Sherrill v. Western Union Tel. Co

• Decision Date: 23 December 1891
• Court: North Carolina Supreme Court
• Parties: Sherrill. v. Western Union Tel. Co.

14 S.E. 94

109 N.C. 527

Sherrill.

v.Western Union Tel. Co.

Supreme Court of North Carolina.

Dec. 23, 1891.

Action against Telegraph Company — Failure to Deliver Message—Pleading—Parties.

1. In an action against a telegraph company for failing to deliver a message, the complaint, having set out the bare words of tho message, stated that "a copy of the said telegraph message is hereto attached, and asked to be made part of the complaint. " This copy was a copy of the telegraph blank, with the message written thereon, and contained on the margin the stipulation: "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. " Held, that the entire copy was part of the complaint.

2. Such stipulation is reasonable and valid, as it does not restrict defendant's liability, but is a stipulation against the plaintiff's neglect to make known his cause of complaint within a reasonable time.

3. Where the complaint in such case shows that the telegram was never received, it is not demurrable because it fails to allege that the claim was presented in accordance with the proviso of the telegram blank.

4. In an action against a telegraph company for failure to deliver a message, the complaint showed that the telegram was sent by plaintiff's sister, who was left in charge of his house, and its cost prepaid out of plaintiff's funds, and that it was directed to his father, at whose house plaintiff was. staying, requesting the father to tell plaintiff to come home, as his daughter was very ill. It further alleged that the telegram was sent for the use and benefit of plaintiff, and that defendant contracted to deliver it by special delivery. Held, that plaintiff had a right to maintain an action.

Appeal from superior court, Iredell county: R. F. Armfield, Judge.

The grounds of demurrer were as follows: "(1) That it appears from the complaint that there was a condition attached to said contract that the defendant shouldn

not be liable for damages for any breach thereof unless the claim therefor was presented in writing within sixty days after sending said message, and the complaint does not allege that the claim upon which this action is founded was presented to the defendant in writing within sixty days after the said message was sent, nor does it appear from the complaint that any demand for said claim was made upon the defendant at any time prior to the bringing of this action. (2) That this complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant, in that it appears from the face of the complaint that the message in question was sent by oue M.C. Sherrill to one Franklin Sherrill, and not to the plaintiff, and it is not alleged in the complaint that the said Franklin Sherrill was the agent of the plaintiff to receive and communicate said message to the plaintiff, nor does it appear from the complaint that there exists any privity between this plaintiff and the said Franklin Sherrill in respect to the alleged contract for sending the same message, nor that there was any contract between the plaintiff and defendant in respect to the said message, nor any contractual relations existed between the plaintiff and defendant growing out of this alleged contract between the said M. C. Sherrill and the defendant under which the said message was sent. (3) That the complaint does not state facts sufficient to constitute a cause of action in favor of the plaintiff against the defendant, in this: that it fails to show that there existed any relationship between the plaintiff and defendant whereby the plaintiff is entitled to recover of the defendant any damages he may have suffered by reason of the alleged negligence of the defendant in failing to deliver the message mentioned therein."

Jones & Tillett, for appellant.

Bingham & Caldwell and M. L. McCorkle, for appellee.

Clark, J. The complaint states "a copy of the said telegraph message is hereto attached, and asked to be made a part of the complaint." This "copy" is a copy of the telegraph blank, with the message written thereon, and contains the proviso on the margin: "The company will not. be liable for damages in any case where the claim is not presented in writing within 60 days after sending the message." The contention of the plaintiff that nothing is thereby made a part of the complaint except the words of the message itself is unfounded. The words of the bare message itself were already set out in the complaint, and there could have been no object in attaching another copy. The words must be taken to refer to the "copy" as actually attached, which is a copy of...