one-half hour after the delivery of the message. The sum of $5,102.19 was paid out to unpreferred creditors, including the sum of $1,167.71 paid on the check of the operator. The operator testified that $1,000 of the $1,167.71 belonged to him, and the balance to defendant. The books of the bank show an itemized statement of the amounts drawn out by each depositor, and among them is Western Union Telegraph Company, $1,167.71. But that fact is immaterial. There can be no dispute but that the conduct of the operator was grossly negligent, and the defendant cannot be relieved of responsibility caused by his misconduct. No terms annexed to the message can excuse this failure to deliver the message before the opening of . the bank; such failure to deliver being gross negligence and palpable misconduct, and the telegraph company must bear every legitimate consequence of its non-delivery.

But does that consequence involve anything which in this case happened after the message came to the hands of the bank? The telegraph company must be held for every dol*313lar paid out before tbe message was delivered. We eau see no good reason wby it should be for tbe money afterwards paid, for any payment made after tbe delivery of tbe message were entirely voluntary on tbe part of tbe bank. A justification is sought because of tbe fear of a mob. No such exhibition existed, and tbe excuse cannot be sustained. Tbe teller testified that be paid checks because be feared, if be did not, that a rush would be made on them; that when be left tbe bank a large crowd bad assembled there; but while tbe bank remained opened for business there was no excitement, and but four people there outside of tbe employes. Wby could not the employes of tbe bank have closed tbe outside doors, and then put tbe money in tbe vaults ? Besides, it would take only a few moments to handle $20,000 or $30,000, which amount was in tbe trays in which coin is usually kept in banks. It not being otherwise shown, we take it that most of tbe money, as it is tbe custom of banks in Arizona, was in gold coin, and only silver enough to make change.

We must conclude that tbe finding “that, by reason of said failure to deliver message, tbe plaintiff paid out to unpreferred creditors tbe sum of $5,102.19,” is erroneous. Tbe record does not disclose tbe full amount paid out before tbe delivery of tbe message, saying only it was “other smaller sumís,” and there must be a new trial, unless plaintiff will, by written consent, accept from defendant tbe sum of $1167.71 with legal interest from tbe ninth day of May, 1884, in which case judgment for that sum is ordered to be entered.

(dissenting.) The evidence in this ease shows that the operator of defendant at Tombstone withheld the message from about 9 o’clock in the evening, “on purpose,” as he swears, that he might draw out the money deposited to credit of defendant in the bank; that he waited until the bank opened, then went in, and drew out the funds of defendant. He kept the fact of the assignment secret until then. He then went to his office, and handed the telegram to the messenger boy, who had to make a letterpress copy and enter it on the delivery-book, put it in an envelope, and address it, and then go to the bank and deliver the message. Meantime the bank was open in due course of business. This was a willful, and not a negligent act of the operator. He was not simply speculating on the information contained in the message to his profit, but he was using the information to his profit and the customer’s injury. The defendant, after full knowledge of the facts, ratified the act, and refused to refund the money so wrongfully drawn out. The defendant is liable for all injury to plaintiff consequent upon this willful wrong. Smart money or punitive damages would have been proper. 2 Thomp. Neg. 851; Davis v. Western Union Telegraph Company, I Cin. Rep. 100; 2 Thomp. Neg. 1264; Edelmann v. St. Louis T. Company, 3 Mo. App. 503; Levenworth Company v. Rice, 10 Kan. 426; Jackson v. Schmidt, 14 La. Ann. 807; Illinois Central Railroad Company v. Welch, 52 Ill. 184; Murphy v. New York, etc., Railroad Company, 29 Conn. 496; Welch v. Durand, 36 Conn. 182, 4 Am. Rep. 55; Whipple v. Walpole, 10 N. H. 130; Hawes v. Knowles, 114 Mass. 518, 19 Am. Rep. 383; Jacobs v. Louisville, etc., Railroad Company, 10 Bush, 263; Bass v. Chicago, etc., Railway Company, 39 Wis. 636; Peoria Railroad Company v. Loomis, 20 Ill. 251, 71 Am. Dec. 263; Wallace v. New York, 2 Hilt. 442; Wallace v. New York, 18 How. Pr. 169.

True the officers of the bank ought to have closed the bank when informed of the message; but if they did not, who should suffer? They were not plaintiff’s agents. They were joint and several wrong-doers with defendant after the message was delivered. Before that they were his unwitting instruments. The wrong-doer who wrongfully and will*315fully caused the bank to open, should be responsible for his agents, or- the instruments of his wrong. To say that a telegraph company, a common carrier of messages, may use the information so received to the injury of a customer, and not be responsible for the injuries consequent to the customer, is monstrous. For these reasons I dissent from the opinion of the court.