April 14, 1905. The opinion of the Court was delivered by This is an action for damages, by reason of the failure on the part of the defendant to deliver the following telegram: "Columbia, Va., 18. "P.B. Harrison, Johnston, S.C.:
"Father died to-day, two-thirty. Funeral Monday eleven. "Kate Harrison."
The defendant denied all except the formal allegations of the complaint, and set up the following defense:
"This defendant alleges, on information and belief, that the telegram referred to in the complaint was transmitted to and received at Johnston, S.C. at 8.10 o'clock P.M., on April 18th, 1903, after the said telegraph office at Johnston, S.C. had been closed for the day, in accordance with the hours fixed for its being closed by the rules and regulations of this defendant. The hour fixed for the closing of the said telegraph office at Johnston, S.C. was 8 o'clock P.M., on week days, which was a reasonable hour. On Sundays the hours fixed for opening the office were from 9 to 10 o'clock A.M., and from 3 to 7 o'clock P.M., which also *Page 389 were reasonable. At the time of the receipt of said telegram, on the evening of April 18th, 1903, the said office had been closed, in accordance with the rules and regulations of this defendant. One A.E. Norris, who was not at the time employed in any way by this defendant, nor was its agent or officer, nor authorized to act for it, but who was familiar with telegraphing, changed to be in the telegraph office at Johnston, S.C. after 8 o'clock P.M., on the said April 18th, 1903, and, hearing Augusta calling for said office, took the message and left it on the desk of the operator. The operator in charge of said office for this defendant had left the office at 8 o'clock on the evening of April 18th, 1903, and did not return to the office until 9 o'clock A.M., on April 19th, 1903. Promptly after entering said office and seeing said telegram, he delivered the same to the plaintiff, at 9.15 o'clock A.M. It is thus shown that, not only was this defendant not guilty of any willfulness, wantonness, recklessness, or intentional negligence or wrong, but was free from negligence of any kind whatsoever, and said telegram was transmitted and delivered with all proper diligence and care in the premises."
It also set up as a defense that the plaintiff's failure to attend the funeral was due to his own negligence. It likewise set up as a defense that the contract is governed by the laws of Virginia, and that under its laws, the damages alleged in the complaint are not recoverable.
The jury rendered a verdict in favor of the plaintiff and the defendant appealed upon numerous exceptions, which it will not be necessary to consider in detail.
The first question for consideration is whether his Honor, the presiding Judge, erred in overruling the demurrer to the complaint, on the ground that it failed to state that the plaintiff would have attended the funeral if the message had been received in time. Whatever effect such fact might have in determining the amount of damages, it certainly formed no part of the plaintiff's cause of *Page 390 action. The plaintiff also made a motion for a nonsuit on the grounds:
(1) That there was no evidence tending to prove the contract.
(2) That the telegram being a Virginia contract, and damages for mental suffering not being recoverable in that State, there could be no recovery in South Carolina.
In the first place, there were facts and circumstances similar to those in the case of Hellams v. Tel.Co., 70 S.C. 83, tending to prove the contract. And in the second place, the action is ex delicto and not ex contractu. Hellams v. Tel. Co., supra.
The next question relates to the charge of the presiding Judge. After charging the jury that the defendant had the right to make reasonable regulations for receiving and delivering messages, he also charged as follows: "Now, who received this telegram, is a question of fact for you to consider. And I charge you in that connection, if you should conclude that the message was received at the office of the defendant company, at an hour after the office had been closed for business, by one not in the employ and not an agent of the company, and such party failed to promptly deliver said message upon receipt of same, the company would not be liable for the failure of such individual, unless you should find that it was negligence on the part of the company in permitting such person to have access to the office and wires." There are also other portions of the charge, indicating that the defendant would be liable if A.E. Norris failed to deliver the message promptly, even after office hours, provided the defendant was guilty of negligence in allowing him access to its office and wires. The reasonableness of the office hours does not seem to have been in dispute. The fact that the message was received, reduced to writing, and left on the operator's desk by Norris, did not delay the delivery of the telegram after the office hours next morning, and there was no testimony tending to show that the plaintiff suffered injury by his conduct, unless *Page 391 the law required that the message should have been delivered after office hours. We are, then, confronted with the question whether any duty rested upon the defendant to deliver the telegram after its office hours. In 27 Enc. of Law, 1038, the rule is thus stated: "If the hours established for an office are reasonable, the company is under no duty to transmit messages, except during such hours, and a message offered for transmission after the close of such hours, at the office of destination, may be transmitted within a reasonable time after the office is open next morning. Similarly, where a message is transmitted to the receiving office after its regular hours, the company is not guilty of negligence in the absence of a special undertaking in deferring delivery until the next morning." This principle has been recognized in the case of Bonner v. Tel. Co., ante 303, but with the limitation that it is inapplicable when there are facts from which an agreement to the contrary may be inferred, or even when there is a waiver of the regulation.
There are no facts in this case, as in Dowdy v. Tel. Co.,124 N.C. 522, 32 S.E., 802, showing that the office was kept open for the use of the public, after office hours. The rulings of the presiding Judge were not in harmony with the principles hereinbefore stated.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and the case be remanded to that Court for a new trial.