93 Ga. 635 | Ga. | 1894
H. G. Smith sued the telegraph company for the statutory penalty for failure to deliver a message dated May 2, 1892, signed by him and addressed to C. M. Fort, Atlanta, Ga., this message having been delivered by the plaintiff' to the company’s agent at its office in Rome, Ga., and the charges for sending the same being prepaid. There was a verdict for the plaintiff, and the defendant’s motion for a new trial being overruled, it excepted.
When the plaintiff proved that the message was not delivered, a prima facie case of negligence was made out, and it becamé incumbent on the company to show that it exercised due diligence. The leaving of the message at the Markham House, simply because there was a person there named Fort, without making any further inquiry then or afterwards to ascertain whether this was the proper person or not, might well have been regarded by the jury as insufficient to establish due diligence on the part of the company, and if its efforts to find the addressee before leaving the message at the hotel were not sufficient to relieve the company of any further duty in the premises, the jury were clearly warranted in finding as they did. Whether the company was justified-in abandoning all further effort to find the addressee when it failed to find him at the hotels or to find his name in the city directory or address-book of the company, would depend upon whether there were other means of finding him, which in the exercise of ordinary and reasonable diligence it ought to have resorted to. A means which might naturally have sug