Western Union Tel. Co v. Waxelbaum

• Decision Date: 20 July 1901
• Citation: 113 Ga. 1017,39 S.E. 443
• Court: Georgia Supreme Court
• Parties: WESTERN UNION TEL. CO. v. WAXELBAUM et al.

39 S.E. 443

113 Ga. 1017

WESTERN UNION TEL. CO.

v.WAXELBAUM et al.

Supreme Court of Georgia.

July 20, 1901.

TELEGRAM—NEGLIGENCE IN TRANSMISSION-CONDITIONS—REASONABLENESS.

1. While the sendee of a telegraphic message has a right of action against the company for any damages he may sustain in consequence of its negligence in the transmission of a message to him, he is bound by the reasonable terms of the contract made between the company and the sender of the message.

2. Where one delivers for transmission to a telegraph company a message written on the blank of another company, the blank containing printed instructions that the message shall be sent subject to the terms and conditions printed on the back thereof, the reasonable conditions therein set out are binding, notwithstanding they are in the form of a contract with a company other than the one to which the message is delivered. The delivery and acceptance of such a message is, in effect, an adoption by the parties of the blank contract made in the name of the other company.

3. A provision in such a contract that the company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within 60 days after the message is filed for transmission is reasonable and binding.

4. The evidence failing to disclose in what amount, if any, the plaintiffs were damaged, the court erred in directing a verdict in their favor for the definite amount for which suit was brought.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by J. J. Waxelbaum & Co. against the Western Union Telegraph Company. Judgment for plaintiffs. Defendant brings error. Reversed.

Guerry & Hall and Wm. F. Blue, for plaintiff in error.

Hardeman, Davis, Turner & Jones, for defendants in error.

LEWIS, J. In November, 1898, Waxelbaum & Co., a firm doing business in Macon Ga., telegraphed to Kennard & Co., of Chicago, to ascertain the price of eggs. In reply they received the following telegram: "Telegram received market higher advancing fifteen and half lowest today quick telegram." It seems to be conceded that the original message as delivered for transmission to the Western Union Telegraph Company (the plaintiff in error) by Kennard & Co., in Chicago, read "sixteen and half" instead of "fifteen and half, " and that an error was made by some employe of the telegraph company in the transmission of the message. On the faith of the telegram as received by them, Waxelbaum & Co. ordered a large shipment of eggs from Kennard & Co., and when they came discovered for the first time that the price was 16 1/2 cents per dozen. They took the eggs, however, at the advanced price, and, it seems, disposed of them in Macon. Later they sued the telegraph company in a justice's court of Bibb county for breach of contract for $75, the amount alleged to have been lost by them on account of the negligent failure to properly transmit the telegram. The defendant filed an answer denying indebtedness, and setting up that the plaintiffs had failed to comply with a clause in the written contract between the company and the sender of the message, stipulating that the company would not be liable for damages or statutory penalties in any case where the claim was not presented in writing within 60 days after the message was filed with the company for transmission. Judgment was rendered for the plaintiffs in the justice's court, and the defendant appealed to a jury in the superior court. After hearing the evidence, the judge of the superior court directed a verdict for the plaintiffs for the full amount sued for, and the defendant excepted. The original message sent by Kennard & Co., which, by consent, was sent to this court with the bill of exceptions, was written on a blank of the Postal Telegraph Cable Company...