92 Ga. 619 | Ga. | 1893
1. Mrs. Conyers, the addressee of a telegraphic message, sued the Postal Telegraph Cable Company for the statutory penalty of one hundred dollars for failure to deliver with due diligence. At the trial it appeared from the evidence that the message was received by the defendant from another telegraph company, which had re
2. The declaration, as it originally stood, alleged that the delivery of the message for transmission was made by J. W. Burge to the defendant’s agent at Stilesboro, Ga. At the trial the plaintiff was allowed to amend by alleging that the delivery at that place was to the agent of the telegraph line of the East & West Railroad Company of Alabama, who forwarded the message over that
The cause of action alleged in the declaration was the failure to deliver to the plaintiff at Atlanta, with due diligence, a particular message therein set out, which the defendant had received for, transmission and delivery ; and the allegation in the amendment that this-message was received by the defendant at another point than that stated in the declaration, did not change the cause of action. So likewise as to the allegation that the defendant received the message through another telegraph line, to whose agent Mr. Burge had delivered it, instead of receiving it directly from Mr. Burge, as appeared from the declaration. As we have already explained in this opinion, the action being by the person to whom the message was addressed, and the breach of duty complained of being the failure to deliver with due diligence to the plaintiff, it makes no difference whether the message was received in the one way or the other. In the declaration as amended, the identity of the matter upon which the action is founded is fully preserved, and the effect of the amendment is simply to correct a misdescription in setting out matter of inducement.
3. The message delivered at Atlanta by the defendant to the plaintiff was admitted in evidence over the objection of the defendant that it was not admissible, because the message received for transmission was the highest and best evidence, and its absence was not accounted for; and the overruling of this objection is assigned as error. The court was clearly right in this
4. The message delivered by the defendant to the sendee being marked “ paid,” there was evidence from which the jury could find that the defendant’s charges were prepaid, and therefore that the message should have been delivered with due diligence, as required by the statute.
Judgment reversed as to the main bill of exceptions, and affirmed as to the cross-bill.