The message the appellee sued the appellant for a failure to deliver promptly was a death message showing on its face that it was a message for the purpose of conveying the information of death between immediate members of the family. The appeal is on the record without a bill of exceptions, and the appellant’s contention most seriously insisted upon as constituting reversible error is based on the court’s ruling in sustaining the plaintiffs demurrers to the defendant’s idea numbered 5. Plea No. 5 is in the nature of a plea in confession and avoidance, and seeks to avoid liability for prompt delivery of the message by alleging that the message was filed for transmission with the defendant’s agent at the receiving office*, of defendant after office hours on that day at. the terminal office for the message. (The; reporter will set out this plea as shown on pages 11 and 12 of the transcript.)
It was held in the case of W. U. Telegraph Co. v. Hill, 163 Ala. 18, 37, 50 South. 248, 254 (23 L. R. A. [N. S.] 648, 19 Ann. Cas. 1058), that: “A telegraph company has a right to adopt rules as to office hours, and have reasonable, rules for its own protection; Imt it also has the right to waive them, and does waive them as to office hours when it accepts a message for transmission and delivery without the office hours without informing the sender of such rules or without explaining to him that it would not be transmitted or delivered until the time.” In this case the court further holds in this connection that if the agent of the telegraph company re-*655eeiving the message bas no knowledge of tbe office hours at the place where the message is to be sent for delivery, and there is nothing to charge him with knowledge or notice, the mere receipt of the message would not be a waiver; but that in the case under consideration the question of waiver of the rules by receipt of the message was one for the jury.
On the aspect of the case as presented in W. U. Telegraph Co. v. Cleveland, 169 Ala. 131, 53 South. 80, Ann. Cas. 1912B, 531, it was held that the trial court was not in error in refusing to instruct the jury, as a matter of law, that if the telegraph company’s office hours on Sundays at the terminal office for the message were from 4 to 6 o’clock in the afternoon, and such hours were reasonable, no duty rested on the telegraph company to undertake the transmission of the message until 4 o’clock p. m. of that day. This holding was predicated on the evidence being in conflict as to whether the agent at the company’s office receiving the message informed the party delivering the message for transmission that the terminal office for the message would not be open for the receipt of messages until 4 o’clock. Under such conditions the court in effect says in the opinion in that case that, if the jury found that the agent at the receiving office did not so inform the sender of the message that the terminal office for the message would not be open for the receipt of messages until 4 o’clock, then in that event, under facts in that case, the receipt of the message for transmission and delivery out of office hours would constitute a waiver of the rule governing the company's hours for doing business at the terminal office. The case of W. U. Telegraph Co. v. Hill, supra, is cited in support of this holding. — W. U. Telegraph Co. v. Cleveland, 169 Ala. 131, 142, 53 South. 80, Ann. Cas. 1912B, 534.
*656Under the influence of what is said in the two cases above referred to, the trial court was justified in sustaining demurrers to the fifth plea on the stated ground that the plea fails to aver that the plaintiff, who delivered the message to the company’s agent at Littleton, Ala.., knew, or was informed or put on notice, that the office at Aliceville, Ala., would not be open after 5 o’clock p. m. of that day. For aught that appears from the plea, the defendant’s agent, who received the message at Littleton, knew the office hours at Aliceville and accepted the message for transmission to that office after the hours for keeping the office open there, and withheld all information on this fact from the plaintiff; and, if so, this would be a waiver of the rules as to office hours. The plea is otherwise demurrable in that'it fails to aver facts showing a prompt transmission of the message to Aliceville after the opening of the office at that place under the rules set up and relied upon. The plea shows that the office at Aliceville opened at 7 o’clock a. m., and that the message was not transmitted to that office and received there until 9 o’clock. It was at least the dirty of the telegraph company to transmit the message to the terminal office for the message without delay after that office opened under the rules of the defendant company for that office. There is nothing in the way of what we have above held in the case of W. U. Telegraph Co. v. Perry, 3 Ala. App. 247, 56 South. 824, cited and relied upon by appellant.
The defendant could receive the benefit of the defense sought to be set up by plea No. 3 under its plea of the general issue, and no injury could have resulted from the court’s action in sustaining demurrers to this plea. —W. V. Telegraph Co. v. Rowell, 153 Ala. 295, 45 South. 73; W. V. Telegraph Co. v. Cleveland, 169 Ala. 131, 140, 53 South. 80, Ann. Cas. 1912B, 534.
*657Tbe action of tbe court in overruling tbe defendant’s demurrers to tbe first count of tbe complaint was without error. — W. U. Telegraph Co. v. Rowell, supra.
We find no error in tbe rulings of tbe trial court on tbe pleadings that are insisted upon and discussed by counsel for appellant in brief, and tbe judgment ap pealed from is affirmed.
Affirmed.