The Montgomery advertiser., 1907-09-30
WESTERN UNION TEL, CO, V
 HEATHCoAT.

WESTERN UNION TEL, CO., Ns" HEATHCoAT.
 namas ses For Failure to Transmit Mes
 sage Decided Feb. 14th, lsof. So. Rep. IT'D ,,,.,o,s A renIication stating merely that oe- fendant waived a provision or tne con- tract. without stating facts snowlns such waiver, Is bad as sta'ins ooH clusion. not in th. Record-Reliance cannot pc nao ,,non pleadings to which demurrer nas haen sustained, and which was ehSi - Fore ont of record. or sustain other nleadinr that refers for its facts 10 ths pleading out of the record. ,,i
 a. Appeal; Presumptions; a oveful ing Demurrer-1t cannot pc p.aod that nleading would have been anenueo had demurrer been sustained thereto' herca if is not harmless error to over ruIe a demurrer which states tnat ene rIeadinr merely staes a conclusion.
 Telerraphs; Acceptance or Mes- .ago for transmission; Conoltions' wsiver-The Company may wave sne nr condition in the contract uhoSr if sends a message, that IL wnt n as . sntI,,re op it's part, unless the claim is nresented within sixty days aIter .ne presentu .ha maasapa for transmission.
 Same-The waiver of the cohol- .,ons that the company will not pc uahla for damages growing up out of its failure to transmit unless the claim Is presented m wft ing sixty days, may rest Tn parot.
 prjnciDaI and Agent; Power of Agent. IJndisclosed Limitation on--A waiver by the head man and general manager of it's local office or the con dItions in the contract that the com nanv will not be liable unless a written claim for damages Is presented "ltnlH sixty days, is binding on the company | in the absence of knowledge on the part l of the person having the claim or | limitation upon the authority or sucn | officer or agent imposed by the com 1 pany. I. Telesraphs; Failure to Deliver Message; Actions; Parties-Unless the person delivering the message tol l transmission acts for or on behalf oi | the person to whom 1t is addressed | such person Is not a party to the con | tract for transmission and delivery oi | the message so as to be entitled te
 maintain an action for its breach. 8. Evidence; Conclusion of Witness The sender of a telegram may not testl- | fv that he delivered 1t to the company | for the benefit Of the aooFessee' N O | ing a conclusion. same-It is not a conclusion. anc | therefore not objectionable, whether one. if a telegram had been delivered at a certain time. could have reached
 a certain place by a fixed time
 10. Principal and Agent; Evidence ol Agency: Testimony of Agent-Cne send | ing a telegram cannot prove by his
 testimony showing that he delivered th' voesage for the benefit of the addressee
 that he acted as agent of the address | see. r-,,,,o,
 II. Telegraphs; Failure to Deliver Message: Damages; Mental Suffering
 The relation of brother and sister II
 such as to authorize recovery for men
 taI suffering for failure to deliver tele
 gram. ,,..,, o | 12. Principal and Agent; Evidence O | Agency-For the purpose or shoWlns
 the authority of F. to present plain
 tIffs claim to defendant for damages f. is competent to show that plalntltr
 nIaced her claim in the hands Of F. fol
 collection, and that F. orally presented l the claim. . c,t.o,,,+ oour+
 Heard before Hon. A. A. Coleman.
 Reversed and Remanded. Opinion b!
 Denson, J. ,,., and Simpson, JJ., concur.