Brown v. Western Union Tel. Co, (No. 18776.)

• Decision Date: 22 January 1929
• Docket Number: (No. 18776.)
• Citation: 147 S.E. 151,39 Ga.App. 152
• Parties: BROWN v. WESTERN UNION TELEGRAPH CO.
• Court: Georgia Court of Appeals

39 Ga.App. 152

147 S.E. 151

BROWN

v.WESTERN UNION TELEGRAPH CO.

(No. 18776.)

Court of Appeals of Georgia, Division No. 2.

Jan. 22, 1929.

Judgment Adhered to on Rehearing March 2, 1929.

(Syllabus by Editorial Staff.)

Error from Superior Court, Floyd County; Jas. Maddox, Judge.

Suit by W. L. Brown against the Western Union Telegraph Company. To review a judgment of nonsuit, plaintiff brings error. Reversed.

See, also, 144 S. E. 11.

W. L. Brown brought suit in an action ex delicto against the Western Union Telegraph Company, and in his petition as amended prayed for nominal damages in the sum of $250, alleged as arising from the failure of the defendant to deliver to the addressee a telegraphic message which the defendant had accepted from the petitioner at Rome, Ga., for delivery to Rostrell Brown, at 1363 Matthew place, Knoxville, Tenn., and for the transmission of which the petitioner had paid to the defendant 36 cents; the message being: "Did you get money? Wire me when to meet train. Answer Rome. W. L. Brown."

The evidence adduced in behalf of the plaintiff was to the effect that Knoxville, Tenn., was a city having over 100, 000 inhabitants, that the place to which the telegraphic message was directed, namely, 1363 Matthew place, was in the city of Knoxville, a mile and a half beyond the main office of the telegraph company, that Matthew place was a public street in the city of Knoxville, being lighted with electric lights and traveled by pedestrians and people in automobiles and the public generally, and the street having numbered houses on it, and that the place known as 1363 Matthew place was a dwelling house, which had conspicuously displayed upon the front of the house the number 1363; that the Western Union Telegraph Company had some time before delivered two telegrams to a person living at 1363 Matthew place; that the telegram was sent from Rome at 6:30 p. m. on February 11, 1927, and that all during the evening of that date the addressee was at 1363 Matthew place, and during that time the telegram was not delivered to him; that at no time prior to his leaving Knoxville, on the morning of February 13th afterwards, was the telegram ever delivered to him.

On the back of the telegraph blank which contained the original message that the sender gave to the telegraph company in Rome was printed the following: "Domestic messages and incoming cable messages will be delivered free within one-half mile of the company's office in towns of 5, 000 population or less, and within one mile of such office in other cities or towns. Beyond these limits the company does not undertake to make delivery, but will, without liability, at the sender's request, as his agent and at his expense, endeavor to contract for him for such delivery at a reasonable price."

From the evidence, it appeared further that the sender of the message, W. L. Brown, had lived in the city of Knoxville and knew as a fact that the house to which the message was directed was a mile and a half beyond the main office of the telegraph company in that city, but it does not appear that when he filed the message with the company at Rome he had actual knowledge of the existence of the above-quoted rule of the company.

After the introduction of the foregoing evidence by the plaintiff, the court granted a nonsuit. The plaintiff excepted.

Porter & Mebane, of Rome, for plaintiff in error.

Graham Wright, of Rome, for defendant in error.

Syllabus Opinion by the Court.

STEPHENS, J. [1-3] 1. Whether or not it is a reasonable regulation, either as a part of the contract or as a rule of the telegraph company, for...