#### W. B. DOWDY and wife v. WESTERN UNION TELEGRAPH COMPANY.

(Decided April 25, 1899).

Telegraph Companies- — -Agents—Negligence—Mental Anguish.

1. Agency is a matter of law purely, when the facts are undisputed.

2. Where by the custom and rules of the defendant company, their telegraph offices at Sanford and Aberdeen, two places on the Augusta Air Line R. R., were closed to public business between 7 o’clock P. M., and 7 o’clock A. M., and between those hours the night operators of the Railroad Company were on duty for railroad business only, but the offices were not in fact closed, and the night operators received messages for transmission and the usual charges, which were both turned oyer to the day operator next morning. Held, that the night operators were agents of the Telegraph Company as well as of the Railroad Company, both for transmission and delivery,

í. The defendant company cannot keep its offices open, receive messages for pay, and then when a negligent delay in their delivery service 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.

Civil ActiON for damages for mental anguish occasioned by negligence in delivery of a message, tried before Timber-lake, at September Term, 1898, of Chatham Superior Court.

The plaintiffs resided at Sanford, on the Augusta Air Line Railroad. The male plaintiff went on business to Aberdeen, on the same R. R., leaving at home his wife and infant child. On February 21, 1898, about 2 o’clock p. m., the child became suddenly very ill. That night between 8 and 9 o’clock, Mrs. Dowdy sent to the telegraph office, at Sanford, to be transmitted to her husband, the following dispatch:

*523Sanford, N. C., Eeb. 21, 1898.

To W. B. Dowdy, Aberdeen, N. C.:

Come borne at once. Baby is very sick.

Mes. W. B. Dowdy.

Tbe dispatch was sent and was received by the operator at Aberdeen at 9:45 that night, but was not delivered to W. B. Dowdy until next morning at 1 o’clock, when it was handed to him along with another dispatch, dated Eebrnary 22, 1898, informing him of the death of his child, which occurred at o o’clock that morning.

If the first dispatch had been delivered in time the plaintiff would have taken train, known as “the Atlanta Special,” which passed Aberdeen at 12 o’clock that night, and arrived at Sanford at 1 o’clock same night. As it was, he reached Sanford next day at 10 o’clock a. m., and found his wife weeping and in great distress. Mrs. Dowdy testified, it would have been a great comfort to her to have had her husband with her then. Baby cried for its father, and it greatly distressed her, that it cried for him and he was not there. When the dispatch was carried to the telegraph office for transmission, the messenger was assured by the operator in charge, that it would be delivered all right, as it was known Avhere Mr. Dowdy lodged at Aberdeen. With this assurance he paid for the message, and reported to Mrs. Dowdy what the operator said.

The defense was that according to the rules and custom, the telegraph lines were closed to business of the public between 7 p. m., and I a. m., and were operated by Railroad night officials, for Railroad business, who, while they received messages, as matter of accommodation to the public, and pay for transmission, reserved both for the telegraph operators next morning, who attended to the business when they came *524on duty after I o’clock. The defendant insisted that these night operators were not agents of the Telegraph Company, but of the Railroad Company, and that the defendant was not liable for their negligence in either transmission or delivery, if negligence there was — which was denied.

His Honor declined to give special instructions asked for on this line of defense. Defendant excepted. Verdict for plaintiffs, assessing damages at $125Q.

Judgment. Appeal by defendant.

Mr. R. C. Strong, for defendant (appellant).

Mr. H. A. London, for plaintiffs.

MONTGOMERY, J.

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 despatch sent by the fame 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 on 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.

*525J. M. Dowdy, tbe father of the male plaintiff, testified that he delivered the telegram to Huntley, the agent of the defendant at Sanford, on the 21st of February, 1898, at eight 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 Hnion Telegraph Company blank; that he put it “Western Hnion 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 the 21st of February; that when he received it he wrote it out on'a Western Hnion 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, hun^ them on a hook in the office where the Western Union operator could 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 *526operator, knew where he was when 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 I 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 I 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 22nd.

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 *527tbe testimony of tbe defendant’s witnesses, tbe person who received tbe telegram at Sanford, and tbe one wbo received it at Aberdeen, notwithstanding that they were in tbe employment of tbe Railroad Company for receiving and transmitting of railroad business dispatches, were also tbe agents of tbe defendant, and we think bis view tbe right one. These night operators were in tbe offices of tbe defendant, and were using tbeir wires and tbeir instruments. Tbe offices were not closed in fact, but open, and tbe persons wbo were in charge were receiving messages and making tbe usual charges .therefor. Tbe defendant company can not keep its offices open, receive messages for pay, and then when a negligent delay in tbeir delivery service occurs, screen themselves by saying that tbe persons wbo are in tbeir places of business, take tbe messages and receive payment therefor are not its agents. Johnson, tbe night operator at Aberdeen, wbo received tbe message from Sanford, stated that when be received such messages be made memoranda on them at tbe time of tbeir receipt according to rules, and bung them on tbe book for tbe agent of tbe company nest morning. What rules did be refer to ? Certainly tbe railroad authorities bad nothing to do with business other than that which concerned railroad transactions. Tbe rules must have been for tbe benefit of tbe defendant company, and to keep accounts and checks between and on tbe agents at tbe different stations wbo were receiving and transmitting telegrams and receiving charges therefor. Agency is a matter of law purely when tbe facts are undisputed. Tbe facts in this case as. to bow this telegram was received and transmitted are undisputed, and they, in law, in our opinion, constitute tbe person in tbe office at Sanford, to whom tbe message was delivered for transmission, and tbe one in tbe office at Aberdeen wbo received it, agents of tbe defendant, and that was tbe view His Honor took of *528the matter, and there was no error in the manner in which he ■submitted the case to the jury. Erom the 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.

Affirmed.

Eaibclotíi, O. J., dissents.