Baird v. Western Union Tel. Co.

The opinion of the Court w&s delivered by Mr. Justice Gary. This is an appeal from ‘an order overruling a demurrer to the 'complaint, and refusing to strike out certain allegations thereof, to wit, those that are italicized in the foil-lowing copy of the complaint: I. “That 'the defendant is a corporation; duly organized and chartered under the laws of one of the States of the United States, which State is unknloiwn to plaintiff. II. “That the defendant carries on a telegraph -business in the States of South' Carolina and North Carolina, transporting and transmitting messages from] one place to- another for hire. III. “That on November 11, 1903-, at Winston-Sal'emi, N. C., a telegram! of the following tenor and -words -was delivered to the defendant -and' 'charges prepaid thereon, for transmission and delivery to the plaintiff at Dlarlington, S. C.: *312 “ ‘Winston-Salem, N. C., Nov. 11th. H'. S. Baird, Darlington, S'. C. Draw on tibisi bank with 'Coleman’s check attached. People’s National Bank.’ “But in utter disregard of plaintiff’s' rights the defendant carelessly, willfully, negligently and recklessly changed the said telegram as fallows: “ ‘Winston-Salem, N. C., Now. 11th. H'. S. Baird, Darlington, S. C. Drawl on this bank with 'Cbiennan’s check attached. John Coleman.’ IV. “Thai the plaintiff was pt the times herein mentioned, and is now, engaged in the insurance business as agent far several companies at Darlington, S. C., and acting in Ms capacity as such, he issued insurance ta John Coleman in large amounts on tobacco, wMcli the said Coleman had stored in Darlington. That pt the time above-mentioned there was due as premiums on the said insurance from John Coleman to the plaintiff the sum of four hundred thirty-two md 5-100 dollars, and on October 28, 1903', the said John 'Coleman gave to the plaintiff a check on the Peoples National Bank, Winston, N. C., for the sum of four hundred thirty-two and 5-100 dollars, in settlement of the premiums then due, which said Check was duly deposited in the People's Bank at Darlington, S. C., for collection, and wias presented! to the Peoples National Bank of Winston-Salem far payment, hut was returned1 to plaintiff unpaid. V. “That thereupon on November 11, 1903, as above set forth, the Peoples National Bank of Winsitou-S'alemi, N. C., telegraphed the plaintiff as set forth above, which telegram, if it had been delivered in its proper form, would have instructed plaintiff wHat disposition to make of the returned check, and plaintiff would thereby have collected the amount of said check, but the defendant having carelessly, wilfully, negligently and recklessly changed said 'telegram and delivered it in its changed condition, plaintiff was not instructed thereby, and could not pay proper attention to it, and the Peoples National Bank of Winston^Sblemi paid out the money then in its hands to pay this check, and when the *313 plaintiff drew on said bank later, to wit, November 20, 1903, his draft was returned unpaid' and' this plaintiff thereby lost the sum of money aforesaid. VI. “That on account of the carelessness, wilfulness, recklessness and negligence of the defendant above set forth, this plaintiff has been -financially embarrassed, has had to allozo matters to remain long overdue against him, and has been injured in his credit and in Ms -financial standing, and humiliated, and' has been damaged thereby in the sum of nineteen hundred cmd fifty dollars.” iWe will first consider whether there was error in refusing to strike out said allegations on the ground that they were irrelevant and redundant. 1 In Pbiml. Code Rem., Section 517, it is said: “The fundamental and most important principle of the reformed pleading, the one froml which all the others are deduced as neces:Sary corollaries, is 'the following: The material facts w'hidh constitute the ground of relief should be averred as they actually existed or took place, and not the legal effect or aspect of those facts, and not the mere evidence of probative matter by znhich their existence is established.” (Italics ours.) 'Section 526 of the same work shows that “those important and substantial facts should be alleged which! either immediately form the basis oif the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant, and noi the details of the probative matter or particulars of evidence by zoMck these material elements are to be established.” (Italics ours.) The italicized allegations of the complaint do not contain material facts constituting grounds of relief and should have been struck out. The grounds of demurrer were as follows: *314 2 *313 First. “In that it appears upon the face of the complaint that the plaintiff did not lose the money due him by John Calendan by reason of the failure to correctly deliver the *314 telegram! in question, Ibut thiat be did fail to collect same by reason- of the voluntary act of John Coleman in checking out the money in question from the bank where it was deposited, and by reason of the act of the Peoples National Bank of Wünston-Salenu in paying out said money regardless of the telegram, which it had delivered to the defendant company; and ■Second. “Because it appears- on the face- of the complaint that the Peoples National Bank of Wi-nston-Sdlenr, by sending- the telegram in question, assumed no obligation to pay plaintiff’s draft when presented, and the telegram in .its- correct form did not 'give notice to the telegraph company that tíre said hank had! assumed such obligations.” The plaintiff did not draw on' -the Peoples National Bank, for the reason that the telegram Was not transmitted as presented, and tire allegations show that the failure to transmit correotilly caused him pecuniary loss to the amount of the Check. It is the judgment of this Court, that the order of the Circuit Court be modified in the particulars herein mentioned.