#### SHEPARD v. TELEGRAPH COMPANY.

(Filed December 4, 1906).

Telegraphs — Dela/y in Delivery — Presumption of Negligence —Burden of Proof — Mental Anguish — Elements of Damage — Jurors’ Own Feelings — Evidence—Presumption of Menial Anguish — Proof in Aid of Presumption.

1. In an action to recover damages for delay in the delivery of a message, the Court charg-ed 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.

2. 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 preponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced.

3. In an action to recover damages for mental anguish on account of the delay in the delivery of a telegram, an instruction on the issue of damages that the jury had “a right to take into consideration their own feelings” was erroneous, as' a jury has no right to do more than give the plaintiff recompense for the anguish he suffered from the negligence of the defendant — the amount to be determined, not by their own feelings, but by the evidence.

4. It was competent for the plaintiff to testify that he was greatly grieved and it almost killed him because he could not be at his father’s deathbed and funeral.

5. The fact that mental anguish is presumed -where close relationship exists, does not exclude the more direct proof by the plaintiff’s own testimony.

AotioN by D. M. Sbeparcl against Western Union Telegraph Company, heard by Judge M. El. Justice and a jury, at the May Term, 1906, of the Superior Court of Hendue-SON. From a judgment for plaintiff the defendant appealed.

*245 Holmes & Valentine and B. A. -Justice for tbe plaintiff.

Merriclc & Barnard for tbe defendant.

ClauK, 0. J.

Tbe Court charged tbe jury: “Tbe message not having been delivered until a week afterwards, tbe law presumes negligence on tbe part of tbe defendant company, but it is not such a presumption as could not be rebutted. But it requires proof on tbe part of tbe defendant by tbe greater weight of tbe evidence that it did exercise due care in tbe effort to deliver tbe message.” Tbe first pai*a-graph was correct, tbe latter incorrect.

Tbe burden of tbe issue as to negligence was upon tbe plaintiff. If no evidence bad been offered in rebuttal, tbe Corirt might have told tbe jury that if they believed tbe evidence, to answer that issue “Yes.” But when evidence was offered in rebuttal it was not incumbent upon tbe defendant to prove it by a preponderance of testimony, but upon all tbe testimony it was tbe duty of tbe plaintiff to satisfy tbe jury by a preponderance of tbe evidence that tbe defendant was guilty of negligence. This has been recently discussed. Board of Education v. Makely, 139 N. C., 35, citing a very apposite passage from 1 Elliott Ev., sec. 139:

“Tbe burden of tbe issue, that is, tbe burden of proof, in tbe sense of ultimately proving or establishing tbe issue or case of tbe party upon whom such burden rests, as distinguished from tbe burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding oí going forward often does shift from one party to the other, and sometimes back again. Thus, when tbe actor has gone forward and make a prima facie case, tbe other party is compelled in turn to go forward or lose bis case, and in this sense tbe 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 tbe call of a prima facie case or presumption in favor of tbe second party. But tbe party *246wbo lias not tbo burden of tbe 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 preponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced.”

In criminal cases, when a homicide with a deadly weapon is proved or admitted, there is a presumption of law that the killing is murder, and the burden is on the prisoner to prove all matter in mitigation or excuse to the satisfaction of the jury, State v. Matthews, 142 N. C., 621; and when a totally independent defense is set up, as insanity, which is really another issue, State v. Haywood, 94 N. C., 847, the burden of that issue is on the prisoner. But the burden of the issue as to the guilt of the prisoner, except where the law raises a presumption of law as distinguished from a presumption of fact, remains on the State throughout, and when evidence is offered to rebut the presumption of fact raised by the evidence, the burden is still on the State to satisfy the jury of the guilt of the prisoner upon the whole evidence. Notably, when the prisoner offers proof of an alibi, for example, which goes to the proof of the act. State v. Josey, 64 N. C., 56.

Nor can we approve his Honor’s instruction that the jury had “a right to take into consideration their own’ feelings.” If this was correct, damages would depend not upon evidence, but upon the difference in the feelings of the individuals composing a jury. A jury has no right to do more than give the plaintiff a fair recompense for the anguish he suffered from the negligence of the defendant, the amount to be determined, not by their own feelings, but by the evidence. Cashion v. Tel. Co., 124 N. C., 459.

The plaintiff testified that he was gre'atly grieved and it almost killed him because he could not be at his father’s deathbed and funeral. This evidence was competent. It is *247true that where close relationship exists mental anguish is presumed, but this does not exclude the more direct proof by the plaintiff’s own testimony. In Thompson v. Tel. Co., 107 N. C., 456, a similar exception was said to be “without merit.” See also Hunter v. Tel. Co., 135 N. C., 465, where it is said that mental anguish “is a matter of proof, and may be inferred from all the surrounding circumstances, as well as the personal testimony of the plaintiff.” In Harrison v. Tel. Co., ante, Brown, J., says that “the condition of the mind is as susceptible of proof as the state of the digestion, and can be proved by the personal testimony of the sufferer.” But for above errors in the charge there must be a

New Trial.