14 S.E. 94 | N.C. | 1891
The complaint alleged:
3. That at the time, hereinafter to be mentioned, the plaintiff (528) was in Iredell County and State of North Carolina, at his *384 father's, Franklin Sherrill, on a visit; that at his home in Max, Indiana, he left M. C. Sherrill, his sister, and housekeeper, his wife being dead, and a daughter named Lou, all in good and sound health.
4. That on 1 December, 1890, at the office of said corporation, in the city of Lebanon, State of Indiana, the said M. C. Sherrill caused to be delivered to the agent and employee of said corporation, to be sent to the said Franklin Sherrill at Statesville, State of North Carolina, for the use and benefit of H.Z. Sherrill, this plaintiff, the following telegraph message:
MAX, IND., 1 December, 1890.
To MR. FRANKLIN SHERRILL, Statesville, N. Carolina: Tell Henry to come home. Lou is bad sick. M. C. SHERRILL. Tel. answer quick, it's paid for here. 16 paid $3.50. Gt. Spcl Dely.
That Henry named in said message was the plaintiff in this action. A copy of said telegraph message is hereto attached and asked to be taken as part of this complaint.
5. That, in consideration of the sending of said message over the wires of said company, said corporation was paid, out of the funds of this plaintiff, the sum of $1.18, the regular charge for such message, and the further sum of $3.50 for a special delivery of said message to Franklin Sherrill, where the plaintiff then was.
That said corporation contracted for special delivery, and took the charges therefor, as it had the right to do.
6. That said message, as above set forth, was received at the (529) office of said company in Statesville, State of North Carolina, on said 1 December, 1890, but the same was allowed, through the gross negligence of said company, to remain in said office without delivering the same, or attempting to do so, and still remains undelivered to any one.
7. That, by the carelessness and gross negligence of said company and corporation in not delivering said message, as it had contracted to do, telling him of the sickness of his daughter, this plaintiff failed to know that his said daughter was sick, and was unable to be with her in her last hours. That his said daughter died on 6 December, 1890, and was buried, all unknown to this plaintiff, by reason of such negligence of defendant, he having, on 9 December, 1890, received the first information concerning her condition. That she was under age and living with him, unmarried, at said time. *385
8. That by reason of the gross negligence and wilful conduct of said corporation in the failure to deliver said message, this plaintiff has suffered great damage, both in body and mind."
The defendant in this action demurred:
1. That it appears, from the complaint, that there was a condition attached to said contract that the defendant should 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 one M. C. Sherrill to one Franklin Sherrill, (530) 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 said message, nor that there was any contract between the plaintiff and defendant in respect to the said message, nor that 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.
The demurrer was overruled, and the defendant having excepted, appealed. 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 *386 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 within sixty days," is not a stipulation restricting the liability of the telegraph company for negligence. Massengalev. Tel. Co.,
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 nondelivery, 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.,
Affirmed.
Cited: S. c.,
(534)