Baird v. Western Union Telegraph Co.

• Decision Date: 14 March 1908
• Citation: 60 S.E. 695,79 S.C. 310
• Parties: BAIRD v. WESTERN UNION TELEGRAPH CO.
• Court: South Carolina Supreme Court

60 S.E. 695

79 S.C. 310

BAIRD v. WESTERN UNION TELEGRAPH CO.

Supreme Court of South Carolina

March 14, 1908

Woods J., dissenting in part.

Appeal from Common Pleas Circuit Court of Darlington County; J. C Klugh, Judge.

Action by H. S. Baird against the Western Union Telegraph Company. From an order overruling a demurrer to the complaint, and refusing to strike out certain allegations thereof, defendant appeals. Modified.

Willcox & Willcox, for appellant.

Shaw & Dennis, for respondent.

GARY A. J.

This is an appeal from an order overruling a demurrer to the complaint, and refusing to strike out certain allegations thereof, to wit, those that are italicized in the following copy of the complaint:

1. "That the defendant is a corporation duly organized and chartered under the laws of one of the states of the United States, which state is unknown to plaintiff."

2. "That the defendant carries on a telegraph business in the states of South Carolina and North Carolina, transporting and transmitting messages from one place to another for hire."

3. "That on November 11, 1903, at Winston-Salem, N. C., a telegram of the following tenor and words was delivered to the defendant and charges prepaid thereof, for transmission and delivery to the plaintiff at Darlington, S. C.: ' Winston-Salem, N. C., Nov. 11th. H. S. Baird Darlington, S.C. Draw on this Bank with Coleman's check attached. Peoples National Bank'-but in utter disregard of plaintiff's rights the defendant carelessly, willfully, negligently, and recklessly changed the said telegram as follows: 'Winston-Salem, N. C., Nov. 11th, H. S. Baird, Darlington, S.C. Draw on this Bank with Coleman's check attached. John Coleman.'"

4. " That the plaintiff was at the times herein mentioned, and is now, engaged in the insurance business as agent for several companies at Darlington, S. C., and acting in his capacity as such, he issued insurance to John Coleman in large amounts on tobacco, which the said Coleman had stored in Darlington. That at the time above mentioned there was due as premiums on the said insurance from John Coleman to the plaintiff the sum of four hundred thirty-two and 5/100 dollars, and on October 28, 1903, the said John Coleman gave to the plaintiff a check on the People's National Bank, Winston, N. C., for the sum of four hundred thirty-two and 5/100 dollars, in settlement of the premiums then due, which said check was duly deposited in the People's Bank at Darlington, S. C., for collection, and was presented to the People's National Bank of Winston-Salem for payment, but was returned to plaintiff unpaid."

5. "That thereupon on November 11, 1903, as above set forth, the People's National Bank of Winston-Salem, N. C., telegraphed the plaintiff as set forth above, which telegram, if it had been delivered in its proper form, would have instructed plaintiff what disposition to make of the returned check, and plaintiff would thereby have collected the amount of said check, but the defendant having carelessly, willfully, negligently, and recklessly changed said telegram and delivered it in its changed condition, plaintiff was not instructed thereby, and could not pay proper attention to it, and the People's National Bank of Winston-Salem paid out the money then in its hands to pay this check, and when the plaintiff drew on said bank later, to wit, November 20, 1903, his draft was returned unpaid and this plaintiff thereby lost the sum of money aforesaid."

6. " That on account of the carelessness, willfulness, recklessness and negligence of the defendant above set forth, this plaintiff has been financially embarrassed, has had to allow matters to remain long overdue against him, and has been injured in his credit and in his financial standing, and humiliated, and has been damaged thereby in the sum of nineteen hundred and fifty dollars."

We will first consider whether there was error in refusing to strike out said allegations on the ground that they were irrelevant and redundant. In Pom. Code Rem. § 517, it is said: "The fundamental and most important principle of the reformed pleading, the one from which all the others are deducted as necessary corollaries, is the following: The material facts which constitute the ground of relief should be averred as they actually existed or took place, and not the legal effect or aspect of those facts, and not the mere evidence or probative matter by which their existence is established." (Italics ours.) Section 526 of the same work shows that "those important and substantial facts should be alleged which either immediately form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant, and not the details of the probative matter or particulars of evidence by which these material elements are to be established." (Italics ours.) The italicized allegations of the complaint do not contain material facts constituting grounds of relief, and should have been struck out.

The grounds of demurrer were as follows: "(1) In that it appears upon the face of the complaint that the plaintiff did not lose the money due him by John Coleman by reason of the failure to correctly deliver the telegram in question, but that he did fail to collect same by reason of the voluntary act of John Coleman in checking out the money in question from the bank where it was deposited, and by reason of the act of the People's National Bank of Winston-Salem in paying out said money regardless of the telegram, which it had delivered to ...