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three-fourths of a legal quorum. Three-fourths of the members elected were not required: Warnock v. Lafayette, 4 La. Ann. 419. In South Carolina it is held that where, of eighteen managers (a board constituted to try a certain election) appointed by the legislature, two refused to qualify, one was disqualified and one was dead at the time the board of managers convened, the remaining fourteen, being all the members in esse, properly constituted the board and might act by a majority of the fourteen: State v. Deliesseline, 10 S. C. 52. It is held in Missouri that an amendment is ratified by the "House" within the meaning of the constitution of that state when it is ratified by two-thirds of a legal quorum; that when a legal quorum was present, that was in 115 law the "House": State v. McBride, 4 Mo. 303, 29 Am. Dec. 636. See, also, Sanders v. Ellington, 77 N. C. 255.
In construing the meaning of the words, "with the concurrence of a majority of the justices of the peace," this court has held that, where a majority of the justices of the county are assembled, the justices were in legal session, and a majority of that majority could legally act: Cotton Mills v. Commissioners, 108 N. C. 678, 13 S. E. 271.
We are of the opinion, therefore, in this case that the words "entire board" mean all the members of the board in existence and not all those originally elected. When the five members assembled they constituted a legal board, and a majority of that five had the right to pass any ordinary matter; but as to borrowing money or creating indebtedness, such ordinances must receive the sanction of three-fourths of the then membership of the board, whether present or not. Affirmed.
A Majority of the Members of a Legislative Body constitutes a quorum, in the absence of a constitutional provision by the power creating the body: State v. Ellington, 117 N. C. 158, 53 Am. St. Rep. 580. The word "house" as applied to a branch of the legis lature means a number of members sufficient to constitute a quorum to do business; and an amendment to the constitution ratified by two-thirds of a majority of all the members elected is ratified by two-thirds of that house: State v. McBride, 4 Mo. 303, 29 Am. Dec. 636.
The "Majority of the Electors" referred to in a constitution as requisite to the ratification of an amendment thereto means the majority of the electors voting upon the question of amendment, and not a majority of all the electors of the state or of those voting at the election: Green v. State Board of Canvassers, 5 Idaho, 130, 95 Am. St. Rep. 169.
SHEPARD v. WESTERN UNION TELEGRAPH COMPANY.
[143 N. C. 244, 55 S. E. 704.]
TELEGRAPH COMPANIES-Delay in Delivery of Telegram— Presumption of Negligence.-If a telegram is not delivered until one week after it is sent, the law presumes negligence on the part of the telegraph company, but such presumption is rebuttable. (p. 796.) TELEGRAPH COMPANIES-Delay in Delivery-Burden of Proof. In an action to recover for negligent delay in the delivery of a telegram, the burden as to the negligence is upon the plaintiff; and after all the evidence, direct and in rebuttal, is in, it is still the duty of the plaintiff to satisfy the jury by a preponderance of the evidence that the defendant was guilty of negligence. (p. 797.)
EVIDENCE-Burden of Proof. 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 proponderance, no matter whether it is because the weight of evidence is with the other party or because the scales are equally balanced. (p. 798.)
TELEGRAPH COMPANIES Delay in Delivery of Telegram. In an action to recover for mental anguish caused by negligent 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' is erroneous. The jury has only a right to give the plaintiff recompense for the anguish he has suffered from the negligence of the defendant, to be determined, not by their own feelings, but by the evidence. (p. 798.)
TELEGRAPH COMPANIES-Delay in Delivery of TelegramEvidence of Mental Anguish.-In an action to recover for mental anguish, caused by the negligent delay in the delivery of a telegram, the plaintiff is competent to testify that he was greatly grieved, and that it almost killed him, because of such delay he could not be at his father's deathbed and funeral. (p. 798.)
EVIDENCE-Mental Anguish.-If close relationship exists, mental anguish caused by death is presumed, but this does not exclude more direct proof by the plaintiff's own testimony. (p. 798.)
Holmes & Valentine and B. A. Justice, for the plaintiff.
Merrick & Bernard, for the defendant.
245 CLARK, C. J. The court charged the jury: "The message not having been delivered until a week afterward, 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 of Education v. Makely, 139 N. C. 31, 51 S. E. 784, citing a very apposite passage from 1 Elliott on Evidence, section 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 which 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 going forward 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 party. But the party 246 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."
In criminal cases, where 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, 55 S. E. 342); 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. Western Union Tel. Co., 124 N. C. 459, 32 S. E. 746, 45 L. R. A. 160.
The plaintiff testified that he was greatly grieved, and it almost killed him because he could not be at his father's deathbed and funeral. This evidence was competent. It is 247 true 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. Western Union Tel. Co., 107 N. C. 449, 12 S. E. 427, a similar exception was said to be "without merit": See, also, Hunter v. Western Union Tel. Co., 135 N. C. 458, 47 S. E. 745, 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. Western Union Tel. Co., 143 N. C. 147, 55 S. E. 435, 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.
The Damages Recoverable Against Telegraph Companies for negligence in the transmission and delivery of telegrams are consid ered in the recent note to Kagy v. Western Union Tel. Co., 117 Am. St. Rep. 276.
The Question of When a Presumption of Negligence arises is discussed in the note to Cincinnati Traction Co. v. Holzenkamp, 113 Am. St. Rep. 986. The presumption of due care is the subject of a note to Chicago etc. Ry. Co. v. Wilson, 116 Am. St. Rep. 108.
PETERSON v. SOUTH AND WESTERN RAILWAY COMPANY.
[143 N. C. 260, 55 S. E. 619.]
RAILROADS Licensees-Persons Entering Cars to Make Purchases. A railroad company carrying on its cars venders of fruit, confectioneries, or newspapers for sale to its passengers, does not invite or induce the public to enter into them at stations for the purpose of making purchases, and a person who is in the habit of entering the cars for that purpose without objection, inducement or invitation on the part of the company or its employé, is a mere permissive licensee. (p. 801.)
RAILWAYS.-Persons Entering a Car to Purchase Fruit or Other Things Sold Thereon, Assume the Risk, and cannot recover in the absence of wanton injury. Hence, they cannot recover for injury due to a sudden starting of the train. (p. 804.)
J. C. Biggs, for the defendant.
260 CONNOR, J. Moses Peterson, on his own behalf, testifies: "I was at Huntdale, in this county, May 2, 1903. I went up on the train to that place and got off about 12 o'clock; the train returning passed there about 5 or 6 on its way to Johnson City. I live in Yancey county, and was about to start home on my wagon when the train came on, but while it was stopped at station I went on the train to purchase some lemons. It 201 was a mixed train, and I got on a freight-car where the lemons were. There was a door on each side. There were steps to the door and up which I went. Moses Wilson and Van Adkins went on with me. There was a man in there standing in one corner and had lemons and some other fruit to sell. They were in the rear end of the car. The car doors were about four feet wide. Both doors were open. I reached him a dollar and told him to give me three lemons. He says, 'The train is going to start in a minute.' I says, 'Well, hand me the dollar and I'll get out of here.' He handed me the dollar, and as he reached it to me it dropped on the floor. I stooped down to pick it up. The train started and gave a jerk and threw me out of the door. I had picked up the dollar and was straightening up when the train gave the jerk. There was no signal given of the movement of the train either by the bell or whistle. It threw me five or six feet to the door and out of the door on the ground. The door was nearly four feet from the ground, and I fell five or seven feet from the car on my left side and leg,