{
  "id": 8656902,
  "name": "SHEPARD v. TELEGRAPH COMPANY",
  "name_abbreviation": "Shepard v. Telegraph Co.",
  "decision_date": "1906-12-04",
  "docket_number": "",
  "first_page": "244",
  "last_page": "247",
  "citations": [
    {
      "type": "official",
      "cite": "143 N.C. 244"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "135 N. C., 465",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "107 N. C., 456",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
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      "cite": "124 N. C., 459",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "cite": "64 N. C., 56",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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    {
      "cite": "94 N. C., 847",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8652235
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      "case_paths": [
        "/nc/94/0847-01"
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    {
      "cite": "142 N. C., 621",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8652663
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/142/0621-01"
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    {
      "cite": "139 N. C., 35",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T18:13:26.496500+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "SHEPARD v. TELEGRAPH COMPANY."
    ],
    "opinions": [
      {
        "text": "ClauK, 0. J.\nTbe Court charged tbe jury: \u201cTbe 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.\u201d Tbe first pai*a-graph was correct, tbe latter incorrect.\nTbe 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 \u201cYes.\u201d 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:\n\u201cTbe 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 o\u00ed 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 wbo lias not tbo burden of tbe issue is not bound to disprove the actor\u2019s 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.\u201d\nIn 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.\nNor can we approve his Honor\u2019s instruction that the jury had \u201ca right to take into consideration their own\u2019 feelings.\u201d 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.\nThe plaintiff testified that he was gre'atly grieved and it almost killed him because he could not be at his father\u2019s deathbed and funeral. This evidence was competent. It is true that where close relationship exists mental anguish is presumed, but this does not exclude the more direct proof by the plaintiff\u2019s own testimony. In Thompson v. Tel. Co., 107 N. C., 456, a similar exception was said to be \u201cwithout merit.\u201d See also Hunter v. Tel. Co., 135 N. C., 465, where it is said that mental anguish \u201cis a matter of proof, and may be inferred from all the surrounding circumstances, as well as the personal testimony of the plaintiff.\u201d In Harrison v. Tel. Co., ante, Brown, J., says that \u201cthe 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.\u201d But for above errors in the charge there must be a\nNew Trial.",
        "type": "majority",
        "author": "ClauK, 0. J."
      }
    ],
    "attorneys": [
      "Holmes & Valentine and B. A. -Justice for tbe plaintiff.",
      "Merriclc & Barnard for tbe defendant."
    ],
    "corrections": "",
    "head_matter": "SHEPARD v. TELEGRAPH COMPANY.\n(Filed December 4, 1906).\nTelegraphs \u2014 Dela/y in Delivery \u2014 Presumption of Negligence \u2014Burden of Proof \u2014 Mental Anguish \u2014 Elements of Damage \u2014 Jurors\u2019 Own Feelings \u2014 Evidence\u2014Presumption of Menial Anguish \u2014 Proof in Aid of Presumption.\n1. In an action to recover damages for delay in the delivery of a message, the Court charg-ed the jury, \u201cThe 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.\u201d The first paragraph was correct, the latter incorrect.\n2. The party who has not the burden of the issue is not bound to- disprove the actor\u2019s 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.\n3. 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 \u201ca right to take into consideration their own feelings\u201d 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 \u2014 the amount to be determined, not by their own feelings, but by the evidence.\n4. 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\u2019s deathbed and funeral.\n5. The fact that mental anguish is presumed -where close relationship exists, does not exclude the more direct proof by the plaintiff\u2019s own testimony.\nAotioN 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.\nHolmes & Valentine and B. A. -Justice for tbe plaintiff.\nMerriclc & Barnard for tbe defendant."
  },
  "file_name": "0244-01",
  "first_page_order": 284,
  "last_page_order": 287
}