Opinion
(Filed 10 June, 1902.)
1. Negligence — Telegraphs — Evidence — Sufficiency — Mental Anguish — Verdict — Directing.
In an action for damages for mental anguish for delay in delivering a telegram, the trial judge should not direct a verdict against the defendant if there is more than a scintilla of evidence tending to prove that the defendant exercised due care and diligence.
2. Evidence — Conflicting — Sufficiency — Questions for Jury — Verdict — Directing.
Where there is a conflict of testimony, or it is susceptible of different interpretations, the issue must be left to the jury without any intimation of opinion on the part of the trial judge.
ACTION by T. A. Hunter against the Western Union Telegraph Company, heard by Shaw, J., and a jury, at September Term, 1901, of GUILFORD.
(607) The court charged the jury upon the first issue (as to negligence), that if they believed the evidence to answer said issue "Yes."
Upon the second issue, the court charged the jury, among other things, in substance, that if they believed the evidence they would find that J. S. Hunter was the father of the "Scott" referred to in the telegram, and that the plaintiff and J. S. Hunter were first cousins, and that from such relationship there is no presumption that the plaintiff suffered mental anguish on account of his inability to be present at the funeral of the child Scott, but that the burden was upon plaintiff to show by the greater weight of evidence that there existed between the plaintiff and the said Scott such tender ties of love and affection that his inability to be present at the funeral caused him to suffer mental anguish, and that such inability to be present was caused by the negligence of the defendant company.
From judgment for the plaintiff, the defendant appealed.
Scales Scales for plaintiff.
King Kimball and F. H. Busbee for defendant.
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 ago, 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 not (608) 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 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 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 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. R. R., 128 N.C. 455. In Hardison v. R. R., 120 N.C. 492, the Court (609) says: "But as the defendant introduced evidence tending to show there was no negligence on the part of defendant in killing the cow — that is, to rebut the 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. Tel. Co., 123 N.C. 129; Cashion v. Tel. Co., 123 N.C. 267; S. c., 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., 658; Bennett v. Tel. Co., 128 N.C. 103. For error in the direction of his Honor there must be a
New trial.
Cited: Baker v. R. R., 133 N.C. 34; Cogdell v. Tel. Co., 135 N.C. 434; Hunter v. Tel. Co., ibid., 461; Harrison v. Tel. Co., 136 N.C. 381; Greene v. Tel. Co., ibid., 492; Helms v. Tel. Co., 143 N.C. 395; Hoaglin v. Tel. Co., 161 N.C. 395.