Albers v. Western Union Tel. Co.

• Decision Date: 13 April 1896
• Citation: 66 N.W. 1040,98 Iowa 51
• Parties: F. B. ALBERS, Appellant, v. THE WESTERN UNION TELEGRAPH COMPANY
• Court: Iowa Supreme Court

66 N.W. 1040

98 Iowa 51

F. B. ALBERS, Appellant, v. THE WESTERN UNION TELEGRAPH COMPANY

Supreme Court of Iowa, Des Moines

April 13, 1896

Appeal from Keokuk District Court.--HON. A. R. DEWEY, Judge.

ACTION at law to recover damages for failure to transmit a telegraphic message. There was a demurrer to the petition which was sustained. From a judgment dismissing the petition the plaintiff appeals.

Affirmed.

C. M Brown for appellant.

McNett & Tisdale and Cummins & Wright for appellee.

OPINION

ROTHROCK, C. J.

I.

It is unnecessary to set out the petition in full. It will be sufficient to give the substance of it, so far as it pertains to the single question, which, we think, is decisive of the case. It appears, from the petition, that on the thirtieth day of June, 1894, the plaintiff filed one of the blanks of the defendant, at its office, in Sigourney, in this state, with a message, directed to H. A. Albers, at Center Junction, Iowa and delivered said message to the defendant's agent at Sigourney, and directed him to transmit it to H. A. Albers, at Center Junction, and that payment was made for the transmission of the message. It is averred that the defendant carelessly and negligently failed to transmit said message as directed, and that plaintiff sustained damages, by reason of said negligence. The message, and the indorsements thereon, are set out as part of the petition, and for the purpose of showing that the defendant is liable for negligence. The contract, among other things, contains this stipulation: "The company will not be liable for damages or statutory penalties, in any case, where the claim is not presented in writing, within sixty days after the message is filed with the company, for transmission." It is not averred in the petition that the plaintiff complied with this provision of the contract within any time, before or after the expiration of sixty days. One ground of the demurrer was, that there was no averment in the petition that the plaintiff complied with this part of the contract. The claim is briefly made, in the argument in behalf of appellant, that a demurrer on this ground, will not lie, but that the failure to present the claim within the time named must be specially pleaded. This position is not well taken. If there is any ground, upon which this part of the contract can be avoided, it must be set out in the petition; and for failure to do this, a demurrer is the proper pleading, by defendant. Carter v. Insurance Co., 12 Iowa 287; Moore v. Insurance Co., 72 Iowa 414 (34 N.W. 183).

II. The claim is also made that the averments of the petition show that the stipulation under consideration was waived. We will not set out that part of the petition. It shows merely verbal statements made to, and interviews with, the operators of the defendant, and indefinite statements as to damages. No claim for damages, in the sense of a demand for payment of any sum, was made at any time. We do not think that the averments of the petition show a waiver, even if it should be conceded that the provision may be waived.

III. We come now to the question involving the validity of the stipulation requiring the claim to be presented in writing. It is urged, in behalf of appellant, that it is void, as being unreasonable, and against public policy. An examination of the question, in the light of the arguments of counsel and...