Opinion
9423
June 30, 1916.
Before SEASE, J., Laurens, November, 1914. Affirmed.
Action by Annie A. Simpson against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.
Messrs. Richey Richey and F.P. McGowan, for appellant, cite: 83 S.C. 44; 82 S.C. 247; 78 S.C. 424; 27 Stats. 131; 71 S.C. 511; 10 Rich. L. 382; 19 S.C. 366. Stipulation against liability for negligence invalid: 75 S.C. 512. Evidence of negligence and wilfulness: 83 S.C. 8; 84 S.C. 482; 88 S.C. 388. Issue for jury: 76 S.C. 275; 89 S.C. 567. Notice of special damages: 26 Stats. 84. Agency of messenger: 82 S.C. 247.
Messrs. John Gary Evans and Featherstone Knight, for appellant, cite: As to agency of person writing message: 70 S.C. 16; 27 S.C. 63; 53 S.C. 448; 70 S.C. 539; 82 S.C. 250; 37 S.C. 452; 37 Cyc. 1694; 159 Ala. 254; 149 Ala. 617; 53 Am. Rep. 754; 63 Tex. 668; 24 S.W. 86; 18 S.E. 1008; 72 N.Y. Suppl. 634; 48 So. 712; Jones Telegraph Telephone Companies, sec. 317; 5 Rich. 27. Construction of stipulation as presentation of claim: 71 S.C. 506; 37 Cyc. 1689; 27 N.E. 313; 150 N.C. 431; 96 Tenn. 66; 65 N.W. 37. Evidence as to damage: 99 S.C. 132; 96 S.C. 423.
June 30, 1916. The opinion of the Court was delivered by
This is an action for damages for delay in delivering a telegram. The plaintiff's husband became ill at Laurens, and she sent a telegram to her father at Williamston, both in this State. About 6 o'clock on Saturday evening the plaintiff called the telegraph office over the telephone. She received no answer. Plaintiff knew the operator, Miss Dean, and, thinking that the operator was at supper, called her up at her boarding house, and asked Miss Dean to get off a telegram to her father at Williamston. Miss Dean told the plaintiff that it would be well to try the phone, as it was doubtful about getting a telegram through at that hour. The plaintiff insisted on the telegram, and asked Miss Dean to do her best to get it through for her. Miss Dean then secured a pencil and paper and wrote the message on the paper at her boarding house. Miss Dean then went to the office and transcribed the message on a telegram blank. On the back of the blank there is the usual stipulation for notice of default in the transmission of the message. The message arrived at Williamston promptly, but was not delivered until Monday morning. The message read: "R.L. Simpson is seriously ill." Mr. Simpson died before the message was delivered. A motion for a direction of a verdict was made by the defendant on several grounds, but sustained on only one, to wit, that notice of claim for failure to deliver was not made within 60 days. From this finding the plaintiff appealed.
The plaintiff claims that the message was written on the blank without her authority, and as she knew nothing of the stipulation she is not bound. The only question that arises is: For whom was Miss Dean agent when she wrote the message on the blank, which contained the stipulation. If Miss Dean was the agent of the plaintiff in writing the message on the telegraph blank, then as there is no question that Miss Dean knew of the stipulation and the knowledge of the agent is imputed to the principal, the plaintiff is bound by the stipulation. Miss Dean was not on duty when she received the message at her boarding house. She testified, and it is not disputed, that she could not, under the rules of the company, receive a message that was not on the company's blanks.
The plaintiff introduced in evidence the message written on the blank as the basis of her action. If the plaintiff had relied upon the verbal message over the phone, a different question might have arisen. She did not do that. She adopted the message written by Miss Dean on the company's blank. This is in no way in conflict with Mims v. Telegraph Co., 82 S.C. 250, 64 S.E. 236. In that case we find:
"The telegraph company may ordinarily require assent to this or any other reasonable regulation, by requiring the sender, when capable of doing so, to write the message on its blank, or by any other reasonable requirement."
Appellant claims that this 60-day stipulation is not reasonable or lawful, as it is in conflict with the statute of limitation. It has been decided, if a decision is necessary, that it in no way conflicts with the statute of limitation. It merely says: Notify us while the facts are fresh in our minds, so that we may be able to secure reliable evidence. It does not say when suit shall be brought.
The judgment is affirmed.