Newbern v. Western Union Telegraph Co.

ClaRicsoN, J. We think tbe court below was in error in sustaining defendant’s motion for judgment as in case of nonsuit, under 0. S., 567. On a motion to nonsuit, tbe evidence is to be taken in tbe light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence, and every reasonable inference to be drawn therefrom. We do not repeat or discuss tbe evidence, as tbe case goes back to tbe court below to be tried on tbe issues arising on tbe pleadings. *261 We think the notice given by plaintiff to defendant, in letter of 2 September, 1924, fully ample under the terms of the contract. The Western Union Telegraph Company blank has the following: “Send the following message, subject to the terms on the back hereof, which are hereby agreed to.” (Space for telegram.) And on back of telegram: “6. The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing within sixty days after the message is filed with the company for transmission.” This stipulation has been held reasonable and valid. See Waters v. Tel. Co., 194 N. C., at p. 196, and authorities cited. Mr. Justice Holmes, in Western Union Tel. Co. v. Czizek, 264 U. S., at p. 285, says: “But here the plaintiff called on Hackett, the general manager at Boise, about 14 February, 1918, as soon as he knew the facts. Directly after he received a letter from Hackett, regretting the occurrence, and enclosing the amount paid by the plaintiff as toll. Three days later the plaintiffs returned the check by letter, saying, ‘An acceptance of this check on my part might be construed as a settlement of this matter/ so that defendant then had written notice that a claim was made. There was further communication, and finally, on 18 June, the plaintiff made a formal written demand. We should be unwilling to decide that the action was barred by this clause.” In Bennett v. Tel. Co., 168 N. C., at p. 498-9, it is said: “The object of the sixty days notice, as stated in Sherrill v. Tel. Co., supra (109 N. C., 527), is to give the telegraph company notice within sixty days, before its records may be sent off or the memory of its agents becomes indistinct. This letter was sufficient to recall the matter to the attention of the agent at Hamlet, and was mailed within sixty days. Lytle v. Tel. Co., 165 N. C., 504. Such mailing raised the ‘presumption that the letter was received, and therefore was duly served.’ Cogdell v. R. R., 132 N. C., 855, citing Bragaw v. Supreme Lodge, 124 N. C., 154.” In Bryan v. Tel. Co., 133 N. C., at p. 607, it is held: “The third ground that the claim for damages was not presented in sixty days is answered by the fact that the summons was issued and served in sixty days. Sherrill v. Tel. Co., 109 N. C., 527, at p. 532, where it is held, ‘the general rule that the commencement of an action is equivalent to a demand applies to cases of this kind.’ Thompson on Elec., sec. 256. . . . The service of the summons puts the defendant on inquiry fully as much as filing the complaint.” Mason v. Tel. Co., 169 N. C., p. 229. For the reasons given the judgment of the court below is Reversed.