Quaker City Fire v. Western Union Telegraph Co.

Parker, J. 1. A stipulation on the message blank of a telegraph company doing business in Georgia, that “The Company will not be liable for damages or statutory penalties in the case of any message . . where the claim is not presented in writing to the Company within sixty days after the message is filed with the Company for transmission,” is reasonable and valid, and one using the message blank containing the stipulation for filing a message agrees to such stipulation and is bound thereby. Hill v. Western Union Telegraph Co., 85 Ga. 425 (1, 2) (11 S. E. 874, 21 Am. St. R. 166); Western Union Telegraph Co. v. Waxelbaum, 113 Ga. 1017 (39 S. E. 443, 56 L.R.A. 741). The giving of such notice is a prerequisite to the bringing of an action for damages for failure to deliver the message, unless such notice be waived by the company. Western Union Telegraph Co. v. Fitts, 13 Ga. App. 248, 249 (79 S. E. 156). 2. Allegations in the petition, that a letter sent by the plaintiff to the defendant' after the filing of the message and within the 60-day period, requesting that the defendant furnish information that the message was delivered to the sendee, and that in a second letter sent also within the 60-day period, the plaintiff reminded the defendant of the first letter and its contents and stated: “in your letter of April 28 you advised that you were making an investigation, and just as soon as it had been completed you would give us a full report. We hope you are in position to give us this report,” do not show a notice to the defendant telegraph company sufficient to inform it that a claim is being made, against it. Such correspondence does not meet the requirement that “the claim must not only be in writing, but the message for the nonperformance or nondelivery or miscarriage of which damages are claimed must be identified, the negligence complained of must be stated,” and that “the telegraph company should be fairly informed of the nature and extent of the claimant’s demand. The claim itself should be filed;' and not merely notice of a claim be given.” Postal Telegraph Co. v. Moss, 5 Ga. App. 503, 513 (63 S. E. 590). 3. Where, under the allegations of the petition, one has filed a message for transmission by the' company as aforesaid, and thereafter communicates by mail with the telegraph company requesting that the company furnish evidence that the message was delivered to the sendee, and where the agent of the company replied by mail acknowledging receipt of the request, and stating that “an investigation has been started and just as soon as it has been completed we will give you a full report on the above matter,” and where later the company’s agent wrote, “We are pleased to advise that the above telegram was delivered promptly by telephone,” the petition does not show a waiver by the company of the contractual requirement that notice of a claim be given in writing • within 60 days, where the other allegations of the petition are otherwise insufficient to show an actual presentation of a claim, and some action by the telegraph company reasonably calculated to lead the plaintiff to believe that a claim would be acted, on without further formal presentation. *768 Decided February 17, 1949. Rehearing denied March 18, 1949. 4. The court did not err in sustaining the general demurrer and in dismissing the action. Judgment affirmed. Sutton, C. J., and Felton, J., coneur. *769 Smith, Partridge, Field, Doremus & Ringel, Ogden Doremus, for plaintiff. Farkas & Burt, for defendant.