Western Union Telegraph Co. v. Fatman , 73 Ga. 285 ( 1885 )

Jackson, Chief Justice.

This is an action brought by a ship broker in Savannah against the 'Western Union Telegraph Company for unreasonable delay in delivering a cablegram, whereby the broker was damaged the loss of his commissions from a contractor to take his ship, the time given the broker having expired and his customer having taken another ship by reason of the delay of the company in delivering the cablegram. No question is made on any error in the transmission to Savannah or delay in reaching that city; but delay in the failure to deliver to the broker after it reached Savannah, is the ground for recovery and the issue in the case.

The jury found for 1he broker the commissions he lost by non-delivery of the dispatch in time, and a motion for a new trial denied below makes the questions for review here.

1. The able counsel for plaintiff in error groups his grounds for new trial under four heads, and his- analysis makes as convenient and succinct a mode of considering the questions of law as we can well devise. The first is objection to the admission of the copy telegram received from the company in Savannah as written out by itself, and failure to produce the original message delivered at Liverpool. The copy was clearly admissible. No point is made on its not being the exact message which started from Liverpool to the Savannah broker, nor is it at all his complaint that that thing started in Liverpool was altered or -not transmitted right in every respect until it got to Savannah ; but the issue made is that the agents of the Western Union Company at Savannah did not deliver the copy, which it was their duty to write out and deliver, from their office to the defendant’s office in time. When it delivered that copy, it cannot well deny that it is a fac simile of the original, as received by it, and which itself wrote out, but delivered too late.

2. The next point insisted upon is that there can be no recovery on a cipher telegram, except nominal damages, unless the company be advised of its value, and the counsel has pressed this point with power and cited many authorities from England and our own' state courts bearing thereon.

In the view we take of the question, it becomes unnecessary to examine closely these numerous cases, which are somewhat variant in shades of opinion and diverse in conclusions reached, because we think that the case of The Western Union Telegraph Co. vs. Blanchard, Williams & Co., 68th Ga., 299, gives the views of this court on the point so fully in principle as to settle it in this state. There a telegram was in these words: “ Cover two hundred September and one hundred August.” One defence being that the telegram was in cipher, evidence was admitted to decipher or explain it, and not nominal, but the real damages, naturally flowing from the company’s failure in duty, were recoverable. True those words are not pure cipher, but they are wholly unintelligible, every whit as much so as the words here; yet this court held that there was enough in them to show that the message was commercial and of value. Cablegrams had crossed the ocean for days by the broker in the case at bar; he was neighbor to the agents at Savannah, h.is office within five minutes’ walk of theirs, the fact that this was a communication between a ship broker and a company in Liverpool, and couched in language so singular and unintelligible to the common reader, all taken together, make a case as strong as that cited from 68th Ga., to put the company on notice that this was important commercial business and required reasonable and ordinary dispatch.

Besides, whether valuable or not, it is the contract to deliver the message in a reasonable time, and the judge of the city court, at once learned and cautious, charged the jury only to that effect, and put the issue of delivering in a reasonable time fairly and clearly before that body. Whilst the duties of the telegraph company are similar to those of ordinary common carriers, and so much so as to make it proper to call them, and in many respects treat them, as quasi common carriers, yet as- their charges are based on number of words, and not on weight as carriers of ordinary freight, or on value, as express companies, the rule of liability should not be the same, as respects notice or no notice, of the value of the dispatch. That word “ dispatch ” is the very core of the body of such a company, whether it be called carrier or bailee, or any other name. People write messages by them, and not by the slower mails, because they are in need of haste. Business, or family necessity, sickness or death, make dispatch, in this mode of conveyance, the very consideration on which they use it, on which they pay higher rates for it, for which the privileges are granted to them by the public, and surely the messages so sent, when received, must be delivered with reasonable dispatch in all cases, and if not, the damages sustained by failure must be paid. The thing they undertake for money to carry must be carried to the place of destination, and that is to the office or house where due, for nobody goes, or is required to go, to their office for answer, but it is their duty to send it to him.

Besides, if a cipher, or unintelligible communication, might be rejected by them, or put on terms by special contract, and if, in this sense, they may not be common carriers of everything, yet, when they undertake to carry it, and receive message and money in consideration of the one to deliver the other, ought it ’ not to be done ? Of course it ought. When ? Of course, within a reasonable time. Where ? Just where the man, who pays for the delivery, expects to get it, and where they agreed to deliver it, and showed, in this case, that they did so agree by delivering it at the broker’s office, though too late.

3. It is insisted that, the verdict is wrong on the question of a reasonable time. The telegram or cablegram was received by the company at 10:24 a. m., and delivered at 11:55 A. m., one hour and thirty-two minutes after its reception. Five minutes’ walk could have delivered it. If delivered at 11:10 a. m., it would have been in time to save plaintiff’s contract. Was the time unreasonable % The court left it to the jury on a fair charge; they held that it was; there was confusion in the testimony about the messenger boy;, there was evidence enough to authorize the finding; it satisfied the presiding judge; we should violate our rule if we interfered on this point.

4. The damages are said to be too remote and speculative. Not so. ■ They were precisely what the plaintiff would have made by his contract with Nisbet, if the cablegram had reached him at 11:10 a. m. That was a easonable time within which it should have reached him j the jury and the judge say so; it strikes us the same way; at all events, we cannot, without departing from well settled rules of practice in this court, interfere with their decision, unless the case showed an abuse of discretion and violation of justice, which we do not see here. Hence the verdict must stand, and the judgment be affirmed.

Judgment affirmed.