Western Union Telegraph Co. v. Ford , 10 Ga. App. 606 ( 1912 )

Russell, J.

(After stating the foregoing facts.)

1. The first question which arises for decision is whether, under the evidence, the telegraph company was guilty of culpable negligence in delaying the transmission and delivery of the message to the physician at Moultrie. The determination of this issue depends almost entirely upon the relationship which Harrell, the agent of the South Georgia Railroad Company at Quitman, occupied towards the parties. Was he the agent of the defendant telegraph company in receiving the message from Dr. Odum, or was he the agent of the sender of the message, or was he in a sense the agent of both the telegraph company and the sender ? It is earnestly eon-tended by learned counsel for plaintiff in error that Harrell was not the agent of the Western Union Telegraph Company in any sense; that the evidence demanded the finding that he was solely the agent of the sender in receiving and sending this message to Jones, the operator of the Western Union Company at Quitman. We have given the evidence bearing on this point careful consideration, and we have come to the conclusion that Harrell occupied the dual capacity of agent of both the sender and the Western Union Telegraph Company in receiving and sending the message; that in so far as the transmission of'the message to the operator at Quitman to be sent to Moultrie is concerned, he was acting as the agent of the Western Union Telegraph Company. The undisputed evidence shows that in the absence of any telegraph station at Barney, Georgia, it was the custom for the agent of the South Georgia Eailroad Company at Barney to receive messages, and not only to collect a toll for the railroad company for sending the message to Quitman over its telephone wire, but also to collect for the telegraph company the toll due to it for the transmission of the message from Quit-man to its destination. In this case, in addition to this custom, it appears that Dr. Odum was specially directed by the operator of the Western Union Company at Quitman to send this message through the agent of the railroad company, by way of its telephone wire from Barney to Quitman, and to pay to this agent the .toll due for the message to be sent to Moultrie. The Western Union Telegraph Company, having thus authorized the agent of the railroad company to receive messages intended for it, and also to receive in its behalf pay for such messages, constituted the railroad agent its agent for these purposes. We think that under these facts the question of Harrell’s agency for the purpose of receiving the message for the telephone and telegraph companies was not issuable, and the court did not commit any error against the telegraph company in submitting this question of agency, in a general way, to be determined by the jury. Harrell, therefore, being the agent of the telegraph company at Quitman, was under the duty to exercise reasonable and ordinary diligence in transmitting the message, when he received it, to the operator at the telegraph company’s office in Quitman. The evidence as to when Harrell received the message from Dr. Odum is in conflict. Harrell testified positively, refreshing his recollection by a memorandum on the carbon copy of the message, that he did not receive the message from Dr. Odum until 10.20 o’clock Monday morning, and that he immediately called up the operator and informed him that he had the message, and requested him to send a messenger for it. Dr. Odum testified that he had transmitted over the telephone wire from Barney to Quitman the message to Harrell between 7 and 8.30 o’clock a. m., certainly not later than 10 o’clock Monday morning. This conflict in the evidence could only be determined by the jury. They had the right to accept as the truth the statement of Dr. Odum. Assuming, therefore, that Harrell received the message from Dr. Odum as late as 8.30 o’clock Monday morning, he was under a duty to use ordinary diligence in transmitting it to the operator at Quitman. The operator testified that he did not receive the message from Harrell until 10.30 o’clock. If Harrell received the message at 8.30 o’clock and delayed transmitting it to the operator at Quitman until 10.30, it was for the jury to say whether these two hours’ delay was unreasonable and negligent. It was also for the jury to determine whether the prompt performance of his duty by Harrell in transmitting the message to the operator at Quitman and the proper exercise of diligence on the part of the operator in transmitting the telegram to the addressee, Dr. Jerkins, at Moultrie, would have enabled the latter to receive it in time to have gotten out to the plaintiff’s home by 12 o’clock Monday, July 5. Moultrie is only 36 miles from Quitman. Unquestionably, if the message had been received by Harrell at 8.30, and he had at once transmitted it to the operator at Quitman, and fhe operator had used due diligence in transmitting it to the addressee at Moultrie, it would have been received in all probability before the office at Moultrie had closed on account of the legal holiday. If Dr. Jerkins had received the dispatch at 10 o’clock, according to his evidence he would have gorfe immediately to the home of the plaintiff, and would have reached her in an hour or so; and if he had reached her before twelve o’clock on that day, according to his opinion as.an expert, there was a reasonable probability that by treatment he could have saved the plaintiffs eye. It is insisted that neither Harrell nor the operator at Quitman knew of the urgent character of the message, or of the critical situation of the plaintiff and the 'necessity for prompt transmission and delivery; and this view is sustained, so far as the operator is concerned, although there is some evidence that Harrell had been urged by Dr. Odum to send the message promptly. We do not think, however, that this makes any material difference. Even without any knowledge of the urgent character of the message, it was a question for the jury to determine, under the evidence, whether the agents of the Western Dnion Telegraph Company at Quitman exercised ordinary diligence in sending the message which they had received, regardless of any knowledge of its urgency; and we are not prepared to hold that the jury would not be authorized to find that the dela3r of over two hours in transmitting the message from Quitman to Moultrie was an unreasonable and culpable delay. We therefore conclude that the jury were authorized, on this branch of the case, to find that the defendant telegraph company, through its agents, did not exercise ordinary diligence in transmitting and delivering the message to Dr. Jerkins, the physician at Moultrie, and that this delay prevented the physician from giving prompt medical treatment to the eye of the plaintiff.

What is said renders unnecessary any discussion of the sixth ground of the amended motion for a new trial.

2. The second question for determination is not free from doubt and difficulty. Was the negligent delay of the telegraph company in transmitting and delivering the telegram to the physician, whereby he was prevented from earlier attendance on the patient and medical treatment of the eye, the proximate cause of the loss of the plaintiff’s eye ? The general rule is that there must be some direct and proximate connection between the negligence or wrong-done and the physical injury«suffered, to warrant a recovery in damages, and this causal connection must be proved b3|" facts based upon direct testimony, or the opinion of experts, and must not depend upon conjecture or guesswork. In this case there could be no-recovery under the law, unless the evidence shows that it was reasonably probable that the plaintiff would not have lost her eye-had the doctor reached her. in time, after promptly receiving the telegram, and by proper treatment could then have saved the dye; and this evidence must have such probative value as to produce a reasonable conviction without resorting to mere conjecture, inconclusive inferences, or bare possibilities. Western Union Telegraph Co. v. Ford, 8 Ga. App. 514 (70 S. E. 65). It seems to us that sections 4509 and 4510 of the Civil Code (1910) embody, in a comprehensive statement, the rule-of law on this subject: “If the damages are only the imaginary or possible result of the tortious act, or other and contingent circumstances preponderate largely in causing the injurious effect, such damages are too remote to be the basis of recovery against the wrong-doer.” “Damages which are the legal and natural result of the act done, though contingent to some extent, are not too remote to be recovered. But damages traceable to the act, but not its legal or material consequence, are too remote and contingent.” As pointed out by Judge Powell in discussing the question in Glawson v. Southern Bell Tel. Co., 9 Ga. App. 455 (71 S. E. 747), the courts of this country are in wide disagreement as to whether damages which result through the failure to get a physician, so that the progress of a malady can be cheeked or the effects of a wound can be allaj^ed, and injurious results prevented, are speculative and remote, within the meaning of the rules just quoted. Some courts go almost to the extent of holding that it is impossible, from a human standpoint, to say what would be the result of' a physician’s services in checking almost any known disease, or of relieving almost any imaginable physical hurt or injury. And in that case this court, following the rule laid down in the Ford case, supra, accepts the doctrine that the question is to be determined by the jury, and that in determining this question they can accept the opinion of experts.

If the jury in the present ease were authorized to believe, from the testimony of Dr. Jerkins, that he could have saved the plaintiff’s eye if he had reached her Monday morning by 12 o’clock, or if there was a reasonable probability that he could have saved her eye at that time by proper treatment, the standard of proof laid down by both the Ford and Glawson cases, supra, was reached. The evidence of Dr. Jerkins is not entirely satisfactory on this point, but, taking his evidence all together, we can not say that the hypothesis that he would probably have saved her eye if he had reached her in time is not fairly deducible. He testified that if he could have seen and treated the eye before 12 o’clock Monday, there would have been a reasonable probability that he could have saved it; and, from his opinion and experience as an expert, he states that 70 per cent, of eyes affected like this eye was, provided a physician could get to them and treat them within ten or twelve hours after the occurrence of the first premonitory symptoms of corneal ulcer appears, could be saved. Of course, he was not positive that he could have saved this eye even if he had reached it early Monday morning. In the very nature of things he could not have been positive. This standard of proof is not possible to be reached in such cases, and we are compelled to make a decision within the limitations of human fallibility; and while, as stated, we are not entirely satisfied as to the character of the proof on this branch of the ease, yet we do not feel that we would be justified in setting-aside a verdict of the jury, under this evidence, which was approved by the trial judge. In other words, we can not say, as a matter of law, that the question is one purely problematical and speculative, and unless there is some prejudicial error in the conduct of the trial, we will leave the solution of this issue where the law places it, in the hands of a fair, impartial, and intelligent jury.

3. Error is assigned upon the ruling of the court in admitting in evidence the testimony of Dr. Jerkins as follows: “What percentage of eyes are saved, affected like this eye was, provided you get to them say within 10 or 12 hours after you feel the sharp pain that occurs ?” The reply to this question was that the average would be 70 per cent. This evidence was objected to, on the ground that it was a matter of hearsay and not relevant to the issues in the case. Certainly the question was relevant to one of the two controlling-issues in the case, and we think it was within the province of expert testimony. If based upon the experience of the witness as an expert, it would be admissible for that reason. If it was based upon the concensus of opinion of specialists, we think it would be admissible for that reason. The evidence is similar in character to that presented by statistics gathered by learned and experienced men, such as the average of life contained in mortality tables, and other kindred subjects.

4. At the conclusion of the plaintiff’s evidence a judgment of nonsuit was invoked, on the ground that the contract between the sender and the defendant company contained, as a condition precedent to a right of recovery, a stipulation that the claim should be filed by the plaintiff against the company within sixty days after the filing of the message, and there was no evidence that this claim had been filed as required by this condition of the contract. This objection was met by proof that the plaintiff had filed within the sixty days a suit for damages against the defendant company, in which her ease was fully set forth; that this suit was withdrawn, and subsequently, within the legal limitation, the present suit for the same cause of action was filed; and it is insisted by the plaintiff that this was equivalent to a compliance with this condition of the contract. In answer to this position it is contended by the plaintiff in error that the suit'first filed was not a compliance with this condition, and that certainly, when the suit was withdrawn or dismissed, it became functus officio, and was as though no claim had ever been made.

In our opinion the filing of this suit was a substantial compliance with this condition of the contract. Postal Telegraph-Cable Co. v. Morse, 5 Ga. App. 504 (63 S. E. 590). And we do not think that a subsequent temporary withdrawal of the suit destroyed the effect of the filing of the suit as a claim made against the company for damages. The first suit, filed within the sixty days from the time when the cause of action arose, had been served upon the company. They then had notice of the claim for damages, and the subsequent temporary withdrawal of the suit could not have taken away from the company the notice previously acquired by the filing and service of the suit.

5. The excerpts from the charge of the court, taken in connection with the entire charge, contain no material error. We think the charge as a whole clearly and distinctly instructed the jury that the standard of diligence required of the defendant company with reference to the transmission and delivery of the message was that of ordinary care, and we do not think that the jury could possibly have inferred,- from the excerpts set out and objected to, that any higher degree of diligence was required from the defendant than that of ordinary care. It was not necessary for the judge to define the words “ordinary care,” in the absence of a timely written request. They are self-explanatory, and it will be presumed that the jury understood the ordinary and common significance of these terms.

6. The assignments - of error on the failure of the court to charge that Harrell was the agent of the plaintiff, and not of the defendant telegraph company, are fully covered by the second division of the opinion. The failure of the court to define to the jury the legal meaning of the word “agency,” even if erroneous, was not harmful, in view of the fact that, as heretofore expressed in the opinion, the undisputed evidence demanded the finding that Harrell was the agent of the defendant company in receiving and transmitting the message to the operator at Quitman.

7. The failure to charge the jury on the right to keep its office closed on legal holidays was immaterial, under the facts of this case. The jury were authorized to believe that the question of legal holiday was not relevant. The message was received bjr the agent, Harrell, and, in the exercise of ordinary diligence, could (at least the jury would have been authorized to so infer) have been transmitted and delivered during the hours when the offices both at Quitman and Moultrie were kept open, under the rules of the company, on legal holidays. Besides, the company accepted the telegram on a legal holiday, and was under the duty to exercise ordinary diligence, after having accepted it, to transmit and deliver it to the addressee on that day, notwithstanding the fact that the day was a legal holiday.

8. It is contended in the last ground of the amended motion for a new trial that the court erred in not restricting the right of recovery to damages for a partial failure of vision, since Dr. Jer- ' kins’s testimony, considered most favorably for the plaintiff, only bore the construction that, even if he had reached the plaintiff in time, he could only have partially saved the vision of the eye. The evidence of Dr. Jerkins on this point is not entirely clear; but he does state that there was a reasonable probability that if he had reached the plaintiff in time, her vision would have been preserved. He does not say whether this preservation would have been partial or complete, and the jury were authorized to draw the latter inference from his evidence, taken as a whole. The issue was not so clearly and distinctly made as to have demanded from the court a pertinent charge, without a timely written request.

After giving the entire ease a most careful consideration, we fail to discover any error of such a material character as would warrant the grant of another trial.

Judgment affirmed. Pottle, J., not presiding.