95 Ga. 194 | Ga. | 1894
The facts appear in the reporter’s statement.
The rule as to telegraph companies seems to be the same as that applicable to railroad carriers. Proof of the delivery to a telegraph company of a message, non- (or incorrect) transmission of it, and consequent damage, is all that is required to make out a prima facie case of negligence. Thomp. Elec. §§266, 275 ; 25 A. & E. Enc. of Law, 831; Whart. Negl. §766; 3 Suth. Dam. 295, 2d ed. 2140 ; Gray, Com. by Tel. §§26, 53, 54, 77. Breach of the contract is presumed to comprehend negligence. This, as stated by Boynton, C. J., in Tel. Co. v. Griswold, 37 Ohio St. 313, for the reason that: “If the error or mistake is attributable to atmospheric causes or disturbances, or to any cause for which the company is not
In Turner v. Hawkeye Tel. Co., 41 Iowa, 458, 20 Am. Rep. 605, the court dealt with the question of presumption in a case where a message delivered by one telegraph company to another which was sued for error in transmission, was not shown by the plaintiff to have been different from the one delivered to him. Beck, J., says: “Defendant’s line of telegraph did not extend to Chicago, but at Grinnell it connected with another line reaching to that city, from which the market reports were obtained, and sent by defendant to different points on its line. It is insisted by defendant that plaintiff' failed to show that a correct report was furnished, to be sent from Grinnell upon defendant’s line. The evidence shows that the market reports were received at Grinnell on the day the incorrect one was delivered to plaintiff'. Upon this evidence we must presume that the reports received there and delivered to defendant were correct. The rules of evidence, in the absence of proof showing the report delivered to defendant at Grinnell to be either correct or incorrect, require us to presume it to have been c<®¡rect. They are based upon the • fact that men ordinarily, in the course of business, act correctly and speak truly. Errors and intentional misstatements are exceptions, and not the rule in the affairs of business. Their application in this case is demanded by the fact that the evidence to establish error in the report furnished defendant was within its control and exclusive knowledge. Plaintiff was utterly unable to prove the correctness of the report furnished at Grinnell, while, if it had been
Again, in Olympe de La Grange v. Southwestern Tel. Co., 25 La. An. 383, it was contended that the defendant was not the first carrier or contractor, and that it was not pi’oved that the error in the transmission occurred on defendant’s line, on whose printed blank there was an express provision for non-liability for the default of other companies. But it was held, “that whether first carrier or not, it was peculiarly within their power, and was their duty, to make the proof here suggested, if necessary.”
Surely, the two cases last cited go further than is requisite to support our ruling in the present case; for where a third party is also concerned, the further question is presented whether it was not in the power of the plaintiff to show that such third party in dealing with the message was free from negligence.
In the case at bar, the plaintiff showed a breach of contract — and prima facie negligence — which must have occurred on the defendant’s line, either in this State or in Alabama. Undoubtedly, it was in the exclusive power of the telegraph company to show the exact point where the failure of diligence occurred, and through the negligence of what particular servant it was occasioned. It will not do to say that the servants of tl# company are equally at the disposal of the plaintiff to prove the facts connected with the transaction. The truth of this assertion maybe demonstrated by the peculiar facts here presented. The plaintiff, it is true, did know the company’s agent at Lithonia, and perhaps could have secured him as a witness at the trial. But suppose this had been done and he had testified that he had promptly forwarded the message to the relay office at Atlanta, but had no further knowledge as to the transaction, how could the plaintiff pursue his
Finally, the plaintiff showed more than a mere failure to deliver. His brother, the addressee, who lived in Montgomery, testified: “ I went directly to the telegraph office, as soon as I received my broth ei’’s letter, and there had been no message for me at all. The telegram was sent on Thursday. I received my brother’s letter on Sunday morning at 9.30.” Therefore, it was shown that three days after the message was handed to the agent at