The complaint contains two counts and each predicates a right of recovery upon a breach of contract by defendant, for its failure to transmit and deliver a telegram received from plaintiff’s agent, Abercrombie, at Birmingham, to be sent to plaintiff at Edwards-ville, containing the information of the serious illness *622of the latter’s wife. —W. U. Tel. Co. v. Cunningham, 99 Ala. 314.
These counts were amended so as to meet certain objections pointed out in the demurrer interposed to each of them. This demurrer was refiled after the amendments were allowed and overruled by the court and properly so.
To the amended complaint the defendant filed two special pleas to which a demurrer was sustained. The first of these averred that plaintiff resided outside the free delivery limits of the town of Edwardsville and that plaintiff’s agent, Abercrombie, did not deposit with the receiving officer a special charge to cover the cost of delivery and that the plaintiff’s agent did not advise that office of the fact that plaintiff resided beyond the free delivery limits of said town, and that the agent at the receiving office had no knowledge of that fact.
The other plea sets up substantially the same facts, Avith the additional averment that plaintiff had a laAV office Avithin the free delivery limits, but that his office avus closed between the time the message was received for transportation and the time the train left for Birmingham. Neither of these aver that the company transmitted the message or attempted to transmit it promptly as it contracted to do, and which the laAV required it to do. “When a message is handed in for transmission the presumption must be and is that sendee lives within the limits of free delivery, or that the sender takes the risk.of delivery unless he makes arrangements for delivery at a greater distance. And handing in such message, AA'ithout explanation, casts no duty on the transmitting operator, other than to forward the message accurately and with proper diligence. And it casts no duty on the terminal employee-or operator other than to copy the message correctly and to deliver it with all convenient speed, if the sendee resides within the free delivery limits.” — W. U. Tel. Co. v. Henderson, 89 Ala. 510, 517.
A failure to send the message raises the presumption of negligence and casts upon defendant the burden of overcoming that presumption.—27 Am. & Eng. Ency. LaAV (2nd ed.) 1090.
*623From what we have said it will readily he seen that the facts alleged in these pleas did not relieve the defendant from transmitting the message. If the defendant washed to avail himself of the fact, as a defense for its failure to deliver, that the plaintiff’s residence and place of business were beyond the free delivery limits, it should have shown by the pleas that it transmitted the message to its operator at Edwardsville promptly. Non constat the plaintiff was within the free delivery limits and his whereabouts known to its operator at that point. A failure to start the message as alleged was a breach of the entire contract. — W. U. Tel. Co. v. Way, 83 Ala. 556. The pleas were clearly bad.
There was no merit in the motion to continue the case or to strike it from the jury docket because the demand •for a jury, endorsed upon plaintiff’s complaint, was not signed by him or his attorney.
The act requiring the demand for a jury to be endorsed on the pleadings does not malee such a requirement mandatory. — Acts 1896-7, p. 808, § 11. The demand for a jury is not a pleading within rule 4 of practice, found on page 1186 of the Code.
The question propounded to Abercrombie, “You did not consider him (plaintiff) liable to you for that 25 cents, did you?”: was'clearly objectionable-as calling for the opinion of the witness. Whether plaintiff was liable to witness was a question of law and fact not determinable by him. — Birmingham Ry. & Elec. Co. v. Franscomb, 124 Ala. 621.
This witness in the course of his cross-examination testified that he sent another message to plaintiff besides the one on wdiich this action was predicated, but that he did not remember whether plaintiff had repaid him 'the charge or not. There was no error, therefore, in sustaining the objection to the question by defendant, “Did he (plaintiff) ever pay for any message except this one?” Evans v. State, 109 Ala. 11.
The questions propounded by defendant to the witness, Sightly, to which objections were sustained, constituting its 11th, 12th, 13th and 14th assignment of error, were *624each' properly excluded. The answer to each of them would have involved either the opinion or conclusion of the witness and are not within the principle applied in Choate v. Southern Ry. Co., 119 Ala. 611, conceding the correctness of the application of it in that case. Sightly Avas not an expert as-to the matters inquired of him. I-Iis duty, it appears, was to receive the message from the sender and deliver it to the operator for transmission. To permit him to state that he did all in his power to get the message off, avouIc! he a conclusion; and that everything Avas done by the operator and other agents of defendant in the office to get it off, or that nothing Avas left undone to get it off, would be an opinion. There Avas a direct conflict in the testimony of this witness and Abercrombie as to the time when this message was received at the office of defendant for transmission. Abercrombie swore that he delivered it to the receiving agent for transmission on Sunday afternoon between 4:35 and 5 p. m.; the witness Sightly swore that he received it at 6:16 p. m. The time when it was received was an important issue of fact in the case. For, if Abercrombie’s version of ‘the transaction was true, it Avas open to the jury to find that had it been transmitted promptly it would have reached the EdAvardsville office before that office closed on that day; AAdiereas, if this witness’ testimony be true, it was received by him after office hours at the EdAvardsville office. For the purpose of testing the recollection of the Avitness it was within the permissible bounds of cross-examination to ask him'as to the time he received the first message for transmission on the day preceding. The testimony of Abercrombie afforded an inference that the receiving agent bound the defendant to transmit the message promptly notwithstanding its regulations as to the office hours of the Eclwardsville office. Nothing appearing to the contrary, it is presumed that defendant’s agent who was intrusted. with receiving messages for transmission had authority to bind it by his agreement as to the time for sending it, even to the extent of disregarding the regulations as to the hours of opening and closing the office at Edwardsville. — W. U. Tel. Co. v. Crumpton, 138 Ala. 623.
*625On the other hand, Sightly testified that, when he received the message at 6:16 p. m., from Abercrombie for transmission; he told him that the office at Edwardsville had closed at 6 o’clock and that he would receive it at Abercliombie’s risk and wrote on the back of it “Accepted at senders’ risk on account of office closing early on Sundays;” that Abercrombie told him that a train would pass Edwardsville about 7 o’clock and that if his office would call Edwardsville at that time he would be sure to get it. I-Ie also testified that Abercrombie insisted that the agent at Edwardsville was at the office, and the testimony of the agent at Edwardsville showed that he was at the office on that afternoon from 6:20 to 7:50, although his office hours on Sunday afternoons were from 4 to 6.
We apprehend that on this version of the transaction it may be declared as a matter of law that it was the duty of defendant to have transmitted the message by 7 p. m., and the risk assumed by Abercrombie was 'that the Edwardsville agent would not be in his office at that hour; and that «uch an assumption by Abercrombie did not authorize the defendant to delay its transmission until the next morning. Nor did Abercrombie assume the risk of the failure of defendant’s agent at Edwardsville, if present at his office, to receive the; message if it was transmitted or his declination to answer the call if one was made on him.
The first exception reserved to the oral charge of thei court is, therefore, without merit. The court in its oral charge also instructed the jury that, if the proof showed that plaintiff sustained damages in any sum, then he was entitled to recover for mental anguish and pain occasion-' ed by his failure to receive the message in time to reach Birmingham before his wife died. In this there was error. Whether the failure to transmit and deliver the telegram was the proximate cause of plaintiff’s mental anguish occasioned by his failure to be with his wife when she died was, under the evidence, a question Of fact for the jury, and not one of law for the court. It cannot be affirmed as matter of law on the testimony that he would have been able to have caught the only train passing Edwardsville on that afternoon for Birming*626ham, had the message been transmitted promptly and delivered promptly. If Sightly’s testimony be true the message could not have been received by the Edwards-ville agent before 6:20 p. m:, nor was the defendant under any obligation to transmit it before that time. How long it would have; taken that agent to have found plaintiff in order to deliver the message to him is not shown. And again, had it been transmitted at that time and delivered promptly, the testimony tends to show that plaintiff would have had to have gone to Heflin, a distance of some seven or eight miles from Edwardsville, to have caught the train. And just how long it would have taken him to make that trip is not shown. So then, upon this phase of the testimony, whether plaintiff’s deprivation of being with his wife in her last hours was attributable to defendant’s negligent conduct was a question for the jury and not for the court. We are of the opinion that, on the testimony, the case under each count of the complaint was one for the jury. And also- whether the plaintiff suffered mental pain, and whether that was the proximate cause of defendant’s conduct, were each questions for the determination of the jury.
These principles will suffice for the guidance of another trial, without reviewing in detail the several written charge-s refused to defendant.
Reversed and remanded.
McClellan, C. J., Simpson and Anderson, JJ., concurring.