Polhill v. Postal Telegraph-Cable Co.

85 S.E. 936, 16 Ga. App. 601, 1915 Ga. App. LEXIS 149

• Court: Court of Appeals of Georgia
• Decided: July 29, 1915
• Docket: 6153
• Status: Published

Opinions

Broyles, J.

The first headnote alone needs elaboration. It is contended by the learned counsel for the plaintiff that as there was no allegation in the plaintiff’s petition that written notice of the claim was given within sixty days, and that as neither of the defendant companies pleaded failure to give such notice within the required time, the question whether the plaintiff gave such notice to the defendants within sixty days is not in issue in this case; and the said counsel further declare that “in all cases where a nonsuit has been granted in this State, on the ground of failure to give notice (e. g. Hill, 85 Ga. 425, and James, 90 Ga. 254), it affirmatively appeared (doubtless on proper pleadings) that such notice had not been given; which clearly distinguishes this line of cases from the case at bar, where there was no evidence of failure to give such notice.” The same counsel admit further that “if the plaintiff had put this question in issue by alleging the giving of notice, or if defendant had put it in issue by specially pleading it, then a nonsuit would have been proper, had the plaintiff failed to sustain tins issue.” From an examination of the original record in the Gill case, supra, we find that the plaintiff’s petition (just, as in the case at bar) contained no allegation that the notice of the plaintiff’s claim was given within sixty days, and that the defendant telegraph company did not plead as a defense that such notice was not given within the required time; and yet in that case, in the trial court, counsel for the defendant company, after the plaintiff had introduced his evidence, moved for a nonsuit, “on the ground that, as appears from the evidence, no demand or claim for damages had been given in writing to said company or its agents, within sixty days, ■ as required by the rules and regulations of the company, printed on the blank on which the message was sent,” and the court sustained the motion and granted the nonsuit on that ground. The Supreme Court sustained this ruling, so far as it related to the failure of the plaintiff to make a written demand upon the company within the time specified, though the judgment granting a nonsuit was reversed, the reversal being solely upon the ground that the evidence submitted showed that the company, by the action of its agent, had waived the written demand or notice. As neither the letter admitted in evidence in the case at' bar nor the one which was excluded by the court, nor both together, showed any waiver on this'point by the defendant company, in our judgment the non-suit was properly awarded. Judgment affirmed.