126 Ga. 621 | Ga. | 1906
This was an action for damages arising from an alleged failure of the Western Union Telegraph Company to transmit and deliver a message. "Under the view we take of the cáse, the controlling question is as to whether or not the defendant ever received the message from the plaintiff for transmission. If the defendant did not receive the message for transmission, of course it could not be held liable for any damage to the plaintiff on account of the failure to communicate the matter to the person for whom the message was intended. It appeared on the trial that Mr. Wallace, who was manager for the plaintiff, desiring to- send a message to Eavenel & Company of New York, being at his residence, telephoned the message to the stenographer in his office, who reduced it to writing. The stenographer testified that he “wrote it off and telephoned it to the Western Union office.” The stenographer also testified that it had been their “custom to deal with the defendant over the telephone. The place of business of the plaintiff is . .' about 2 or 3 miles from the office of the defendant. We received and sent all messages over the telephone, and at the end of the month the defendant would send a bill.” The message intended to be sent was a reply to a message from Eavenel & Co., which the stenographer testified he “had received over the telephone from the Western Union office.” The stenographer testified further: “When I called up the telephone, I asked for the Western Union Telegraph Company’s office. On such occasions I always ask, Us that the Western Union office?’, and they say, ‘Yes,’ and I say, ‘This is the Planter’s Cotton Oil Company. Take a message,’ and they take it down and repeat it over to me. After taking down the message, he repeated it back to me, and it was all right.” The same witness further testified: “I know Mr. Tetrea,
There was not sufficient evidence to support a verdict for the plaintiff. The stenographer attempted to deliver over the telephone the message intended to be transmitted. He did not see or ■otherwise recognize the person to whom he was speaking over the telephone, and it was impossible for him to say in fact that he was conversing with the agent of the defendant. He did not know even that he was talking into any telephone in the office of the defendant. His whole information upon that point was based upon hearsay evidence, which, although admitted without objection, was incompetent to prove the fact. See Eastlick v. Southern Ry. Co., 116 Ga. 48. The telephone operator may not have connected him with the Western Union office. If such connection was in fact made, the higher and better evidence would have been the testimony of the operator of the telephone company. There is no proof that
Judgment affirmed.