Gardner v. Western Union Tel. Co

• Decision Date: 26 March 1914
• Docket Number: (No. 5403.)
• Parties: GARDNER. v. WESTERN UNION TELEGRAPH CO.
• Court: Georgia Court of Appeals

(14 Ga.App. 403)

81 S.E. 259

GARDNER.

v.WESTERN UNION TELEGRAPH CO.

(No. 5403.)

Court of Appeals of Georgia.

March 26, 1914.

(Syllabus by the Court.)

1. Telegraphs and Telephones (§ 65*)—Delivery of Forged Telegram—Action for Damages—Petition—Sufficiency.

The general demurrer being properly sustained, it is unnecessary to consider in detail the several grounds of the special demurrer.

LEd. Note.—For other cases, see Telegraphs and_ Telephones, Cent. Dig. §§ 54-60; Dec. Dig.

2. Master and Servant (§ 302*) — Telegraphs and Telephones (§ 05*)—Petition —Sufficiency—Negligence of Employe— Liability to Third Person—Scope of Employment.

Where an action is predicated upon the alleged negligence or misconduct of an agent or employe, in order to bind the principal it must be proved that the agent or employ^ was acting at the time within the scope of his employment, and therefore it should be specifically alleged in the petition of the plaintiff that the agent or employ^ acted within the scope of his employment, or his duty as such agent or employs should be so specifically set forth as to indicate what was the actual scope of his employment, and whether or not the act complained of was within that scope. Century Building Co. v. Lewkowitz, 1 Ga. App. 636. 57 S. E. 1036.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1217-1221, 1225, 1229; Dec. Dig. § 302;* Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.*]

3. Telegraphs and Telephones (§ 66*)—Delivery of Forged Telegram — Action for Damages—Burden of Proof.

Where damages are sought because of the negligence or misconduct of another, it must appear that loss necessarily resulted therefrom; and, where the loss arose from the delivery of a forged telegram agreeing to accept a draft, it must appear that the pretended acceptor was solvent at the time, and able to respond to any legal demand arising from such acceptance, had the same been genuine.

[Ed. Note.—For other cases, see Telegraphs and Telephones, Cent. Dig. §§ 61-63; Dec. Dig. § 66.*]

4. Pleading (§ 1*)—Telegraphs and Telephones (§ 65*)—Delivery of Forged Telegram—Action for Damages.

A general charge in a petition that loss accrued to the plaintiff, because the servant or agent of the defendant was "unreliable, " and because the defendant had in its employ "the unreliable messenger boy referred to in the petition, knowing him to be unreliable, " without more specifically alleging how or in what particular the servant or agent was "unreliable, " or how or in what manner the defendant was negligent, is insufficient; nor is it sufficient to plead alleged facts as affording a reason for the ultimate fact, unless the ultimate fact is a necessary deduction from such evidentiary or alleged facts. Davis v. Arthur, 139 Ga. 75, 76 S. E. 676.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1, 2; Dec. Dig. § 1;* Telegraphs and Telephones, Cent. Dig. §§ 54-60; Dec. Dig. § 65.*]

5. Pleading (§ 54*)—Sufficiency—Counts.

Where a petition contains two counts, and no reference in either count is made to any of the allegations in the other, and the allegations in one are not expressly adopted in the other, each count must stand or fall by itself, and the averments ill one count cannot be considered in aid of the other.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 118; Dec. Dig. § 54.*]

Error from City Court of Albany; Clayton Jones, Judge.

Action by G. R. Gardner against the Western Union Telegraph Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Jas. Tift Mann, of Albany, for plaintiff in error.

Jno. K. MacDonald, Jr., and Dorsey, Brewster, Howell & Heyman, all of Atlanta, and Pottle & Hofmayer, of Albany, for defendant in error.

WADE, J. [1-3] Gardner, doing business as the St. Nicholas Hotel, sued the Western Union Telegraph Company in the city court of Albany, alleging that he had been injured and damaged in the sum of $75, by reason of the following facts: That on or about August 1, 1913, a person registered at the hotel of the plaintiff as H. Davis, and requested plaintiff to honor or cash his draft on the Uncle Sam Breakfast Food Company, of Omaha, Neb., and to this end wrote a telegram to be sent through defendant's office at Albany, directed to said Breakfast Food Company, and presented the same to plaintiff's clerk at said hotel, and requested said clerk to send the same for him. Plaintiff's said clerk took said telegram and pulled or operated the call box of the defendant, which was installed in plaintiff's hotel, and was connected with the office of the defendant in said city of Albany, and, in response to the call of said "box" a messenger boy, known as Harley Bramlett, and known at the time as messenger boy No. 2, and then employed by the defendant, responded to the call of said "box" at about 1:55 p. m., and took said telegram from plaintiff's said clerk and disappeared. Said telegram, which is not in the control, power, or custody of plaintiff, was in substance a request to said Uncle Sam Breakfast Food Company to wire plaintiff to honor the said draft of H. Davis for $75. That' about 8 p. m. on the same day that plaintiff had delivered said message to said Bramlett, the said messenger boy came to the plaintiff's hotel and delivered to plaintiff's clerk a telegram purporting to have been received by defendant at Albany from said Breakfast Food Company, directed to this plaintiff, and requesting that the plaintiff honor said H. Davis' draft for $75—a copy of which telegram is attached to the petition. Upon receipt of said last-mentioned message, and...