64 S.E. 177 | N.C. | 1909
Plaintiff appealed.
This action was brought to recover damages for mental anguish, alleged to have been caused by the negligent failure of the defendant to deliver a death message. Plaintiff's wife was critically ill, and his brother, J. W. Sykes, in his own name, but as agent for the plaintiff, N. R. Sykes, delivered a telegram to the defendant, at Durham, N.C. to be sent to Caze Cates, at Haw River, N.C. for the purpose of informing the plaintiff's two sisters of his wife's condition, though their names were not mentioned in the message, nor was the defendant's operator notified that it was sent for that purpose. The message, which was sent on 6 December, 1907, was not delivered, but on 7 December, 1907, the plaintiff learned of its nondelivery. This action was commenced 13 March, 1908. The contract with the company required that the plaintiff should present his claim within sixty days after the filing of the message for transmission or be barred of a recovery. It was admitted that no claim had been presented, although the plaintiff knew of the defendant's default more than sixty days before this action was commenced. At the close of the evidence the court, on motion of the defendant, nonsuited the plaintiff, under the statute, and he appealed. The validity of the stipulation as to presenting the plaintiff's claim within (432) sixty days after knowledge of the nondelivery of the message has been received by him is too well settled now to be questioned. "The object of the requirement is to give the company cognizance of facts creating the liability, in order that it may use these for investigating the cause of the loss or injury. It is impossible for these companies *355
to keep up with all mistakes of their employees and the injuries arising therefrom; and, while they may be clearly liable for claims presented — and for which they would readily, without suit, indemnify the injured party — yet, if they have no facts on which to base an investigation, in order to determine whether they are liable, they would very probably be heavily taxed with an expensive litigation. So, if the plaintiff has good grounds to recover damages, he should impart these facts to the company, in order to avoid litigation." Jones on Telegraph and Telephone Companies, p. 380, sec. 395. The object, therefore, in requiring notice of the claim is to enable the company to ascertain whether it is liable for the damage. This stipulation exempting the company from liability, where the claim for damages is not presented in sixty days, is not a condition restricting its liability for negligence, nor it is in the nature of a provision limiting the time within which an action may be commenced and therefore having the force and effect of the statute of limitations. We have so held in Sherrill v. Telegraph Co.,
No error.
Cited: Barnes v. Tel. Co.,
