Propeller Tow-Boat Co. v. Western Union Telegraph Co. , 124 Ga. 478 ( 1905 )

Cobb, P. J.

The telegram which has given rise to this controversy was sent by the Lighterage Company to the captain of the schooner “Hilda.” The Lighterage Company, in so sending the telegram, acted as the agent of the Tow-Boat Companjq the latter being an undisclosed principal. There is no question about the right of an undisclosed principal to sue a telegraph company for negligence in the delivery of telegrams. “The governing principle is that an undisclosed principal, as the ultimate party in interest, is entitled, .against third persons, to all advantages and benefits of such acts and contracts of his agent, and consequently that he may sue in his own name on such contracts. Story, Ag. §418.” Dodd Grocery Company v. Postal Telegraph Company, 112 Ga. 685; and see cases cited. The judge in the court below based his ruling, sustaining the demurrer to the petition, upon the ground that before recovery could bp had of the Telegraph Company the plaintiff must show itself to have been under a legal obligation to pay the amount of demurrage to the Lighterage Company which it now seeks as damages arising from the failure of the Telegraph Company to deliver promptly the message sent over its line. Under this test the plaintiff made out a case. The charter-party provides: “It is agreed that the lay-clays for loading shall he as follows: six (6) days. And that for each and every clay’s detention by default of said party of the second part, or agent, $56.00 per clay shall he paid by said party of the second part, or agent, to said part&of the first part, or agent.” The Telegraph Company, after its acceptance of the message for transmission, became the agent of the Tow-Boat Company. Its negligent failure to deliver the telegram was the negligent act of its principal, so far as the Lighterage Company was concerned. See Western Union Tel. Co. v. Lumber Co., 114 Ga. 580; Western Union Tel. Co. v. Shotter, 71 Ga. 760; Brooke v. Western Union. Tel. Co., 119 Ga. 694. Had the Lighterage Company sued the plaintiff in this case for the demurrage justly clue it, the plaintiff could not have escaped liability under cover of the Western Union Telegraph Company's negligence.

It was said that the damages were too remote. In the case of Western Union Tel. Co. v. Patman, 73 Ga. 285, tbe court held that, the commissions a ship broker would have made by securing a vessel were proper damages for the non-delivery of a telegram. Mr. Chief Justice Jackson said: “The damages arc said to be too remote. 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.” And in the case of Walden v. Western Union Tel. Co., 105 Ga. 275, where a shipment of guano was ordered by wire, and it appeared that the intending purchaser had contracted with other' parties for the salé of such guano, the non-delivery of his telegram, which prevented the shipment to him of the guano, gave rise to an action for damages, in which the measure was the amount he would have earned had he been able to carry out his contract for the sale' of the guano. <

Counsel for the defendant relies upon the eases of Georgia Railroad v. Hayden, 71 Ga. 518, and White v. Blitch, 112 Ga. 775, as authority to show that the damages claimed in the present case were too remote and speculative to be the basis of a recovery. We think, however, that these cases are distinguishable from the case at bar. In the case first referred to, stress was laid upon the fact that the railway company was ignorant of the peculiar character of the business of the traveler, and there was nothing in the case to put the company upon notice that a delay of the train upon which the traveler was riding would occasion a loss to him. In the second case cited, damages were claimed for a failure to furnish machinery for ginning cotton in thorough repair and machinery suitable for ginning a crop of a given year, the damages claimed being the diminution in the market value of cotton; and it was held that the pleading which set up this damage did not set forth sufficient facts from which it could be determined whether or not such damages had been sustained, even if they were legally recoverable. And as to whether the damages claimed for the rotting of a portion of the cotton and the decrease in weight were recoverable, it was said that it could not be reasonably claimed they were sustained because of the plaintiff’s failure to comply with his undertaking, and it was further said there were no sufficient facts set forth in the pleading to show that the conclusion stated therein was correct. It is to be noted in reference to these cases that neither was decided by a full bench, the first being decided by two Justices and the last by five Justices,

Judgment reversed.

All the Justices concur.