Wilson v. Western Union Telegraph Co.

EvaNS, J. (After stating the facts.) In support of the judgment sustaining the demurrer, it was urged that in no case can an addressee recover of a telegraph company damages resulting from a negligent delivery of the message. The ease of Brooke v. W. U. Tel. Co., 119 Ga. 694, is cited to sustain this contention. This case was not decided by a full bench, and therefore is not conclusive of the question. The present action is not based on contract, but is founded on a breach of duty owing by the telegraph, company to the addressee. The writer thinks that both on principle and authority an addressee of a telegram may recover of a telegraph company damages for injury proximately caused by its negligent delay in delivery. But it is not necessary to pass on this question; for, conceding the right of the addressee to recover damages in a proper case, the petition does not set forth a cause of action. Where a breach of duty is alleged, the addressee can not recover compensatory damages unless the facts show an injury proximately [134] resulting from the tortious act. The plaintiff does not allege a binding contract between himself and the Bridge and Construction Company, but only an understanding that the bridge company could procure his services, when wanted, at a stated salary. The telegram, in connection with his averments on this subject, would not evidence a closed deal. The telegram was interrogative. Suppose it had been promptly delivered and the addressee had replied in the affirmative. Still there would have been no contract between the bridge company and the plaintiff. All the transaction could amount to would be an inquiry as to the preparedness and willingness of plaintiff to work with the bridge company, at that particular time. The bridge company was under no obligation to hire the plaintiff, even had the company received a prompt affirmative response to its telegraphic inquiry. This being so, the plaintiff had no contract with the bridge company, and it can not be presumed that it would have made one had the telegram been promptly delivered. The failure to get employment with the bridge company was not proximately caused by the delay in the delivery of the telegram. See Clay v. W. U. Tel. Co., 81 Ga. 285; Richmond Hosiery Mills v. W. U. Tel. Co., 123 Ga. 216; W. U. Tel. Co. v. Watson, 94 Ga. 202. In W. U. Tel. Co. v. Hines, 96 Ga. 688, it appeared that the plaintiff had an understanding with his former employer that should the latter secure a contract then in contemplation, the former was to return and engage in the same work under the new contract, until it was completed, at a certain salary. His employer secured the contract and telegraphed him: “Have work, come at once.” This telegram would have closed the contract with the plaintiff’s former employer, and it was accordingly held' that the telegraph company was liable to the plaintiff in such damages as arose from its negligence in failing to deliver the message to him in due time. The dissimilarity in the facts of this case and the one in hand is glaringly apparent. The allegations set out in the plaintiff’s petition did not entitle him to recover compensatory damages for the injury alleged to have been sustained. Judgment affirmed. All the Justices concur, except Beck, J.y who did not preside.