Parks v. Western Union Tel. Co.

• Decision Date: 05 May 1921
• Docket Number: 2476.
• Citation: 197 P. 580,45 Nev. 411
• Parties: PARKS v. WESTERN UNION TELEGRAPH CO.
• Court: Nevada Supreme Court

197 P. 580

45 Nev. 411

PARKS v. WESTERN UNION TELEGRAPH CO.

No. 2476.

Supreme Court of Nevada

May 5, 1921

Appeal from District Court, Washoe County; J. Emmet Walsh, Judge.

Action by Sterling Parks against the Western Union Telegraph Company, a corporation. From an order overruling plaintiff's demurrers to affirmative defenses in the answer, and from a judgment on the pleadings, plaintiff appeals. Reversed.

Sardis Summerfield, of Reno, for appellant.

Brown & Belford, of Reno, for respondent.

SANDERS C.J.

This is an appeal from an order overruling plaintiff's demurrers to defendant's two alleged affirmative and separate partial defenses to the cause of action set out in the complaint, and an appeal from a judgment on the pleadings.

The plaintiff brought his action against the Western Union Telegraph Company to recover a money judgment for the sum of $3,000, as damages for its negligent failure to deliver an interstate telegraphic message written upon one of the defendant's blank forms furnished the sender. The plaintiff alleges that by reason of the negligence and carelessness of the defendant he lost a lucrative position or employment, and was damaged in the sum stated. The defendant demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled. The defendant thereupon answered, and, after denying the allegations of the complaint, set up two alleged affirmative partial defenses but one of which, in view of the judgment, it is necessary to consider. The defense was:

"Further answering said complaint, and for a separate and partial defense, plaintiff alleges:

(1) That, if there ever was delivered to this plaintiff a message such as that referred to and described in paragraph VI of the complaint, such message was delivered to and accepted by the defendant subject to the terms of a certain contract in writing, a copy of which is annexed hereto and made a part of this answer, and marked 'Exhibit A,' and which is hereto referred to and made a part hereof, as if set forth at length herein.

(2) That, as more fully appears from said Exhibit A hereto annexed, it was a term and condition of the said contract, subject to which, and subject to which only, such message was accepted by the defendant, that the defendant should not be liable for mistakes or delays in the transmission or delivery, or for nondelivery of any unrepeated message, beyond the amount received for sending the same; and that the said message was an unrepeated message, and defendant was not directed or requested to repeat the same, and all that the defendant received in exchange for its obligation in respect to said message was the sum of $1.28, which was defendant's ordinary and reasonable charge for the transmission of such a message, without repetition, from the point of origin to the point of destination named therein, including its delivery at destination."

The plaintiff interposed a demurrer to this alleged defense, upon the ground that it did not state facts sufficient to constitute a defense. The court overruled the demurrer, and caused to be entered this judgment:

"The plaintiff having demurred to the first and second separate and partial defense in the defendant's answer, and said demurrers having been duly argued, and after due consideration the said demurrers having been overruled, and the court having made and entered an order overruling the same, the plaintiff thereupon refused to reply to the affirmative matters contained in defendant's answer, and waived further time to reply, and thereupon the default of the plaintiff for want of reply is entered, and the defendant moves the court for judgment upon the pleadings, which said motion is granted.

Whereupon, by reason of the law and the premises, it is by the court ordered, adjudged, and decreed that the plaintiff, Sterling Parks, do have and recover from the Western Union Telegraph Company, a corporation, defendant, the sum of $1.33 (being the sum of $1.28, together with interest thereon from the 3d day of February, 1920, to date, amounting to $.05), together with interest on $1.28 thereof, at the rate of 7 per cent. per annum from date hereof until paid."

It is obvious that the judgment is based upon a failure of the plaintiff to file and serve a reply after the overruling of his demurrer. Section 115 of the Practice Act, as amended (Stats. 1915, p. 192), provides:

"When the answer contains new matter, constituting a defense, or a counterclaim, the plaintiff shall, within ten days after service of such answer or within ten days after notice of the

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