Western Union Telegraph Co. v. Hines

• Decision Date: 16 August 1895
• Citation: 23 S.E. 845,96 Ga. 688
• Parties: WESTERN UNION TEL. CO. v. HINES.
• Court: Georgia Supreme Court

23 S.E. 845

96 Ga. 688

WESTERN UNION TEL. CO. v. HINES.

Supreme Court of Georgia

August 16, 1895

Syllabus by the Court.

1. Though a paper has been produced under notice, inspected by the party calling for it, and put in evidence by him, if he announced before so doing that he "contended it was not the original" of the paper called for, he did not lose the right to subsequently attack, on the ground stated, the paper introduced, notwithstanding he may have given no "formal notice" of an intention to do so. If the party calling for and inspecting the paper did not, at or before the time of introducing it, mention any objection to it, or give any notice whatever of an intention to attack it he could not afterwards impeach it unless he had been in some way misled, imposed upon, or deceived, after the exercise on his own part of proper diligence.

2. If the sendee of a telegraphic message informed the manager of the company's office in the city to which the message was addressed that he (the sendee), by reason of the company's failure to duly deliver a message sent to him had lost a job worth $60 per month and board, and intended to sue the company for damages, and the manager thereupon replied, "Hold on awhile, and I will see into it and let you know," and also stated that he "would arrange it," but thereafter made no report to the sendee, it was a question for the jury whether or not this amounted to a waiver by the company of the 60 days' written notice of the sendee's claim for damages stipulated for upon the blank on which the company contended the original message was written.

3. A telegraphic message in these words, "Have work; come at once," was sufficient to put the company on notice as to the character of the damages which would probably result to the sendee of the message from negligence on the part of the company in failing to deliver it to him in due time.

4. The evidence in this case clearly showed that the plaintiff lost at least one year's employment because of the defendant's negligence, the verdict was reasonable in amount, and, on the whole, there was no error requiring a new trial.

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by J. C. Hines against the Western Union Telegraph Company to recover damages for failure to deliver a telegram. There was a judgment for plaintiff, and defendant brings error. Affirmed.

Dorsey Brewster & Howell and Wright, Hamilton & Wright, for plaintiff in error.

W. T. Turnbull and Fouché & Fouché, for defendant in error.

SIMMONS C.J.

1. When this case was here before, it appeared that the plaintiff had lost the copy of the dispatch which was delivered to him by the telegraph company, and the trial judge allowed him to prove the contents of it without producing or accounting for the original. 94 Ga. 430, 20 S.E. 349. On the second trial it appeared that the plaintiff had given the telegraph company notice to produce the original, which had been filed by the sender in the office of the company in Birmingham. There was no dispute between the parties as to the words of the message, but the dispute was as to whether the message was written on one of the printed blanks of the company or upon ordinary paper. The printed blanks contained a stipulation that if damages were claimed on account of nondelivery of the message, written notice of the same should be given to the company within 60 days. The defendant claimed that the original message was written on one of these blanks, but the plaintiff denied this. The defendant produced at the trial a paper written on one of its blanks, with the above stipulation printed thereon, which it claimed to be the original message called for by the plaintiff. This paper was introduced in evidence by the plaintiff, his counsel stating to counsel for the defendant, before so doing, that he "contended it was not the original," but no formal notice was given that the plaintiff intended to attack it on that ground. During the trial he did attack it, and attempted to show that the original message, as received by the company from the sender, was written on ordinary paper, which...