Chandler v. Western Union Telegraph Co. , 94 Ga. 442 ( 1894 )

The declaration was against both the telegraph company and the railway company. It alleged, as to each, that it was a corporation with a line of wires partly in this State, engaged in telegraphing for the public, and having an office and agent in the county wdiere the suit was brought; and that they were liable to plaintiff for the statutory penalty, for that: He delivered to the telegraph company, during usual office hours on July 20, at Harmony Grove, an office and station, a paid message to wit: “To L. P. Sims, c/o postmaster, Jug Tavern, Ga., via Athens, Ga. One of the twin babies dead; "bury to-morrow three o’clock. D. P. Chandler.” Such message so delivered was never transmitted. About noon on July 21, a message was delivered to the postmaster at Jug Tavern, Ga., in these words : “L. P. Sikes, ■c/o postmaster, Jug Tavern, Ga.. One of the twin babies died; bury to-morrow three o’clock. P. T. Chandler.” Jug Tavern is located on the line of the railway company, and the delivery of said message was made by said company at Jug Tavern. The telegraph company is liable for having failed to faithfully and correctly transmit the message delivered to it by plaintiff'; and the railway company is liable for its telegraph agent having failed to deliver any message in time, etc. Demurrers were filed by each defendant, and that of the railway company was sustained on the ground that it was improperly joined as a defendant with the telegraph company. Upon intimation that the declaration failed to set forth a cause of action, plaintiff' offered to amend 'by alleging that defendant did not transmit and deliver said message with impartiality and good faith and with due diligence, nor did it ti’ansmit the same at all; and by striking from the declaration all allegations as to any sort of transmission or delay. The amendment was disallowed, as settingup a new cause of action; and the demurrer of the telegraph company, for want of a-cause of action stated, was sustained. To each of the foregoing rulings plaintiff excepted. By cross-bill the railway company assigned error on the failure of the court to sustain that ground of its demun’er alleging-that no ground of action against it was set out.

Thomas & Strickland, by Harrison & Peeples, for plaintiff. Dorsey, Brewster & Howell, G. D. Thomas and Erwin & Cobb, for defendants.