Carmichael v. Southern Bell Telephone & Telegraph Co.

• Decision Date: 22 May 1913
• Citation: 78 S.E. 507,162 N.C. 333
• Parties: CARMICHAEL v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.
• Court: North Carolina Supreme Court

78 S.E. 507

162 N.C. 333

CARMICHAEL v. SOUTHERN BELL TELEPHONE & TELEGRAPH CO.

Supreme Court of North Carolina

May 22, 1913

Appeal from Superior Court, New Hanover County; Lyon, Judge.

Action by J. W. Carmichael against the Southern Bell Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Where a prior paragraph of the charge directed that the jury could not allow any damages under the third issue unless they were satisfied as to certain facts by the greater weight of the evidence, it was not material that a subsequent instruction used the expression "if you shall find" without adding "by the greater weight of the evidence."--

This action is to recover damages for the wrongful and malicious cutting out of the plaintiff's telephone. The facts are stated in the report of the former appeal in the same action 157 N.C. 21, 72 S.E. 619, 39 L. R. A. (N. S.) 651.

Miss May Carmichael, a witness for plaintiff, testified as follows: "I am a daughter of Mr. J. W. Carmichael, and live on St. James square in the city of Wilmington, and have been living there for some years. My grandfather was Mr. W H. Northrop, my mother's father, and he was in the hospital in 1908. My other grandfather was Dr. James Carmichael, the preacher. We had a telephone in our house in 1908, and had had it there ever since we lived there. It had never been disconnected before. This was what happened: The bell rang and I went to the door, and this young man was standing at the door. He asked, 'Is your father in?' and I said, 'He is not,' and he thrust this bill in the door and said, 'Give this to him when he comes in, and tell him if he don't come down and pay this bill I will cut his phone out.' His manner was abrupt. I told my father. I told him this gentleman had come to the door and he was very rude to me; came in an abrupt way and gave this message, which I repeated to him; had thrust the bill in the door and said if he did not come down and pay the bill, he would cut his phone out." Defendant objected objection overruled, and defendant excepted.

The plaintiff was examined in his own behalf, and testified, among other things, as follows: "Q. As a matter of fact, is the Southern Bell Telephone Company a rich corporation or not? A. They sent me a stockholder's book. Why they sent it to me I don't know; but it showed assets of $869,000,000, which I should say was a very rich corporation." Objection by defendant, objection overruled, and defendant excepted. Cross-examination: "That was the statement of the American Bell and the Southern Bell Telephone Companies together. The consolidation was $869,000,000. That was the statement of the American Telephone & Telegraph Company, which owns the Southern Bell, and it included the Southern Bell. That's a statement of the consolidated, but they showed separately for the minor company." This evidence was admitted on the issue of punitive damages.

The manager of the defendant at Wilmington testified, among other things: "Am in the employ of the defendant company. I would say that defendant is a reasonable sized company. I don't know what is the capital stock. I don't recollect that I ever heard. I have seen a statement and I recollect it was in the millions, but can't recollect exactly what it was. It is a subsidiary company to the American Telephone & Telegraph Company."

The court charged the jury, among other things, as follows:

(1) "And if you find from the evidence and by the greater weight thereof, the burden being on plaintiff to so satisfy you, that the defendant had knowledge, or could have known by the exercise of ordinary care, that the plaintiff's father-in-law was in the hospital and the phone was being used to ascertain his condition and communicate it to the plaintiff's wife, you may consider the mental suffering that the plaintiff sustained by reason of the disconnection of the phone." Defendant excepted.

(2) "If you should find that the defendant cut out the phone through malice to the plaintiff, or if it was cut out recklessly, wantonly, without any regard of the rights of the plaintiff, it would still be within your discretion whether or not to punish the defendant. You can give damages on the third issue if you are satisfied it was done recklessly, wantonly, maliciously; or you cannot if you find it was so done." Defendant excepted.

"Defendant's business is one which is affected with public use, and the company is a public service corporation, with certain well-defined rights and duties, among the latter of which is to give to each and all of its patrons, and to those who desire to become patrons, courteous and prompt service in the transmission of messages; and it is the duty of the defendant to be sure that it is strictly within its rights before it undertakes to deprive one of the public of the right of its service." Defendant excepted.

There was a verdict for the plaintiff, and the defendant appealed from the judgment rendered thereon.

John D. Bellamy & Son, of Wilmington, J. Brutus Clay, and H. E. Palmer, for appellant.

Rountree & Carr and H. M. McClammy, both of Wilmington, for appellee.

ALLEN J.

This action has been tried in accordance with the opinion delivered on the former appeal, and we find no reversible error.

The testimony of the daughter of the plaintiff as to the conduct of the agent of the defendant was competent as a part of the transaction complained of; but, if not, the exception could not avail the defendant, as the objection was to the whole of her testimony, a part of which the defendant does not contend was incompetent. Ricks v. Woodard, 159 N.C. 647, 75 S.E. 735.

The testimony of the plaintiff as to the financial condition of the defendant was admissible on the issue of punitive damages (Tucker v. Winders, 130 N.C. 147, 41 S.E. 8); but in any event its admission would not be reversible error because the facts objected to were brought out without objection of the cross-examination of the same witness, and in the examination of the manager of the defendant.

The first exception to the charge is that there was no evidence that the defendant knew, or could have known by the exercise of ordinary care, that the plaintiff's father-in-law was in the hospital and that the phone was being used to ascertain his condition. We doubt if there was any evidence of the fact, but are of opinion it was not necessary to prove knowledge on the part of the defendant, and that his honor placed a burden on the plaintiff which h...