Sherrill v. Western Union Telegraph Co.
14 S.E. 94
N.C.
1891
Check Treatment
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 sixty days after sending the message.” The *531 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 the contract between the parties, evidenced by the blank message written thereon and the printed stipulations on the margin.

The stipulation that the company will not be liable unless the claim is presented “ in writing and within sixty days,” is not a stipulation restricting the liability of the telegraph company for negligence. Massengale v. Tel. Co., 17 Mo. App., 257. If it were, it would be void, as was held in Thompson v. Telegraph Co., 107 N. C., 449; Smith v. Telegraph Co. 83 Ky., 104; Gillis v. Telegraph Co., 61 Vt., 461; 15 Am. St Rep., 917, in which last case numerous authorities are cited. But this stipulation is rather against the neglect of the plaintiff in not making' known his cause of complaint within a reasonable time. It is a reasonable requirement, enabling the company to enquire into the nature and circumstances of a mistake in or of the delay or non-delivery of the message, while the matter is still within the memory of witnesses. In -view of the number of telegrams constantly passing over the wires, some such stipulation is absolutely necessary to protect the company from imposition. It is not a statute of limitations restricting the time within which action may be brought. This stipulation has been held reasonable in many decided cases cited by Freeman in his Notes, on p. 471 of 71 Am. Dec., as well as by a very recent case, Telegraph Co. v. Dougherty (Ark.), 11, Lawyers Annotated Rep., 102. The period of sixty days has also been held a reasonable time in many cases (with scarcely any to the contrary), which are collected by Judge Thompson in his recent work, “ The Law of Electricity,” § 247. Such stipulation relieves the telegraph *532 company “ from no part of their obligations. They are bound to the same diligence, fidelity and care as they would have been required to exercise if no such agreement had been made,” since all that the stipulation requires is that the plaintiff should give notice of his loss “ in season to enable the defendant to ascertain the facts.” So. Exp. Co. v. Caldwell, 21 Wall., 264. There are, however, circumstances in W'hich the stipulation for sixty days would be unreasonable, as was pointed out by Judge Speer in the U. S. C. C. in a late case, Johnston v. Telegraph Co., 33 Fed. Rep., 362, as, for instance (as was the fact in that case as in this), where a prepaid message has never been delivered. The Court goes on to say that a stipulation of thirty days after the message is sent would be unreasonable in such case, for the failure of the company to deliver it would deprive the plaintiff perhaps of all notice-that a telegram had been sent to him, and the company could prevent all redress by holding the telegram till after the time within which it is stipulated that the demand on them must be made. In the 'case before us it is set out in the complaint that the company “ contracted for special delivery and took the charges therefor,” and that the méssage has never been delivered. The plaintiff has made no demand before suit brought, but the general rule that the commencement of an action is equivalent to a demand applies to cases of this-kind. Thompson on Electricity, § 256. If, therefore, the action was begun within sixty days after knowledge by the plaintiff of the failure to deliver the message, it would be such compliance .with the stipulation as could be required in a case where a message was not delivered at all. If not brought within such time, the plaintiff is barred by his own negligence in not presenting his claim within the specified time. It does not appear in the complaint when such knowledge came to the plaintiff, but it does appear therein that the message has not been delivered at all. Hence, the demurrer because the plaintiff did not pre *533 sent his claim within sixty days after the message was sent, was properly overruled. If defendant wishes to insist that plaintiff did not give notice of his claim within sixty days after knowledge of the non-delivery, he must set this up by answer.

It appears in the complaint that the telegram was sent by his sister, whom the plaintiff had left in charge of his house in Indiana (his wife being dead), in regard to the illness of his daughter, its cost was prepaid out of plaintiff’s funds, and it was directed to his father, at whose house, in this State, he was on a visit, “for the use and benefit,” it is alleged, “of the plaintiff,” and defendant contracted to deliver it at such house by special delivery. The telegram requested the father to tell the plaintiff to come home, that his daughter was very ill. The plaintiff could, therefore, maintain the action both because the sister was his agent for the purpose of sending the telegram, and also because the plaintiff was the beneficial party in the contemplation of the contract of sending the message, since it was on its face sent for his benefit, and he was the party who alone would be injured by its negligent delay or non-delivery, and it is averred that the defendant received the message to be transmitted “for the use and benefit of” the plaintiff. The demurrer on the second and third grounds was, therefore, properly overruled. Young v. Telegraph, Co., 107 N. C., 370; Adams v. Telegraph Co., 16 Am. St. Rep., 924; Burton v. Larkin, 36 Kan., 246.

Affirmed.