Hill v. Western Union Telegraph Co. , 85 Ga. 425 ( 1890 )

Bleckley, Chief Justice.

It was certainly a gross error to substitute $6.25 in the dispatch delivered, by. the company for $250.00 in the dispatch as sent. Such an error unexplained is ample evidence not only of negligence, but of gross-negligence. The motion for a nonsuit which the court granted was based on the single ground that no demand or claim for damages had been made in writing within 60 days, as required by the rules and regulations of the • company printed on the blank upon which the message was sent.

1. The rule referred to was in these terms: “ The company will not be liable for damages in any case where the claim is not presented in writing within 60 days after sending the message.” This was printed in small type at the head or top of the written message. And lower down on the same page were the words, also in small type : “ Send the following message subject to the above terms, which are hereby agreed to.” At the bottom of the page were the words, in large ^ type: “ Read the notice and agreement at the top.” The point was made in argument that the rule as to the mode and time of presenting a claim, for damages was not obligatory upon the sender of the message, because not agreed to by him, nor even known to him, according to the evidence, until after this suit was brought. According to the weight of authority in like or analogous cases, he could by reasonable diligence have been aware of this rule, and by writing and signing the message on the same page upon which the rule was set forth, he signified to the company both his knowledge of it and his assent to it. Breese v. W. U. Tel. Co. 45 Barb. 274, affirmed in 48 N. Y. 132, s. c. 8 Am. Rep. 526; Redpath v. Id., 112 Mass. 71, s. c. 17 Am. Rep 69; Grinnell v. Id., 113 Mass 299, s. c. 18 Am. Rep. 485; W. U. Tel Co. v. Carew, 15 Mich. 525; Womack v. W. U. Tel. Co., 58 Tex. 176, s. c. 44 Am. Rep. 614; W. U. Tel. Co. v. Edsall, 63 Tex. 668; Beasley v. W. U. Tel. Co , 39 Fed. Rep. 181; Notes to Gillis v. Id., 4 Lawyers Rep. An. 611; 2 Shearman & Redfield on Negl. 552.

2. It is also insisted that the rule is unreasonable and for that i’eason not obligatory. We, however, think it reasonable, and many other courts have so considered it. Greenhood Pub. Pol. 507; 2 Thomps. Negl. 846, 9; Wolf v. W. U. Tel. Co., 62 Penn. 83; Young v. Id., 65 N. Y. 173; Heimann v. Id., 57 Wisc. 562; Cole v. Id., 33 Minn. 227; W. U. Tel. Co. v. Meredith, 95 Ind. 93; Id. v. Jones, lb. 228; Id. v. Yopst, 118 Ind. 249; Massengale v. W. U. Tel. Co., 17 Mo. Ap. 257; Beasley v. Id., 39 Fed. Rep. 181. For analogous cases, see Express Co. v. Caldwell, 21 Wall. 264; Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386; Brown v. Ins. Co., 24 Ga. 97; Underwriters’ Agency v. Sutherlin, 55 Ga. 266; Greenhood Pub. Pol. 505.

But while we are of opinion that the telegraph company was entitled to have the claim for damages presented in writing within 60 days after the message was sent, we think that right could be waived, and that the evidence in the record tended to prove that it was waived, not indeed as to the time, but as to the mode of making the demand. The evidence indicates that, if any damage was sustained, it occurred in February, 1889, immediately after the telegram was sent. Wright, the sender of the message, who acted as agent and attorney for Hill, the plaintiff, testifies that about three weeks after the damage occurred, he went to Woodruff, the manager of the company’s business at Nome, and told him that Hill had been damaged four or five hundred dollars, and that the company would have to pay Hill for the same. Woodruff said to wait awhile, and he would investigate and find where the blame rested. In about two weeks thereafter, Wright met Woodruff and asked what the company would do about it. Woodruff replied that the company was not to blame, and that Hill would have to look to the operator in Cedartown for the damages. That it was competent to make the demand upon the agent of the company on duty at the place from which the telegram was sent, was ruled by this court in W. U. Tel. Co. v. Blanchard, 68 Ga. 299. The agent was not bound to recognize an oral demand. But if he did so, making no objection to it on the ground that it was not in writing, we think it was sufficient. So far from presenting this objection, the agent requested time for investigating the merits of the claim, and after investigating, put the company’s refusal to pay, not upon any want of sufficiency in the demand, but upon the non-liability of the company. According to a report which appears in 11 N. E. Rep. 16, the Supreme Court of Indiana ruled, in the case of W. U. Tel. Co. v. Yopst, that a waiver of written demand resulted from a refusal to pay, put by the agent on the ground that the contract to send and deliver the telegram was illegal because made on Sunday. Though we find the case reported la'.er, we have been unable to discover it in the Indiana Beports as decided on March 18th, 1887, and reported in the book above referred to. Nevertheless we think the decision upon this question of waiver is sound on principle, and embodied a good exposition of Georgia law, whether it does so of Indiana law or not. To reach this holding, it is not necessary to differ from the St. Louis Court of Appeals in Massingale v. W. U. Tel. Co., 17 Mo. Ap. 257. In that case it was held that the oral promise of a general agent of a telegraph company to look into the matter was not a waiver of the condition requiring a demand to be made in writing. Here the matter was looked into, a decision made and the result communicated.

The court erred in not submitting the case to the jury an d in granting a n on suit. Judgment reversed.