This is a petition for a rehearing upon two grounds, which will be considered in regular order.
First Ground. The defendant, in its answer, interposed the following as a defense: "That the office hours of the defendant company at Ninety-Six, for the conduct of business, are from eight o'clock in the morning, until six o'clock in the evening, and if any delay occurred in the delivery of the message complained of, it was by reason of the fact, that said message was not offered for transmission, until after the office at Ninety-Six had closed, and the same was not received at Ninety-Six, until next morning, and was promptly delivered.
The allegation as to the office hours at Ninety-Six was put in issue, without a formal denial.
The plaintiff introduced testimony for the purpose of showing, that the defendant's office hours had been changed, by waiving its right to insist upon them, on numerous occassions prior to the time, when the message herein was delivered for transmission.
The operator at Ninety-Six, thus testified: "Now, frankly, were you all not in the habit of sending messages, after six o'clock? Any time we were in the office we would do it; I would; I have sent them at four o'clock in the morning. And you state that at that time, you were in the habit of receiving and delivering telegrams for people, after six o'clock? We would do it."
If the office hours at Ninety-Six were thus changed, then the defendant could not escape liability by showing, "That the office at Ninety-Six was closed, at the time the message was filed in Edgefield for transmission; that the telegram never reached Ninety-Six until 8 o'clock Tuesday morning; that the undisputed testimony shows, that the agent at Edgefield stated to Mr. Ouzts, the sender of the message, that the office hours at Ninety-Six, were from 8 o'clock a. m. until 6 *Page 366 o' clock p. m., and that the message would have to lie over in Augusta, Ga., the relay office."
It seems to us, that appellant's counsel has misconceived the object, for which the testimony was introduced. It was not for the purpose of showing waiver, in this particularcase, but that the office hours had been previously changed, in so far as the general public were concerned, by habitually disregarding them.
The verdict shows that this fact was established, to the satisfaction of the jury.
This ground can not be sustained.
Second Ground. This ground is based upon the assumption, that the Court failed to consider the fifth and eighth exceptions.
It is true, these exceptions were not considered specifically, but the Court, in concluding its opinion, said: "These conclusions practically dispose of all the questions raised by the exceptions."
The fifth exception was as follows: "In that his Honor erred in charging the fourth request of plaintiff, to wit: `If a telegraph company have a regulation, that one or more of its offices shall close at a certain hour, yet it may bind itself to deliver, after closing time, by agreement.' The error being, that there was no obligation, and no evidence tending to show an agreement, on the part of the defendant to deliver the message after office hours, and the charge was responsive to no issue of law or fact in the case, and was prejudicial to defendant."
In charging the said request, his honor, the presiding Judge, said: "Of course, I do not mean to express any opinion, as to whether there was any agreement; if there was an agreement, you will have to find it from the testimony; if there is no evidence of any agreement, then that would not apply."
The eighth exception was as follows: "In that his Honor erred, in refusing to charge the ninth request of the defendant, *Page 367 to wit: `I charge you that there is no evidence of any agreement, on the part of the telegraph company, to deliver the telegram sued upon in this case.' The error being, that said request contained a correct principle of law applicable to the case, and the failure to charge it, was prejudicial to the rights of defendant."
In regard to the ninth request, his Honor, the presiding Judge, said: "Now, as to the ninth request, they ask me to tell the jury, that there is no evidence on a certain point. I do not remember what the testimony was; I cannot keep it all in my mind.
Mr. Evans: "Is that the one as to the agreement?
The Court: "Yes, sir.
Mr. Evans: "That is just in reply to their request, and there was no such agreement.
Mr. Nicholson: "We submit there was such an agreement.
The Court: "I will decline this ninth request, because that is a question for the jury. I will tell the jury, when it comes to the question of an agreement to deliver the message out of office hours, it is incumbent on the plaintiff to show, that there has been such an agreement, and unless the plaintiff shows you by the preponderance of the testimony that there was such an agreement, then you will have to ignore it; if you do not find any evidence of a special agreement to deliver it out of the office hours, just disregard that; and if you find that the telegram was received outside of office hours, the company is not bound to deliver it, except in office hours, unless the company made a special agreement to deliver it after office hours, or unless the company had waived the requirements as to office hours."
While there was no evidence of a special agreement, as to this telegram, and the Circuit Judge erred in not so charging, yet we are satisfied that the error was not prejudicial, for the reason that, as we have shown, there was testimony tending to show a general waiver of the office hours. In view of this fact, and the explicit instructions above quoted, *Page 368 to the effect that the burden was on the plaintiff to prove such agreement, and that if she had failed to do so, or there was no evidence of it, the jury must disregard that contention, we are satisfied that the error was harmless.
It is the judgment of this Court, that the petition be dismissed, and the order heretofore granted staying the remittitur be revoked.