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and that his wife and three minor children are beneficiaries; that both his wife and himself signed the deed to Elliott to this land, February 29, 1884; and that the latter paid the consideration mentioned, one thousand dollars, for it. Verdict for plaintiffs for a homestead interest in the premises, and against Elliott for two hundred dollars rents for the years 1885, 1886, 1887, 1888, and that defendants deliver to plaintiffs the rent potes for 1889. A motion for a new trial was overruled, and defendants excepted and appealed.
J. P. Shannon, J. J. Strickland, D. W. Meadow, and Harrison and Peeples, for the plaintiffs in error.
McCurry and Proffitt, for the defendants in error.
BLECKLEY, C. J. 1. The plea that the defendant Elliott had purchased the premises, paid their full value, and that the amount thus paid had been enjoyed by the beneficiaries of the homestead, was not restricted to the mesne profits, but was set up as a defense to the whole action. The homestead provided for by the constitution of 1868 was unlike the exemption which the constitution of 1877 provides for. The former embraced realty as such, and personalty as such; whereas, the latter may, as to the whole value exempted, cover one or the other, or both, indifferently. In the scheme of the former, money paid for land unlawfully sold would not take the place of the land, -certainly not unless invested in land and still held in that form. But money would pay rent, and we think it might be set off against mesne profits of the homestead land, if the family got the benefit of the money paid by Elliott as purchase-money. Though the plea was properly stricken because it sought to bar the action instead of merely resisting the collection of mesne profits, we direct that the recovery of mesne profits be opened, if the defendants shall, when the remittitur is returned and entered, plead this matter as against mesne profits alone. If they fail to do this promptly, this direction will count for nothing. Of course they must prove, as well as plead, in order to make the set-off effectual.
2. The plea which sought to estop the wife by her deed and warranty was no defense as against her interest in the homestead. She may be liable upon the warranty, but if so, her liability thereon could not be enforced, directly or indirectly, against her homestead interest. Nothing of the sort was attempted in Amo8 v. Cosby, 74 Ga. 793. In that case the action was on the warranty itself, the breach of which consisted in not protecting the land against encumbrances superior to the homestead right. No point was made on the validity of the sale and conveyance of the homestead property. Here the point is made, and surely the wife's warranty that she, in connection with her husband, had the right to sell, would neither create the right nor bar her from denying its existence. If it would, the whole scheme of our law in restraining and regulating the sale of homestead and exempt property would be
3, 4, 5. The head-notes complete the opinion. Judgment affirmed, with direction.
HOMESTEAD – ALIENATION BY DEED. — No operative conveyance or effect ual release of the homestead can be made, unless the mode pointed out by the statute is pursued by reasonable strictness: Sharp v. Bailey, 14 Iowa, 387; 81 Am. Deo. 489; note to Poole v. Gerrard, 65 Am. Deo. 482-489. Compare noto to Al v. Banholzer, 12 Am. St. Rep. 683_686; Lubbock v. McMann, 82 Cal. 226; 16 Am. St. Rep. 108, and nota.
HILL V. WESTERN UNION TELEGRAPH COMPANY.
[85 GEORGIA, 425.) TELEGRAPH COMPANIES - ASSENT OF SENDER OF MESSAGE TO CONDITIONS
IN BLANK. — The sender of a telegraphic message who writes the same upon a blank which has printed upon it a condition that "the company will not be liable for damages in any case, where the claim is not presented in writing within sixty days after sending the message,” is
chargeable with knowledge of, and deemed to assent to, such condition. TELEGRAPH COMPANIES – WAIVER OF CONDITION BY AGENT. - A deinand
for damages for mistake in the transmission of a telegraphic message is properly made upon the agent on duty at the place from which the message was sent, and though he is not bound to recognize an oral demand, still, if he does 80, and makes no objection to it on the ground that it is not in writing, but objects to it on the sole ground that the company is not at fault, he thereby waives, on the part of the company, any right to have the demand made in writing, according to the condition attached to the message as sent ACTION to recover damages for mistake on the part of the telegraph company in transmitting a message.
Wright and Harris, for the appellant.
BLECKLEY, C. J. It was certainly & gross error to substitute $6.25, in the dispatch delivered by the company, for $250 in the dispatch as sent. Such an error, unexplained, is ample evidence, not only of negligence, but of gross negligence. The motion for a nonsuit which the court granted was based on the single ground that no demand or claim for damages had been made in writing within sixty days, as required by the rules and regulations of the company printed on the blank apon which the message was sent.
1. The rule referred to was in these terms: “ The company will not be liable for damages in any case where the claim is not presented in writing within sixty days after sending the message." This was printed in small type at the head or top of the written message. And lower down on the same page were the words, also in small type: “Send the following message subject to the above terms, which are hereby agreed to." At the bottom of the page were the words, in large type: "r Read the notice and agreement at the top.” The point was made in argument that the rule as to the mode and time of presenting a claim for damages was not obligatory upon the sender of the message, because not agreed to by him, nor even known to him, according to the evidence, until after this suit was brought. According to the weight of authority in like or analogous cases, he could, by reasonable diligence, have been aware of this rule, and by writing and signing the message on the same page upon which the rule was set forth, he signified to the company both his knowledge of it and his assent to it: Breese v. United States Tel. Co., 45 Barb. 274; affirmed in 48 N. Y. 132; 8 Am. Rep. 526; Reilpath v. Western Union Tel. Co., 112 Mass. 71; 17 Am. Rep. 69; Grinnell v. Western Union Tel. Co., 113 Mass. 299; 18 Am. Rep. 485; Western Union Tel. Co. v. Carew, 15 Mich. 525; Womack v. Western Union Tel. Co., 58 Tex. 176; 44 Am. Rep. 614; Western Union Tel. Co. v. Edsall, 63 Tex. 668; Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181; notes to Gillis v. Western Union Tel. Co., 4 Lawyers' Ann. Rep. 611; 2 Shearman and Redfield on Negligence, 552.
2. It is also insisted that the rule is unreasonable, and for that reason not obligatory. We, however, think it reasonable, and many other courts have so considered it: Greenhood on Public Policy, 507; 2 Thompson on Negligence, 846, 9; Wolf v. Western Union Tel. Co., 62 Pa. St. 83; 1 Am. Rep. 387; Young v. Western Union Tel. Co., 65 N. Y. 163; Heimann v. Western Union Tel. Co., 57 Wis. 562; Cole v. Western Union Tel. Co., 33 Minn. 227; Western Union Tel. Co. v. Meredith, 95 Ind. 93; Western
Union Tel. Co. v. Jones, 95 Ind. 228; 48 Am. Rep. 713; Western Union Tel. Co.v. Yopst, 118 Ind. 249; Massengale v. Western Union Tel. Co., 17 Mo. App. 257; Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181. For analogous cases, see Southern Express Co. v. Caldwell, 21 Wall. 264; Riddlesbarger v. Hartford F. Ins. Co., 7 Wall. 386; Brown v. Savannah Mut. Ins. Co., 24 Ga. 97; Un derwriters' Agency v. Sutherlin, 55 Ga. 266; Greenhood on Public Policy, 505.
But while we are of opinion that the telegraph company was entitled to have the claim for damages presented in writing within sixty days after the message was sent, we think that right could be waived, and that the evidence in the record tended to prove that it was waived, not indeed as to the time, but as to the mode, of making the demand. The evidence indicates that if any damage was sustained, it occurred in February, 1889, immediately after the telegram was sent. Wright, the gender of the message, who acted as agent and attorney for Hill, the plaintiff, testifies that about three weeks after the damage occurred, he went to Woodruff, the manager of the company's business at Rome, and told him that Hill had been damaged four or five hundred dollars, and that the company would have to pay Hill for the same. Woodruff said to wait awhile, and he would investigate and find where the blame rested. In about two weeks thereafter, Wright met Woodruff, and asked what the company would do about it. Woodruff replied that the company was not to blame, and that Hill would have to look to the operator in Cedartown for the damages. That it was competent to make the demand upon the agent of the company on duty at the place from which the telegram was sent was ruled by this court in Western Union Tel. Co. v. Blanchard, 68 Ga. 299; 45 Am. Rep. 480. The agent was not bound to recognize an oral demand. But if he did so, making no objection to it on the ground that it was not in writing, we think it was sufficient. So far from presenting this objection, the agent requested time for investigating the merits of the claim, and after investigating, put the company's refusal to pay, not upon any want of suffi. ciency in the demand, but upon the non-liability of the company. According to a report which appears in 118 Indiana, 249, the supreme court of Indiana ruled, in the case of Western Union Tel. Co. v. Yopst, that a waiver of written demand resulted from a refusal to pay, put by the agent on the ground that the contract to send and deliver the telegram was illegal
because made on Sunday. Though we find the case reported later, we have been unable to discover it in the Indiana Reports as decided on March 18, 1887, and reported in the book above referred to. Nevertheless we think the decision upon this question of waiver is sound on principle, and embodied a good exposition of Georgia law, whether it does so of Indiana law or not. To reach this holding, it is not necessary to differ from the St. Louis court of appeals in Massengale v. Western Union Tel. Co., 17 Mo. App. 257. In that case it was held that the oral promise of a general agent of a telegraph company to look into the matter was not a waiver of the condition requiring a demand to be made in writing. Here the matter was looked into a decision made, and the result communicated.
The court erred in not submitting the case to the jury, and in granting a nonsuit.
TELEGRAPH COMPANIK — CONDITION AS TO THE PRESENTATION OF CLADY WITHIN A CERTAIN TIME. — The authorities all agree that the stipulation on the telegraph company's blank, that it will not bo liable for damages in any ease where the claim is not presented in writing within a certain number of days after sending the message, is valid and binding. Note to Camp v. Westo m Union Teh Co., 71 Am. Dec. 471.
CHATTANOOGA, ROME, AND
Rome, AND COLUMBUS RAILROAD COMPANY V. LIDDELL.
[85 GEORGIA, 482.) I POLIGENOB – EVIDENCE – In an action to recover damages against a rail.
road company for personal injury received through its negligence, evi. dence that plaintiff's nervous prostration in consequence of the injury had a weakening effect upon her system, and required the administra. tion of opiates, from which she was acquiring the opium habit; that she did not now and never will take the pleasure previously taken by her in her household duties; and that from the effects of the nervous prostration, she has no energy to work or to enjoy society, — is admissible, not as an element of damages, but as an index to the pain and suffering of
the plaintiff. EVIDENCE — DECLARATIONS AS PART OF RES GESTA – In an action against
railroad company to recover for personal injury, the declarations of the president of a construction company which was building and equipping the road, made two or three hours after the accident, and at another place, to a newspaper reporter, that it would be to his interest not to publish too much, that the road had been laid temporarily, that he had not had time to put the broad-gauge ties upon it, and that