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. *Page 768
4. The court did not err in sustaining the general demurrer and in dismissing the action.
Judgment affirmed. Sutton, C. J., and Felton, J., concur.
DECIDED FEBRUARY 17, 1949. REHEARING DENIED MARCH 18, 1949. Quaker City Fire and Marine Insurance Company sued Western Union Telegraph Company for $3000 damages, alleged to have resulted from the failure of the defendant to deliver a telegram filed with it in Americus, Georgia, for delivery in Sylvester, Georgia. It was alleged that, after the filing of the message with the defendant, and after the alleged loss was incurred as the result of the failure to deliver the message, the plaintiff wrote the defendant on April 27, 1948 as follows: "Gentlemen: Under date of March 13, 1948, the writer sent a telegram through your office to Houston-Ford Insurance Agency, Sylvester, Georgia, and paid a fee of 48c for the wire. I am sure you held the original of this telegram in your office, which was signedParham General Agency. Will you kindly advise promptly, by use of the enclosed self-addressed and stamped envelope, if the Western Union Telegraph Company is able to show that this telegram was delivered to the addressee? Please also furnish us with a copy of this telegram. Very truly yours, Chester Parham, Parham General Agency."
It was alleged that on the same date the defendant replied through its manager at Americus, Georgia: "Dear Mr. Parham: Herewith acknowledge your letter of April 27 regarding telegram filed at this office on March 13. An investigation has been started and just as soon as it has been completed we will give a full report on the above matter. You will hear further from us within a few days. Thanking you, I am, Yours very truly, C. A. Brown, Manager;" that on May 7, 1948, petitioner's general agent again wrote the defendant at Americus, Georgia, "Gentlemen: Under date of April 27 I wrote you to furnish us evidence of delivery of telegram dispatched to the Houston-Ford Insurance Agency, Sylvester, Georgia, on March 13, 1948. 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 now in position to give us this *Page 769 report. Very Truly Yours, Chester Parham"; that on May 6, 1948, defendant's agent at Americus wrote the following letter to petitioner's general agent: "Dear Mr. Parham: Further, in connection with your letter of April 27, regarding telegram sent by you from this office March 13, to Houston-Ford Insurance Agency, Sylvester, Ga. We are pleased to advise that the above telegram was delivered promptly by telephone to Mr. Ford's secretary who failed to make any record of same and failed to notify Mr. Ford."
By amendment the plaintiff attached and made a part of its petition a copy of the telegraph message blank form upon which plaintiff filed its message with the defendant for transmission. On the face of the blank appears the following: "Send the following message, subject to the terms on back hereof, which are hereby agreed to," and on the back "All messages taken by this company are subject to the following terms: . . 6. 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." The defendant demurred specially and generally, and the court sustained the general demurrer. The plaintiff excepted.