Western Union Tel. Co. v. Lark

• Decision Date: 10 June 1895
• Citation: 23 S.E. 118,95 Ga. 806
• Parties: WESTERN UNION TEL. CO. v. LARK.
• Court: Georgia Supreme Court

23 S.E. 118

95 Ga. 806

WESTERN UNION TEL. CO. v. LARK.

Supreme Court of Georgia

June 10, 1895

Syllabus by the Court.

1. According to the decision of this court in Telegraph Co v. James, 16 S.E. 83, 90 Ga. 254, there could be a lawful recovery of the statutory penalty from a telegraph company for negligence in delivering a message at one of its offices in this state, although the message came from an office in another state, notwithstanding the provisions of the interstate commerce clause of the federal constitution.

2. Whether or not, since the passage of the pleading act of 1893, it is within the discretion of the court in a civil case not founded on an unconditional contract in writing, and which was in default at the appearance term, to allow, upon proper cause shown, an issuable defense to the action to be filed at a subsequent term, there was no error, under the facts of the present case, in refusing to allow the defendant to file a plea at the trial term.

3. No issuable defense having been filed, it was, under the provisions of this act, proper for the court to treat as true, without proof, every essential averment of fact distinctly and plainly made in the plaintiff's petition and, this being so, the plaintiff's right to recover was established. As the amount of the recovery was a penalty fixed by the statute, and could be neither more nor less, no evidence was necessary for the purpose of showing for what sum the verdict should be rendered, and accordingly there was no error in directing a verdict in the plaintiff's favor for the amount of the statutory penalty.

Error from superior court, Telfair county; C. C. Smith, Judge.

Action by Louisa Lark against the Western Union Telegraph Company. Plaintiff had judgment, and defendant brings error. Affirmed.

Crovatt & Whitfield and Harrison & Peeples, for plaintiff in error.

D. C McLennan, for defendant in error.

SIMMONS C.J.

1. The court did not err in overruling the defendant's motion to dismiss the action. According to the decision of this court in Telegraph Co. v. James, 90 Ga. 254, 16 S.E. 83, the interstate commerce clause of the federal constitution had no application to the case. Although the telegram in question was sent from an office of the defendant in another state, the ground upon which the plaintiff sought to recover the statutory penalty was the failure of the defendant to deliver the message after it had reached the office to which it was addressed in this state.

2. No plea was filed at the appearance term of the case. At the trial term counsel for the defendant stated to the court that he had sent a plea to the clerk of court by mail in time to be filed at the...