Shepard v. Western Union Tel. Co

• Decision Date: 04 December 1906
• Citation: 143 N.C. 244,55 S.E. 704
• Parties: SHEPARD . v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

55 S.E. 704

143 N.C. 244

SHEPARD .

v.WESTERN UNION TELEGRAPH CO.

Supreme Court of North Carolina.

Dec. 4, 1906.

1. Telegraphs—Failure to Deliver Message: —Presumption of Negligence—Burden.

Though negligence of a telegraph company will be presumed from a week's delay in delivering a message, the presumption may be rebutted, and it is not necessary that the rebutting evidence preponderate, the burden being upon the plaintiff to show negligence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, § 61.]

2. Same—Elements of Damage.

In an action for a negligent delay in delivering a telegram, the jury could give only fair recompense for the anguish suffered and an instruction that they might be guided by "their own feelings" was erroneous.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Telegraphs and Telephones, §§ 69, 70.J

3. Same—Mental Anguish—Proof m Aid of Presumption.

The fact that mental anguish is presumed to result from a negligent delay in delivering a telegram announcing the death of a close relation does not preclude direct proof on that point.

Appeal from Superior Court, Henderson County; Justice, Judge.

Action by D. M. Shepard against Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.

Merrick & Barnard, for appellant.

Holmes & Valentine and B. A. Justice, for appellee.

CLARK, C. J. The court charged the jury: "The message not having been delivered until a week afterwards, the law presumes negligence on the part of the defendant company, but it is not such a presumption as could not be rebutted. But it requires proof on the part of the defendant by the greater weight of the evidence that it did exercise due care in the effort to deliver the message." The first paragraph was correct, the latter incorrect

The burden of the issue as to negligence was upon the plaintiff. If no evidence had been offered in rebuttal, the court might have told the jury that if they believed the evidence to answer that issue "Yes." But when evidence was offered in rebuttal it was not incumbent upon the defendant to prove it by a preponderance of testimony, but, upon all the testimony, it was the duty of the plaintiff to satisfy the jury by a preponderance of the evidence that the defendant was guilty of negligence. This has been recently discussed. Board Education v. Makely, 139 N. C. 35, 51 S. E. 784, citing a very apposite passage from 1 Elliott, Ev. § 139: "The burden of the issue—that is, the burden of proof in the sense of ultimately proving or establishing the issue or case of the party upon whom such burden rests, as distinguished from the burden or duty of going forward and producing evidence—never shifts, but the burden or duty of proceeding or goingforward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him. So, the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption In favor of the second part. But the party who has not the burden of the issue is not bound to disprove the actor's case by a preponderance of the evidence, for the actor must fail if, upon the whole evidence, he does not have a...