5 Ga. App. 503 | Ga. Ct. App. | 1909
(After stating the foregoing facts.)
We think that the court erred in refusing a new trial; for, in our view of the case, the direction of the verdict for the plaintiffs was wholly unwarranted. Passing over all of the assignments of
The learned counsel for the defendants in error, we think, very properly classifies the instant action as one brought upon breach, of contract. A contract must be implied from the acceptance of' the message for delivery. Glenn v. W. U. Tel. Co., 1 Ga. App. 821 (58 S. E. 83). It can not be denied that, considered as a matter of a contract, the sender of the message and the telegraph company had the right to stipulate for a qualified period of ■ limitation.. Similar stipulations have frequently been construed as reasonable-rules or regulations which may be adopted by the telegraph company in the conduct of its business, and it has been held that where; the sender of a message uses a blank worded similarly to the one in. the record, he thereby assents to the rule and it becomes incorporated in the contract. Of course, if a telegraph company accepts: for transmission a message not written upon one of its own blanks:
The only question, then, is whether the telegrams above referred to constitute an intelligible, definite claim, or are to' be considered
In the leading case of Manier v. Western Union Telegraph Co., 94 Tenn. 442 (29 S. W. 732) — cited in W. U. Tel Co. v. Courtney, 113 Tenn. 482 (82 S. W. 484), and approved in Croswell on the Law of Electricity, §558 — it was held, that it is not sufficient compliance with a contract, exempting a telegraph company from liability unless the claim for damages resulting from negligence in the transmission of a message shall be made within sixty days, “to notify the telegraph company of delay of the message, and probable loss, without presenting any distinct claim.” The facts in the Manier case, upon the particular point, were not entirely dissimilar to those in the case at -bar. If the message in the Manier case had been promptly _ delivered, the plaintiffs’ attorney could have taken out attachments which would have resulted in collecting the entire amount of their claim against a failing debtor. By reason of the telegraph company’s negligence and delay in delivering a message, the instructions to the attorney were delayed until several other creditors had levied attachments and established a prior lien upon the debtor’s property. The exact amount which Manier & Company would lose by failing to levy the first attachment as they would have done, could not be definitely ascertained until the affairs of their debtor were administered and the lien of each attachment had been determined by the court. The court could not pass upon this issue until after the expiration of the sixty days in which it was stipulated that the claim be presented, and it appears that at the time that Manier & Company notified the telegraph company that they claimed damages they did so in about the same general terms as were employed by the plaintiffs in the present ease. In the Manier case no amount of loss was fixed by the claim. In the present ease no amount was fixed as being the claim for loss, and in fact it appears that the loss increased (as the market was declining) after the plaintiffs notified the defendant compan}'' that they would-make a claim. In-the ■opinion in the Manier case Chief Justice Snodgrass, after treating of the reasonableness of the rule embodied in the contract, and
While the stipulation does not look solely or primarily to affording a telegraph company an opportunity of settling the claim for •damages without litigation, and is perhaps rather intended to en■abie such a company (which has large numbers of employees from ■whose acts or non-action its liability arises) to investigate the
In Bashinsky v. W. U. Tel. Co., supra, we adverted to some of the differences between messages sent in cipher and those conveyed in the language of the country. Arrangements are often made between mercantile houses and individuals for codes of words, each word standing for a clause or phrase; and these words, though intelligible to the parties sending and receiving, are wholly unintelligible to persons not having a key. Such a telegram “conveys no information whatever to the telegraph company of the transaction to which it relates, or the consequences likely to flow from negligence in its transmission or delivery. It is therefore held in most cases that a message which is wholly unintelligible in its language because written in cipher does not render the telegraph company liable for any damage which may result from negligence in its transmission or delivery, unless information dehors the message has been given which puts the telegraph company in possession of facts relating to the real purport and object of the message, or unless some special contract as to its transmission has been made.” Croswell on the Law of Electricity, §588. See also cases cited in that section. In Primrose v. W. U. Tel. Co., 154 U. S. 1 (14 Sup. Ct. 1098, 38 L. ed. 883), the Supreme Court of the United States held that where the message was in cipher, only nominal damages could be recovered.
We conceive, then, the true rule to be that where such stipulations as those in the present instance are embodied by the parties into a contract for the transmission of a telegraphic message, the claim must not only be in writing, but the message for the nonperformance or non-delivery or miscarriage of which damages, are claimed must be identified, the negligence complained of must be stated, and the telegraph company should be fairly informed of the nature and extent of the claimant’s demand. The claim itself should be filed, and not merely notice of a claim be given. W. U. Tel. Co. v. Courtney, 113 Tenn. 482 (82 S. W. 484); 27