dissenting: Tbe facts in this case as testified to by the plaintiff are that, bis wife being quite ill, be desired to summon a physician from Bridgewater, 6 miles distant.
It was past 9 o’clock, and tbe defendant’s offices at Nebo, where plaintiff resided, and at Bridgewater were both closed to business for tbe night. Plaintiff sought tbe Nebo operator at bis residence and aroused him out of bis bed and requested him to send tbe message. Tbe operator agreed to do so “if there was nothing tbe matter at tbe other end of tbe line.”
Tbe message, offered in evidence by plaintiff, is stamped “Received at Bridgewater, 9:30 P. M.” As tbe Western Union wires were closed for tbe night, it appears in evidence that tbe message was sent over tbe railroad block wire, and received by tbe operator at Bridgewater while working for tbe railroad. It appears that the operator at Bridgewater, a village of about 100 inhabitants, worked for tbe Western Union Telegraph Company and tbe railroad company, jointly, during tbe day office *120hours, wbicb closed at 8 P. M. After that the same operator worked the railroad block wire at night, which governed the running of the trains. It belonged to the railroad, and no business messages were ever received over it. Upon receipt of the telegram in question, the operator at Bridgewater immediately informed the operator at Nebo that he could not deliver the message until 11 P. M., as he was blocking trains for the railroad (a matter of vital importance) and there was nobody awake in Bridgewater by whom he could send it.
The plaintiff testifies that he waited at his residence until near 11 o’clock, and then rode to Bridgewater for the physician, who reached his wife’s bedside before 1 o’clock A. M. the same night.
1. The ground upon which the Court bases its opinion is that the operator at Nebo should have at once notified the plaintiff that the message could not be delivered at Bridgewater until after 11 o’clock, so plaintiff could have started at once across country.
I agreed to the opinion of the Court in Carter’s case, which holds that if for any reason a telegram cannot be delivered it becomes the duty of the company to inform the sender, so he can have opportunity to supply the deficiency. But that doctrine ought not to be applied here, because it must be admitted that there was no waiver of office hours and no unconditional acceptance of the telegram, as in Carter’s case.
The operator at Nebo accepted the plaintiff’s telegram, and got up out of his bed to send it, upon condition that it could be promptly delivered, for that is what the language used means. This is not a waiver of the defendant’s rights. The operator could have refused to accept the telegram, and when accepted upon condition the plaintiff is bound by the condition.
In Cates v. Tel. Co., 151 N. C., 501 (which I think is direct authority barring a recovery in this), Mr. Justice Walker, quoting from Carter’s case, says: “We need not discuss that in this case, for, conceding that 7 P. M. was a reasonable hour for closing the defendant’s office at Spout Springs, it waived it, so far as sending the message was concerned, by actually sending this message and receiving pay therefor. This was, it is *121true, not a waiver as to the receiving office. But that office waived the closing-hour limitation by receiving the message without demur'. Had the operator at Sanford immediately replied that he could not undertake to deliver the message until next morning, and would consider it as not received, except on that condition, there would have been no contract to deliver. But the operator at Sanford did not make any objection to the receipt of the message at that hour, and says he did not make any effort to let the sending office know that it would not be delivered.”
The very thing that the operator at Sanford failed to do, the operator at Bridgewater did do, viz., notify the Nebo office at once that he could not make delivery. This was in effect a refusal of the Bridgewater operator to receive the message. Thus, according to Carter’s case, there was no waiver of .office hours at Bridgewater. Now, if the Nebo office received the telegram only on condition, and the Bridgewater operator refused to waive office hours, how can plaintiff recover under the authority of Cates’ case as well as Carter’s?
2. I think, upon the admitted facts, that the telegraph company is not liable for the acts of the operator at Bridgewater. He was not the agent of the telegraph company after 8 P. M., and not acting for it. After that hour he worked exclusively for the railroad company on its block wire, and received plaintiff’s telegram over the railroad’s wire, and not over the defendant’s.
I know of no principle of law by which the telegraph company can be held responsible for the unauthorized act of a person not pretending to act for it and actually operating the wire of a railroad in operating its trains. So we have it that plaintiff’s message was not sent over defendant’s wire and not received by its agent. How can the defendant be liable ?
3. The court permitted the following evidence to be introduced: The witness was then asked the following question: “What condition did you find Mrs. Carswell in when you arrived? State the extent of her suffering, and whether it appeared to be great or small?”
*122To these questions and answers thereto the defendant objected. Objection overruled, and the defendant excepted.
A.: “She was suffering from clots. She was suffering considerably.”
This action is not brought by the wife, but by the husband to recover damages for his alleged mental anguish in a brief delay in procuring a physician. According to plaintiff’s own evidence, he was delayed only one hour in starting for the doctor, and for this supposed one hour’s anxiety he has been awarded $300.
It must be admitted that the evidence introduced had no relation whatever to plaintiff’s cause of action, and it was well calculated to prejudice and excite the minds of the jury, and tended inevitably to aggravate the damages.
The wife’s condition was not brought about by the negligence of the defendant, and the condition the doctor found her in is irrelevant entirely to the issues in this case, and the evidence should have been excluded.
It is not a case of “harmless error,” as it was highly prejudicial to defendant.
Me. Justice MANNING concurs in this dissenting opinion.