dissenting: I regret to differ with my brethren in the disposition of this case, for I realize that there are some cases of this character where telegraph companies should be held to liability for mental anguish under our State law. If this were an open question, I would unhesitatingly agree with my brethren. But investigation has convinced me that where the telegraph company has the choice of two, methods of transmitting a telegram, one wholly within the State, and the other through a relay station outside the State, and the company chooses to transmit it outside the State, the transmission outside.the State constitutes interstate commerce.
*476It bas been settled by the Supreme Court of the United States, in Hankey v. R. R., 187 U. S., 617, that where two points are in the same State, yet if in the transmission by a carrier any part of the route is in another State, it is interstate commerce. To bring the transportation within the control of the State as part of its domestic commerce, the subject transported must be within the entire voyage under the exclusive jurisdiction of the State. This subject is discussed by Mr. Justice Wallcer in Bateman v. Tel. Co., 174 N. C., 97. I think it is manifest from the language of the act of Congress of 18 June, 1910, that a telegram sent from a’point in this State through another State and back into this State is interstate commerce, and comes within the purview of that act.
Section 1 of that act reads as follows: “The provisions of this act shall apply to . . . telegraph, telephone, and cable companies' (whether wire or wireless) engaged in sending messages from one State, territory, or district of the United States to any other State, territory, or district of the United States, or to any foreign country, who shall be considered and held to be common carriers within the meaning . . . of this act: . . . Provided, however, that the provisions of this act shall not apply to the transmission of messages by telephone, telegraph, or cable wholly within one State, and not transmitted to or from a foreign country from or to any State or territory as aforesaid.”
The only exception to the provision of that act is to the transmission of messages wholly within one State.
It is plain to me that under the act of Congress the manner of the transmission of the message and route it takes • controls the question as to whether the message comes within the purview of the Federal statute. This seems to be the view of the Supreme Court of Kentucky in the case of Telegraph Co. v. Lee, 192 S. W., 70, in which the Court says: “But the statute in the exempting clause speaks of messages transmitted wholly within one State.” It is also the view of the Supreme Court of South Carolina, in Berg v. Tel. Co., 96 S. E., 248, in which the Court-held that a telegram transmitted through a relay point outside the State to another point in the same State was an interstate message, and governed by the Federal law pertaining thereto, and in this connection the Supreme Court of South Carolina, referring to the proviso in the act of Congress above quoted, says:
“The words in the proviso to section 1 of the Interstate Commerce Act, That the provisions of this act shall not apply to the transportation of passengers or property . . . wholly within one State,’ etc., and the words, For shall they apply to the transmission of messages by telegraph, telephone, or cable, wholly within one State,’ etc., were intended to declare that the transportation or transmission which was only partly *477within a State should be subject to the provisions of the Interstate Commerce Act, for the reason that only such portion of the instrumentalities used in the transportation or transmission, located in a particular State, can be subjected to the legislation of that State, but not of any other State. No other reasonable construction can be placed on that section.”
See, also, Davis v. Tel. Co., Missouri, 202; S. W., 292; also, Tel. Co. v. Mahone (Va.), 91 S. E., 157. In this case the message was sent from Norfolk, Ya., to Tye Eiver, in the same State, but was relayed through the city of Washington. It developed in the evidence that it was possible to send the message wholly within the State of Yirginia, and it is apparent from the opinion of the Court that counsel for the plaintiff relied upon the same course of reasoning upon which is based the opinion of this Court. The Supreme Court of Yirginia, however, held that the Court had nothing to do with the motives, but only with facts, i. e., only with the question as to whether the message was actually transmitted through another State. The Supreme Court of Yirginia said:
“The Supreme Court of the United States, however, hag made it plain that in determining such questions they will’ only consider the facts and not inquire into motives. A local dealer in intoxicating liquors, who lived in the State of Kansas, and also maintained an office and warehouse in a small village, Stillings, on the Missouri side of the Missouri Eiver, which was connected by a bridge with Leavenworth, Kan., transacted his business thus: After receiving his orders from his Kansas customers, he would make deliveries from his warehouse on the Missouri side of the Missouri Eiver in his own horse-drawn wagons, either directly or by hauling the liquor to the Leavenworth railway depot for transportation to other Kansas points. The State of Kansas sought to enjoin him from carrying on this business in violation of the laws of Kansas. He claimed that his business was interstate commerce, and the Supreme Court of the United States sustained his contention, saying: ‘The Supreme Court of the State gave much weight to the dealer’s past conduct and animating purpose, and relied upon the language quoted from Austin v. Tennessee, 179 U. S., 343; 21 Sup. Co., 132; 45 L. Ed., 224, and Cook v. Marshall County, 196 U. S., 261; 25 Syp. Ct., 233; 49 L. Ed., 471. Considered in the light of our former decisions, if the business carried on by plaintiff in error after removal of his office to Stillings, had been conducted by a dealer who had always operated from that place, we think there could be no serious doubt of its interstate character. And we cannot conclude that a legal domicile in Kansas, coupled with a reprehensible past and a purpose to avoid the consequences of the statutes of the State, suffice to change the nature of the transactions.’ Kirmeyer v. State of Kansas, 236 U. S., 568; 36 Sup. Ct. 419; 59 L. Ed., 721.”
*478I am driven to tbe conclusion that where a message is actually transmitted through another State, although the point of origin and the point of destination are both within the same State, such message constitutes interstate commerce, irrespective of the motive which prompted the company in sending the message outside the State. I think it plainly deducible from the language of the Supreme Court of the United States, in Kirmeyer v. State of Kansas, 236 U. S., 568, quoted and commented on by the Supreme Court of Virginia in Tel. Co. v. Mahone, supra. See, also, Tel. Co. v. Boles (Va.), 98 S. E., 645, decided 13 March, 1919. In that case the Supreme Court of Virginia, referring to the Mahone case, says:
“It was contended in the Mahone case, as here, that, inasmuch as the message could have been sent over an intrastate route, the company could not impress upon-it an interstate character by a different routing. But this Court held, upon authority, that the interstate character of the message must be tested by the actual facts as to its transmission, and not by the motives of the company; and, further, as a necessary corollary from the decision in the Bolling case, that the adoption by the company of an interstate route of transmission relegated the transaction to the domain of Federal control.”
See, also, the opinion of the Supreme Court of Missouri in the case of Taylor v. Tel. Co., 204 S. W., 818.
Under these authorities and others which can be cited, I am convinced that where it appears that the message was transmitted over wires running through more than one State, the fact itself is controlling and the Court cannot go into the questions of the motives of the company, although it may appear that there were routes wholly within the State over which the message might have been sent. There is no statute in North Carolina which makes it compulsory upon telegraph companies doing business within this State to transmit messages to points within the State over wires wholly within the State, and until such statute is enacted, I see no way by which telegraph companies can be restricted in the manner in which they shall transmit the messages of their customers. It must be admitted that the only duty the telegraph company owes to the customer is to transmit his message accurately and with celerity. If it can perform this duty as well by using one wire as another, I don’t know any way by which its choice can be interfered with. I am not at all alarmed at the suggestion that the telegraph companies, by routing intrastate messages out of the State, can avoid the rate fixed by the State for such business. The State has the undenied right to fix the rate for transmitting messages between points in the State, provided the rate is reasonable and not confiscatory. This has been acquiesced in by the telegraph companies for many years, and it is too *479late now to question the power. By routing the message on wires running into an adjoining State and back into this State, the company cannot evade the State law fixing rates as long as it continues to do business in the State. The difference is this: There is a .law fixing rates within the State on intrastate messages, but there is no statute requiring such message to be transmitted over wires wholly within the State. Therefore, the company can transmit them over any lines it sees fit if it discharges fully its duty to the patrons.
I admit that the decision of the Court in this case comes within the authority of Speight v. Tel. Co.f at this term. I was not present when the Speight case was decided, and take this opportunity to express my views with the purpose hereafter to cheerfully acquiesce in the judgment of my brethren.
AllbN, J., concurs in this opinion.