The opinion
AlleN, J.
The liability of the defendant depends, under his Honor’s charge, upon the single question as to whether the agent of the defendant at Jacksonville understood the message which the operator of the telephone company attempted to transmit, and this is free from objection, unless there is evidence that the agent of the telephone company was also the agent of the defendant telegraph company.
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If there is evidence of this fact tbe charge is erroneous, because it prevented the jury from considering an aspect of the case favorable to the plaintiff, and which might have been determinative of the first issue in his favor.
In other words, if the agent of the telephone company was also the agent of the telegraph company, the message was delivered to the telegraph company when it was received by the agent of the telephone company, and, in our opinion, there is evidence in the record tending to sustain this position of the plaintiff.
Miss Murrill, agent of the telephone company, testified: “We did receive messages for them and made out tickets against the Western Union. We collected for the Western Union and remitted at the end of the month. I phoned those messages to the operator at Jacksonville. He advised me that the cost was $1. I was working at that time in the office of the telephone company. People came there and asked me to phone messages to the telegraph people. The telegraph people would tell us to collect the charges for them. That is all we did. The telegraph office had no other agent at Eichlands. The operator at Jacksonville told me to collect the charges for all the telegrams. I had received messages before this for the Western Union. I stayed there a year after this and received a great many others for them. I collected the money for them and remitted it to the Western Union.”
If this evidence is believed it goes far towards establishing the fact that the operator at Eichlands was also the agent of the telegraph company, and indeed comes within the language of section 440, subsection 1 of the Eevisal, defining a local agent upon whom service of process may be made as “any person receiving or collecting money within this State for or in behalf of any corporation of this or any other State or government.”
The defendant says, however, that the plaintiff cannot avail himself of this evidence because of the allegation in the complaint that the telegram was delivered at Jacksonville.
This might have been a valid objection under the old forms of pleading, although it is said to be “common learning that allegations of time and place are not in general material or traversable”
(Pegram v. Stoltz,
67 N. C., 147 ), but under The Code (Eevisal, section 515), “no variance between the allegation in a pleading and the proof shall de deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action upon the merits,” and there is nothing in the record to indicate that the defendant did not have present at the trial all of the evidence that was available to it, and there is no contention that it was misled.
Of course, if an allegation of time and place is made and a party has prepared his evidence based wholly upon the allegation, and is surprised
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at the trial by the offer of evidence of another time or place, the judge will and ought to give the opportunity to meet the evidence of the adverse party.
For the error pointed out a new trial is ordered.
New trial.