This action was brought to recover damages for mental anguish alleged to have been suffered by the plaintiffs on account of the alleged negligent failure of the defendant to deliver a certain telegraphic dispatch sent by the feme plaintiff to the male plaintiff, her husband. In the wife's telegram she informed the husband that their child was very sick, and requested him to come home at once. The wife was at Sanford and the husband at Aberdeen, both places being on the Augusta Air Line Railroad. The defense of the defendant as set up in their answer was that the message was not delivered to their agent at Sanford, nor transmitted to their agent at Aberdeen, but was delivered for transmission to the night operator of the Seaboard Air Line system of railroad, at Sanford, and was received by the night operator of the same railroad company at Aberdeen, and that upon the delivery of the telegram to the defendant's agent at Aberdeen, when he went off duty the next morning at seven o'clock, by the night operator of the railroad company, it was promptly delivered to the sendee, the male plaintiff.
J. M. Dowdy, the father of the male plaintiff, testified that (525) he delivered the telegram to Huntley, the agent of the defendant at Sanford, on 21 February, 1898, at 8 p. m., to be transmitted to the agent of the company at Aberdeen for the sendee, the male plaintiff, and paid the charges. Huntley denied that he received the telegram from J. M. Dowdy. He said, however, that on the next morning on going to his work in the office of the defendant company he found on the hook the message; that it was attached to a Western Union Telegraph Company blank; that he put it "Western Union Telegraph Company's business," and that the night operator gave him the money for transmitting the message which he turned over to the defendant company.
S. A. Johnson, a witness for the defendant, testified that he was the night operator of the S. A.L.R. R. Co., and that he received the telegram at 9:45 p. m. on 21 February; that when he received it he wrote it out on a Western Union blank; that when messages not on railroad business came he always did this, and, after making memoranda thereon as to the time of transmission and receipt, according to rules, hung them on a hook in the office where the Western Union operator could *Page 350 get them when he came on duty in the morning. Johnson further said that he never took such messages for delivery; that there was no provision made for delivering messages at night. Johnson, Huntley and W. F. Williams, another witness of the defendant, all testified that at Sanford and Aberdeen the custom of the defendant company was to close those offices for public business, from 7 p. m. to 7 a. m. of each day, and that after 7 p. m. the night operators of the railroad company went on duty for railroad business only. The house in which the male plaintiff was staying at Aberdeen was about a fourth of a mile from the office of the defendant company, and Johnson, the night operator, knew where he was when (526) the telegram was received. There was a train leaving Aberdeen for Sanford at 12:02 a. m., and the plaintiff could have arrived at the latter place an hour afterward had the telegram been delivered to him before the departure of the train from Aberdeen. It was not delivered to him until 7 a. m. the next morning, too late for the plaintiff to arrive at Sanford before the baby's death. The defendant's contentions were that the defendant company had the right to establish reasonable rules for the regulation of its business, and in the exercise of that right that they had made a rule that their offices at Aberdeen and Sanford should be closed for public business each day from 7 p. m. to 7 a. m.; that the office hours for business at Sanford when the telegram was delivered there to the night operator of the railroad company having been over, the defendant could not be held liable for any neglect on the part of the railroad operators at either Sanford or Aberdeen as to the delivery of the telegram to the male plaintiff; that even if the person who received the telegram at Sanford had been the agent of the defendant he had no right or authority to receive it contrary to the rule of the company closing the office at 7 p.m.; and that even if the agent of the defendant at Sanford had received the telegram either before or after the office hours at that point, and had transmitted it to the agent at Aberdeen after the close of business there, the defendant would not be liable for the failure of the agent at Aberdeen to deliver it to the sendee unless he had failed to deliver it within a reasonable time after the opening of the office for business on the morning of the 22d.
These contentions of the defendant were the subject-matter in various forms of those of its special prayers for instructions, which his Honor refused to give. His Honor's view of the case as is seen in his charge to the jury was that, upon the testimony of the defendant's (527) witnesses, the person who received the telegram at Sanford, and the one who received it at Aberdeen, notwithstanding that they were in the employment of the railroad company for receiving and transmitting of railroad business dispatches, were also agents of the *Page 351 defendant, and we think his view the right one. These night operators were in the offices of the defendant, and were using their wires and their instruments. The offices were not closed in fact, but open, and the persons who were in charge were receiving messages and making the usual charges therefor. The defendant company cannot keep its offices open, receive messages for pay, and then when a negligent delay occurs, screen themselves by saying that the persons who are in their places of business, take the messages and receive payment therefor are not its agents. Johnson, the night operator at Aberdeen, who received the message from Sanford, stated that when he received such messages he made memoranda on them at the time of their receipt according to rules, and hung them on the hook for the agent of the company next morning. What rules did he refer to? Certainly the railroad authorities had nothing to do with business other than that which concerned railroad transactions. The rules must have been for the benefit of the defendant company, and to keep account and checks between and on agents at the different stations who were receiving and transmitting telegrams and receiving charges therefor. Agency is a matter of law purely when the facts are undisputed. The facts in this case as to how this telegram was received and transmitted are undisputed, and they, in law, in our opinion, constitute the person in the office at Sanford, to whom the message was delivered for transmission, and the one in the office at Aberdeen who received it, agents of the defendant, and that was the view his Honor took of the matter, and there was no error in the manner in which he submitted the case to the jury. From the (528) view we have taken of the legal relation between the persons in the offices of the defendant at Aberdeen and Sanford who handled the messages, any discussion of the matters argued by the defendant's counsel involving the right of the company to establish reasonable office hours, and the benefits attendant upon that right, has become unnecessary.
NO ERROR.
FAIRCLOTH, C. J., dissents.
Cited: Kennon v. Tel. Co., 126 N.C. 236; Hendricks v. Tel. Co., ib., 311; Carter v. Tel. Co., 141 N.C. 377; Helms v. Tel. Co., 143 N.C. 394;Ellison v. Tel. Co., 163 N.C. 14. *Page 352