(after stating the facts). Appellant contends that there can be no recovery on the contract in this case because the contract was made in Missouri, and in that State damages for mental anguish are not allowed; citing Connell v. Western Union Tel. Co., 116 Mo. 34. Appellant further contends that there can be no recovery for negligence in failing to deliver the telegram because it is not shown that the negligence occurred in this State. Citing Western Union Tel. Co. v. Crenshaw, 93 Ark. 415. ■ These contentions can not be sustained. While it is true that the cause of action under the statute grew out of a contract that was made in Missouri, yet the negligent breach of that contract, constituting the tort, is sufficiently shown by the evidence to have occurreid in this State, and that under our statute makes the cause of action complete for damages for mental anguish. The testimony of the sender of the message on this point was: “That he handed the telegram to the agent, and that the agent placed it on the table before him, and turned instantly to the keyboard and tapped on it a few times, and turned to witness, and said, ‘All right,’ and marked ‘O. K.’ on the message, and later, in reply to the inquiry as to whether he had received a reply, the agent stated he 'supposed they had got it.’ ” There was also testimony to the effect that there were no stations on the Missouri side of the line between Campbell and Paragould. It was further in evidence that operators do not send messages unless they get an answer to their call from the other end of the line. This testimony fully warranted the jury in finding that the telegram had been sent by the agent in Missouri to the agent in Arkansas. The acts of the agent with reference to the message at the time indicated that he was sending the message, and, as he could not send it without some one at the other end of the line answering his call, if he was sending it over the customary route to Paragould, it must have been an agent in Arkansas that was answering the call. The answer of the agent to the inquiry as to whether he had received a reply also tended to show that the message had been sent by him. True, the testimony of the agent at Paragould to the effect that he was the only operator there? and that he did not handle the message in suit, tended to show that the message had not been sent, and to rebut the testimony above on behalf of appellee tending to show that the telegram had been sent. This testimony on behalf of appellee and appellant made it peculiarly a question for the jury to determine whether the telegram had been sent by the agent in Missouri to the agent in Arkansas, and their finding that it had been sent is fully warranted by the evidence.
We find no error prejudicial to appellant in the instructions.
The court correctly charged the jury in its instruction No. 5 that if they found from the evidence that the message was delivered to the company at Campbell, Missouri, -for transmission to Chickasawba, Arkansas, and that all charges were paid, then the presumption arises that it was duly transmitted to its destination and delivered; that if the evidence showed that the message was not delivered, this would not overcome the presumption that the message was sent to its destination. This instruction is predicated upon the presumption that the agents at the points where the message is received for transmission and delivery have done their duty. A message could be received for transmission and sent to its place of destination and received there by the agent, and yet not be delivered to the sendee through some negligence of the company thereafter. Hence the prima facie case of negligence that is made upon the failure of the company to transmit and deliver a telegram that has been received for transmission and the charges paid therefor is not overcome merely by proof that the telegram was not delivered to the sendee. The case under the evidence comes well within the well-established rule that whenever the plaintiff shows a prima facie case of injury against the defendant, and shows resultant damages, there arises a presumption of negligence on the part of the defendant, which he must overcome in order to exonerate himself. See Western Union Tel. Co. v. Short, 53 Ark. 434, 442; Ark. Tel. Co. v. Ratterree, 57 Ark. 435.
The instructions, on the whole, conformed to this principle, and were correct.
The judgment is affirmed.
Kirby, J., dissenting.