Hunter v. Western Union Tel. Co

• Decision Date: 10 June 1902
• Citation: 41 S.E. 796,130 N.C. 602
• Court: North Carolina Supreme Court
• Parties: HUNTER v. WESTERN UNION TEL. CO.

41 S.E. 796

130 N.C. 602

HUNTER

v.WESTERN UNION TEL. CO.

Supreme Court of North Carolina.

June 10, 1902.

TELEGRAPH COMPANY—FAILURE TO DELIVER MESSAGE—PRESUMPTION OF NEGLIGENCE—NOT CONCLUSIVE. In an action against a telegraph company for failure to deliver a message, the fact that a message which had been received had not been delivered was prima facie evidence of negligence; but the presumption was not conclusive, and as the jury, considering the evidence in the light most favorable to the defendant, might have found that it had not been negligent, this issue should have been submitted to them.

Appeal from superior court, Guilford county; Shaw, Judge.

Action by T. A. Hunter against the Western Union Telegraph Company. Prom a judgment for plaintiff, defendant appeals. Reversed.

King & Kimball and F. H. Busbee, for appellant

Scales & Scales, for appellee.

DOUGLAS, J. This is an action for damages for mental anguish, alleged to have been suffered by the plaintiff in consequence of the failure of the defendant to promptly deliver a telegram announcing the death of a child five years of age, who was the plaintiff's second cousin, and at whose funeral the plaintiff would otherwise have been present The comparatively distant relationship between the plaintiff and the deceased gave rise to an interesting discussion as to its bearing upon the right of recovery, which is not necessary for us to consider in the present aspect of the case. It makes no difference what the plaintiff may have suffered if such suffering was not caused by the negligence of the defendant. In the very nature of things, a telegraph company cannot insure the delivery of a message, and can be held liable for a nondelivery only upon its failure to exercise such reasonable care and diligence as the circumstances of the case may require. In view of the nature of telegraphic communication, a failure to transmit and deliver a message within such reasonable time as will effect its purpose is in its nature and results equivalent to nondelivery. It is true, the failure to deliver a message shown or admitted to have been received by the company is prima facie evidence of negligence; but the presumption arising therefrom is not conclusive. It merely shifts to the defendant the subsequentburden of proof upon that issue; that is, the defendant must then show by the preponderance of the evidence that it has not been guilty of negligence, and of the weight of such evidence the jury alone are the lawful judges. This brings us to the dominating exception in the case, which was to the direction of his honor that if the jury believed the evidence they should answer in the affirmative...