Cable Co. v. Fleischner.

and number of the sendee is not of itself negligence on his part, the company having accepted the message for transmission, and received the toll therefor, without the address being more specific than it was, and, so far as appears, without inquiring of the sender touching the street and number.

W. U. Tel. Co. v. Georgia Cotton Co., Supreme Court, August 14, 1894 (94 Ga. 444).

Where, at one of its minor offices, a telegraph company does not directly employ an agent of its own, but by some arrangement with a railroad company obtains the services of its agent in the business of sending, receiving and delivering telegraphic messages, the office hours established by the railroad company, if reasonable, are upon the same footing as if they were established directly by the telegraph company. Although the operator so employed may voluntarily, and as matter of accommodation, habitually return to his office after the office hours have expired, and in this way may be more attentive to the interests and wishes of the public than his duties require him to be, the company will not be bound to keep the office open on all occasions because the operator has done so habitually, on most occasions.

It is a question for the jury, and not for the court, to determine whether the condition of the operator's family, on a particular occasion, would justify him in closing his office and absenting himself therefrom somewhat earlier than usual; and, although he may have foreseen that his duty to his family would probably require him to do this on that occasion, it was not obligatory upon him, as matter of law, to forewarn the telegraph company, nor upon the company to employ a substitute for him at that time.

In the absence of a special contract to transmit immediately, or of an express request for information, it is not obligatory upon a telegraph company to acquaint a customer with the office hours of the company, at the point to which a message delivered by him for transmission is directed.

In W. U. Tel. Co. v. Jacob Michelson, Supreme Court, Apr. 30, 1894 (94 Ga. 436); W. U. Tel. Co. v. J. S. Howell, Supreme Court, Dec. 21, 1894 (95 Ga. 194); and W. U. Tel. Co. v. Louisa Lark, Supreme Court, June 10, 1895 (95 Ga. 806), the constitutionality of the statute imposing a penalty for failure to transmit and deliver telegrams was under consideration; and it was held that the interstate commerce provisions of the Federal Constitution were not infringed by said statute, although the acts of negligence complained of were committed in dealing with interstate messages, the acts of negligence happening entirely within the State.

In Abe E. Wolf v. W. U. Tel. Co., Supreme Court, April 9, 1894 (94 Ga. 434); J. R. Baldwin v. W. U. Tel. Co., Supreme Court, April 9, 1894 (93) Ga. 692); W. U. Tel. Co. v. J. H. Brightwell, Supreme Court, April 16, 1894 (94 Ga. 434); D. F. Chandler v. W. U. Tel. Co., Supreme Court, July VOL. V-54.

Cable Co. v. Fleischner.

23, 1894 (91 Ga. 442); R. L. J. Smith v. W. U. Tel. Co, Supreme Court, July 22, 1894 (94 Ga. 441); W. U. Tel. Co. v. Mrs. J. H. Ryals, Supreme Court, August 20, 1894 (94 Ga. 336); William C. Durant v. W. U. Tel. Co., and W. A. Rogers v. W. U. Tel. Co., Supreme Court, Aug. 20, 1894 (94 Ga. 442); J. E. Mathis v. W. U. Tel. Co., Supreme Court, Aug. 31, 1894 (94) Ga. 338); J. L. Walker v. W. U. Tel. Co., Supreme Court, Oct. 22, 1894 (95 Ga. 526); and Randall Davis v. W. U. Tel. Co., Supreme Court, Nov. 12, 1894 (95 Ga. 520), the questions decided were peculiar to the statute imposing penalty, which has been since repealed. See 4 Am. Electl. Cas., p. 861, note.

In W. U. Tel. Co. v. J. W. Watson, Supreme Court, July 30, 1894 (21 S. E. Rep. 457), the only question was one of damages for delay in the transmission of a commercial telegram.

INDIANA.

W. U. Tel. Co. v. Henry Stratemeier, Appellate Court, Jan. 11, 1895 (11 Ind. App. 601).

A verdict for $500 for mental anguish, caused by the failure to deliver a message notifying plaintiff's daughter of the death of her brother, is not excessive.

W. U. Tel. Co. v. Edward Bierhous et al., Appellate Court, Feb. 23, 1895 (12 Ind. App. 17), is the same case which, on the former appeal, is reported 4 Am. Electl. Cas. 708. The sole question upon the second appeal was one of pleading and burden of proof.

IOWA.

A. M. Garrett v. W. U. Tel. Co., Supreme Court, May 15, 1894 (58 N. W. 1064). This was the second appeal, the opinion upon the decision of the first appeal having been reported in 3 Am. Electl. Cas., p. 657. The chief question under consideration was as to the measure of damages. NEBRASKA.

In W. U. Tel. Co. v. Bridget Mullins, Supreme Court, Apr. 5, 1895 (44) Neb. 732), certain declarations of an agent of the telegraph company were held to be beyond the scope of his employment, and so not binding upor the company, and certain damages not proper, since the expense allowed for was not a probable result of the negligence of the company.

NORTH CAROLINA.

Z. V. Walser v. W. U. Tel. Co., Supreme Court, Apr. 10, 1891 (114 N. C. 440).

Question of damages for failure to deliver telegram.

PENNSYLVANIA.

Ferguson v. Anglo-American Tel. Co., Common Pleas, No. 2, Philadelphia County (16 Pa. Co. Ct. Rep. 101).

The measure of damages for delay in delivering a cipher telegram is the sum paid for its transmission.

Cable Co. v. Fleischner.

TEXAS.

W. U. Tel. Co. v. John B. Houghton, Court of Civil Appeals, Apr. 4' 1894 (26 S. W. Rep. 448).

Verdict for $2,000 damages not set aside as excessive, the evidence showing utter absence of diligence in transmitting and delivering a telegram calling plaintiff home because of the sickness of his son, by reason of the non-delivery of which he did not reach home until after his son's death. Telegram sent by wife to husband, the plaintiff.

W U Tel. Co. v. Hill, Court of Civil Appeals, April 5, 1894 (26 S. W. Rep. 252).

Verdict for $500 for delay in delivering telegram announcing death of brother of addressee, plaintiff, whereby he was prevented from attending the funeral, held, not so excessive that it will be set aside.

Telegraph company, defendant, not allowed to prove its office hours, at terminal office, it appearing that the operator to whom the message was given for transmission said it would be delivered that night.

W. U. Tel. Co. v. Joseph Kendzora, Court of Civil Appeals, April 18, 1894 (26 S. W. Rep. 245).

Husband may recover for mental anguish caused by his wife's being deprived of medical attendance in her last illness, due to failure of telegraph company to deliver a telegram summoning a physician.

W. U. Tel. Co. v. L. Hearne, Court of Civil Appeals, April 25, 1894 (26 S. W Rep. 438).

Questions of evidence and instructions to jury in action against telegraph company occasioned by a mistake in transmitting a business message.

W. U. Tel. Co. v. Frank Thomas et al., Court of Civil Appeals, Apri 25, 1894 (26 S. W. Rep. 117).

Questions of evidence.

W. U Tel. Co. v. Henry A. Linn, Supreme Court, April 26, 1894 (87 Tex. 7).

Stipulation as to repetition of messages will not relieve telegraph company against negligence of its servants.

Damages not allowed for mental distress in case where the delayed message announced the sickness of a sister of the plaintiff, addressee, it appearing that he could not have reached where she was in time to attend her funeral, if the message had been promptly delivered.

W. U. Tel. Co. v. Jennie Porter, Court of Civil Appeals, May 3, 1894 (26 S. W. Rep. 866).

Extract from head note:

Where a telegram announces sickness, it is the duty of the company's agents to inquire about the relationship of the parties if they desire such information; and, in an action for failure to deliver such message, the petition is no defective for failure to aver that the relationship

Cable Co. v. Fleischner.

was known to defendant when the telegram was delivered.

Positive testimony that plaintiff's absence from the bedside of her dying sister caused her mental anguish is not required, but it is sufficient if this fact may be inferred from the evidence.

Damages in the sum of $1,000 for failure to deliver a message summoning plaintiff to the bedside of her dying half-sister will not be set aside as excessive, though no great degree of affection is shown to have subsisted between the sisters, and though plaintiff could have reached her sister's bedside but a short time before she became entirely unconscious, and though plaintiff attended her funeral, in response to another telegram. E. B. Carver v. W. U. Tel. Co., Court of Civil Appeals, May 8, 1895 (31 S. W. Rep. 432).

Head note):

Where a telegraph company, with notice of the importance of a message directing the purchase of cattle, fails to deliver it, and there is a subsequent permanent advance in the price of cattle, the company will be liable to the sender for the loss sustained by purchase of cattle at the advanced price.

W. U. Tel. Co. v. James Elliott, Court of Civil Appeals, May 9, 1894 (7 Civ. App. 482).

Stipulation as to unrepeated messages held to protect the company in given case, the name of the addressee having been changed in transmission. W. U. Tel. Co. v. W. G. Thompson, Court of Civil Appeals, May 15, 1895 (31 S. W. Rep. 318).

((Head note):

Where a telegraph company has received a message directed to one person in the care of another, and has tendered it to the person in whose care it was sent, his refusal to receive the message releases the company from liability to the addressee for its non-delivery.

W. U. Tel. Co. v. Mrs. S. J. Fore, Court of Civil Appeals, May 16, 1981 (26 S. W. Rep. 783).

(Head note):

A plaintiff who is neither the sender nor the receiver of a telegram cannot recover damages for delay in transmission where there is nothing either in the message itself or in the directions given to the telegraph agent to indicate that the message was sent for plaintiff's benefit.

W. U. Tel. Co. v. Reeves & McGlasson, Court of Civil Appeals, June 13, 1894 (27 S. W. Rep. 318).

Stipulation as to repetition of messages held to be waived, it appearing that the sender, sometime after presenting the message, suggested to the operator that it be repeated, and was told that this would be useless as the message had gone through "all right.”

W. U. Tel. Co. v. J. B. Henry, Supreme Court, June 18, 1894 (87 Tex. 165). Comp aint held insufficient to support judgment by default for mentai suffering.

Cable Co. v. Fleischner.

W. U. Tel. Co. v. Motley, Supreme Court, May 24, 1894 (87 Tex. 38.) Recovery of damages for mental distress for delay in delivering telegram announcing illness of father of addressee and his impending death, it appearing that if the message had been duly delivered she could not have been present at the funeral, held, improper.

W. U. Tel. Co. v. John A. Stone, Court of Civil Appeals, June 20, 1894 (27 S. W. Rep. 144).

To the same effect as last above.

W. U. Tel. Co. v. Frank J. Williford, Court of Civil Appeals. June 21, 1894 (27 S. W. Rep. 700).

Measure of damages for failure to deliver telegram, whereby opportunity to sell property was lost, is the difference between market value at the place and time and the price for which they could have been sold.

in action for failure to deliver telegram, it being shown that the origina message had been lost or destroyed, secondary evidence of its contents is admissible.

W. U. Tel. Co. v. J. W. Teague, Court of Civil Appeals, Sept. 19, 1894 (27 S. W. Rep. 958).

The fact that the place of address is outside the free-delivery limits does not relieve the company for failure to deliver a message which it has under taken to deliver.

W. U. Tel. Co. v. Jules De Jarles, Court of Civil Appeals, Sept. 20, 1894. (27 S. W. Rep. 792).

Though the ad Iressee of a telegram is not at the place named, the company should not simply leave the telegram at that place, but must use reasonable diligence to find the addressee.

In action for delay in delivering telegram announcing death of addressee's child, damages for mental distress caused by his failure to see the child before its body was decomposed, may be allowed.

W. U. Tel. Co. v. George May and Wife, Court of Civil Appeals, Sept. 26, 1894. (27 S. W. Rep. 760).

Adresssee may recover for mental anguish caused by delay of message p venting his seeing his mother before her death.

Notice of claim for damages, required by stipulation to be given to the c many, may be given to the agent of a foreign telegraph company at the terminal office.

Company may establish reasonable hours for delivery of telegram, and ot liable for failure to deliver after such hours, though sender not notified of them.

W. U. Tel. Co. v. A. C. Johnson, Court of Civil Appeals, Oct. 10, 1894 (28 S. W. Rep. 124).

Quest ons of charge to jury with reference to recovery for mental distress.