WALKER, J., concurring; BROWN and MANNING, JJ., dissenting. On 16 October, 1908, the plaintiff's wife, who had an infant six days old, was suddenly taken worse. The plaintiff asked the defendant's agent at Nebo to send a message to Dr. Brookshire at Bridgewater, 6 miles away. It was a little after 9 o'clock at night. The agent said that he would send it "if there was nothing the matter at the other end of the line." The message read as follows: "Dr. Brookshire, Bridgewater, N.C.: Come at once. My wife very sick. T. W. Carswell."
The plaintiff paid for the message. The message was received by the operator at Bridgewater, but was not delivered till 12 o'clock at night, when the plaintiff himself passed the station at Bridgewater, and the operator came out and handed him the message and asked him to deliver it to Dr. Brookshire. The plaintiff getting no response from Bridgewater, assumed that all was right at that end, and that the message had been received by the operator there (as in fact it had been), and (114) waited for two hours, trusting that the message had been delivered *Page 89 and the doctor would come. But the doctor not arriving, and his wife getting worse, about 11 o'clock he left his wife, who was in such agony that he expected her to die before he returned, and in this great anxiety and mental suffering, he got on his mule and rode down to Bridgewater, where he found the doctor, who immediately returned with him. Dr. Brookshire testified that he was in his office that night from 8 o'clock till 12, when the plaintiff arrived, and would have gone promptly to the plaintiff's wife if he had received the message.
The defendant's operator at Bridgewater testified that he received the message about 9 o'clock, which was after office hours, and that he wired back to the operator at Nebo that he could not deliver it before 11 o'clock. There is no evidence that this message was communicated to the plaintiff. On the contrary, when the plaintiff offered to testify as to what the operator at Nebo told him, the evidence was excluded on the objection of the defendant. The reasonable inference is that he would have testified that the information he received was that the operator at Bridgewater had wired back that he would deliver the message. The plaintiff's conduct corroborates this, for he testifies that he remained for two hours longer waiting for Dr. Brookshire, expecting him to come.
This case is "on all-fours" with Carter v. Tel. Co., 141 N.C. 374, which holds that while the telegraph company can fix reasonable office hours, yet when the operator at the sending office received this message, he waived this regulation; and when the operator at the receiving office took the message, he also waived the office hours regulation, and if he could not deliver the message he should promptly have so wired back. It is true that the operator at Bridgewater did testify that be so wired, but the burden was on the defendant to show that such service message was delivered to the plaintiff, or that without its negligence this could not be done. It is not shown that this service message (if it was sent) was delivered to the plaintiff, and, on the contrary, the plaintiff was not allowed, by reason of defendant's objection, to testify what the agent at Nebo told him, and his conduct shows that he must have been told that the message would be promptly delivered. The undisputed (115) facts are that the company through its operator at Nebo undertook to send the message and received the plaintiff's money; that the operator at Bridgewater took the message, and that the plaintiff received no notice that the message would not be delivered promptly, as he had a right to expect. The tenor of the message put the defendant on notice that mental anguish would likely result to plaintiff if the message was unreasonably delayed, and his testimony is, and the jury so find, that he suffered great mental agony by the delay. The receiving office at Bridgewater held the message from 9 o'clock till 12, and shows no excuse for the delay, in the opinion of the jury. *Page 90
In Cogdell v. Tel. Co., 135 N.C. 436, the Court said that "It is the duty of the telegraph company to promptly inform the sender of a message when, for any reason, it cannot be delivered," citing Hendricks v.Tel. Co., 126 N.C. 304; Laudie v. Tel. Co., ib., 431; Bright v. Tel. Co.,132 N.C. 324; Hinson v. Tel. Co., 132 N.C. 467; and Bryan v. Tel.Co., 133 N.C. 603, in all of which it had been so held. The same ruling has been made since in Green v. Tel. Co., 136 N.C. 507; in Carter v.Tel Co., 141 N.C. 378; and in other cases. In Suttle v. Tel. Co. the same doctrine is laid down, the Court citing many cases holding that the telegraph company may waive its office hours, and does so if it receives the message at the sending office, and also at the receiving office, if no objection is communicated back to the sender. In Cates v. Tel. Co.,151 N.C. 500, Walker, J., cites and approves Carter v. Tel. Co.,141 N.C. 378, and Suttle v. Tel. Co., 148 N.C. 480, and pertinently says of the operator at the receiving office in Carter's case: "His silence was calculated to mislead the sender, who could have procured the early attendance of her physician at her bedside by other means, if he had known of the true situation. That decision was right, and in perfect accord with our decision in this case." In the present case if the defendant company had communicated to the plaintiff that it could not promptly deliver this message, the plaintiff would have gone at once to Bridgewater, without waiting two hours as he did, witnessing the agonies of his wife, (116) and in constant expectation of the appearance of the physician. He testifies that his wife was much worse when he left at 11 o'clock, and that he despaired then of ever seeing her alive again.
There was ample evidence to submit the issue of negligence to the jury. The other exceptions are covered by repeated decisions of this Court, and need no discussion.
No error.