Hunter v. Western Union Telegraph Co.

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 can *608 not insure tbe delivery of a message, and can be held liable for a non-delivery 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 non-delivery. 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 subsequent burden of proof upon that issue. That is, the defendant must then show by the preponderance of the evidence that it has not been guilty ox 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 the issue as to the negligence of the defendant. In this we think there was error. It is needless to recapitulate the evidence; but it seems to us that, considering the evidence in the light most favorable to the defendant, and in such light we must consider it under such an instruction, the jury might have found the issue in the negative. In other words, there was more than a scintilla of evidence tending to prove that the defendant exercised due care and diligence in the premises. We do not mean to intimate that such was the preponderance of the evidence, as that is not for us to say. His Honor properly left to the jury the credibility of the testimony, and if that had been all to one effect there would have been no error. Nelson v. Insurance Co., 120 N. C., 302. But where there is a conflict of testimony, or it is susceptible of different interpretation, the issue must be left to the jury without any intimation of opinion on the part of the Court. Eller v. Church, 121 N. C., 269; Moore v. St. Railway, 128 *609 N. C., 455. In Hardison v. Railroad, 120 N. C., 492, the Court says: “But as tbe defendant introduced evidence tending to sbow there was no negligence on tbe part of defendant in billing tbe cow — that is, to rebut tbe presumption or prima facie case of plaintiff — it then became an issue of fact, which could not be found by the Court, and should have been left to the jury.” The degree of care and diligence required of a telegraph company in the transmission and delivery of messages, which on their face are of vital interest, has been too fully discussed by this Court to require further comment. Lyne v. Telegraph Co., 123 N. C., 129; Cashion v. Tel. Co., 123 N. C., 267 ; same case, 124 N. C., 459, 45 L. R. A., 160.; Laudie v. Tel. Co., 124 N. C., 528; Hendricks v. Tel. Co., 126 N. C., 304, 78 Am. St. Rep., 658; Bennett v. Tel. Co., 128 N. C., 103. For error in the direction of his Honor, there must be a New trial.