The Western Union Tel. Co. v. Fontaine

• Decision Date: 31 January 1877
• Citation: 58 Ga. 433
• Parties: The Western Union Telegraph Company, plaintiff in err0r. v. Theophilus S. Fontaine, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 433

The Western Union Telegraph Company, plaintiff in err0r. v. Theophilus S. Fontaine, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Corporations. Contracts. Damages. Negligence. Before Judge Crawford. Muscogee Superior Court. November Term, 1876.

Reported in the decision.

Thornton & Grimes, for plaintiff in error.

J. M. & R. A. Russell, for defendant.

Warner, Chief Justice.

The plaintiff brought his action against the defendant to recover damages, which he alleged he had sustained in consequence of the breach of duty and negligence of the defendant, in failing to send and deliver a certain described telegraph message, received by it from the plaintiff at Columbus, Ga., to be transmitted, for a certain stipulated reward, to Nourse & Brooks, at the city of New York. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for the sum of $363.00. A motion was made for new trial on the several grounds of error alleged therein, which was overruled by the court, and the defendant excepted. It appears from the evidence in the record that, on the 9th of December, 1872, the plaintiff handed the paper, of which the following is a copy, to the defendant's agent at Columbus, Ga ["Half Rate Messages.]

"The Western Union Telegraph Company will receive messages for all stations in the United States, east of the Mississippi river, to be sent during the night, at one-half the usual rates, on condition that the company shall not be liable for errors or delay in the transmission or delivery, or for non-delivery, of such messages, from whatever cause occurring, *and shall only be bound in such case to return the amount paid by the sender. No claim for refunding will be allowed, unless presented in writing within twenty days.

"William Orton, President.

"O. H. Palmer, Secretary.

"December 9th, 1872.

"Send the following message, subject to the above terras, which are agreed to:

"To Messrs. Nourse & Brooks, 76 Beaver street, New York:

"Exercise your own discretion as regards covering December contract. T. S. Fontaine."

Plaintiff testified that he handed the foregoing; message to Coleman, one of the defendant's operators, at the office of the company in the city of Columbus, on the evening of the 9th of December, 1872, and paid fifty cents, the usual amount for a night, or half-rate, message. Witness knew that there was a difference in the obligation and liability of the company on night messages, and those sent in the day; did not ask to have the message repeated, nor offer to pay for the same. Plaintiff proved by Nourse & Brooks that the message was not received by them, and also proved the damage sustained in consequence thereof in the sale of the plaintiff's cotton. Harrell and Coleman, the defendant's agents and operators at Columbus, testified as to the receipt of the message from plaintiff, and that the same was forwarded from that office on the night of its reception to some repeating office between Columbus and New York; that plaintiff, previous to the 9th of December, 1872, had frequent dealings with defendant, and transacted most of his business upon red, or night, messages. The court charged the jury, amongst other things, in substance, that the defendant was a quasi common carrier, and liable, as such, for its failure to deliver messages received by it, and could not Emit its legal liability by any notice given by publication, or by entry, on receipts given. The legal effect of the charge of the court was to make the defendant liable for the safe delivery of all messages received by it for transmission, either by night or day, in the same manner, and to the same extent, as a commoncarrier of goods is made liable by the law of this state. *1. What is the exact measure of the defendant\'s liability in this state, under the existing laws thereof, is a question to be decided for the first time by this court, and we are, therefore, at liberty to decide it in accordance with the general principles of law applicable to that particular business, in the absence of any statutory regulations concerning it. When a person, either natural or artificial, undertakes any employment, trust, or duty, such person contracts with those whoemploy or entrust him, or it, to perform that employment, trust, or duty, with that integrity, diligence, and skill, which belongs and appertains to that particular employment, and if by the want of either of those qualities, any injury occurs to those who employ him, or it, for a reward, an action on the case may be maintained therefor to recover damages. The defendant, as a telegraph company, by its machinery, undertakes to transmit messages from one place to another for hire, for those who may think proper to employ or entrust it with that particular business. In the absence of any statutory regulations, what is the measure of the defendant\'s liability for neglect of duty in carrying cm the particular business in which it is engaged? Is it liable as a common carrier, or quasi...