Western Union Telegraph Co. v. Bates , 93 Ga. 352 ( 1893 )

Bleckley, Chief Justice.

1, 2. The first and second points have been ruled heretofore. As to the first, see Western Union Telegraph Co. v. James, 90 Ga. 254, 16 S. E. Rep. 83. As to the second, see W. U. Tel. Co. v. Fatman, 73 Ga. 285; Same v. Blance, 94 Ga. , 19 S. E. Rep. 255.

3. The trial court has a discretion in allowing leading questions when a witness is under examination in open court. We see not why this discretion should not extend to the taking of evidence by interrogatories. Here the witness interrogated was an agent of the adverse party, and doubtless this was the reason why the court deemed it no impropriety to lead him. We can see nothing to indicate any abuse of discretion.

4. The demand upon the company for damages was in writing, and while the question admits of two opinions, we think the writing itself was the highest and best evidence of the demand, and should have been produced or accounted for, notwithstanding the company’s agent answered it verbally by a refusal on the part of the company, and said the plaintiff would have to bring suit. The evidence of Arnold touching demand and the response made thereto should have been ruled out.

5. Inasmuch as the plaintiff made his journey earlier than he would have made it if the company had delivered to him, with due diligence, the delayed message, he might recover, as a part of his damages, any excess of expense which was occasioned by making the journey at a time when it would not otherwise have been made. But this excess would be the limit of his recovery on this score. If he made it as cheaply as he would have made it had he waited until the time designated in the message, there was nothing upon which to base any recovery on account of expenses. Of course, if he had to repeat the journey and thus pay for two journeys instead of one, the whole expense of the- first might be. recoverable ; but nothing of this kind appears in the evidence. The sender of the message was the plaintiffs wife, and it was sent from Shelbyville, Tenn., to Atlanta, Ga. She seems to have been in Shelbyville both when she sent the message and when he arrived there in consequence of a previous message or appointment, and there is nothing tending to show that she did not inform him that the delayed message had been sent, and that his journey had been prematurely made. This being so, we can see no ground for charging the company with what he paid to hire a horse and buggy in Shelbyville to carry him to another point where the party was with whom he had business. The court erred in admitting evidence as to this item of expense.

The judgment refusing a new trial is reversed, with direction that if the plaintiff' will write off all his recovery except for the amount of the statutory penalty and the costs, then the judgment thus modified stand affirmed. Judgment reversed, with direction.