Parker v. Edwards

• Decision Date: 30 September 1942
• Docket Number: 20,24.
• Citation: 21 S.E.2d 876,222 N.C. 75
• Parties: PARKER v. EDWARDS et al.
• Court: North Carolina Supreme Court

21 S.E.2d 876

222 N.C. 75

PARKER v. EDWARDS et al.

Nos. 20, 24.

Supreme Court of North Carolina

September 30, 1942

This is an action for libel tried before Williams, J., at May Term, 1942, of Beaufort, based upon a telegram delivered by the defendant Lucy F. Edwards to the defendant Western Union Telegraph Company, and sent by said company from Wilson North Carolina, by way of Richmond, Virginia, to Judge Frizzelle at Washington, North Carolina, where he was holding the Superior Court of Beaufort County, and engaged in the trial of the case of Parker v. Parker, wherein the plaintiff was one and the same person as the plaintiff in this case and the defendant was Cheshire J. Parker, her husband, which telegram read:

"Judge Frizzelle Sept 23 1941

"Washington NCar

"I am aunt of C J Parker and feel I can give you some information Phrocine Parker that will help Am in doctors care unable to leave house. Would be in your court C J Parker did not abandon her she drove him out of the home because she had an affair with Bill Midgett of Bath they separated May 1939. On Jan 14 1940 she had an abortion performed on her by a negro doctor she sent for me and thought she was going to die she admitted Bill Midgett was father of the child she drank and spent all of his money and kept him in debt she admitted her mother caused her to bring this suit her mother did the same thing her father had to leave his home. Cheshire requested his father to leave him this property though she could not sell it she told him she intended to leave him after his fathers death three people heard him request his father to give him only life interest Judge Frizzelle, All this is true so help me God

"Lucy F Edwards

"Town Creek School".

The action against the defendant Elizabeth Josephine Parker was dismissed and no appeal taken. The defendant Western Union Telegraph Company appeals from an adverse judgment predicated upon the verdict. The plaintiff Phrocine Latham Parker appeals from that portion of the judgment predicated on the fifth issue addressed to the measure of damage.

H S. Ward, of Washington, for plaintiff Phrocine Latham Parker.

Francis R. Stark, of New York City, and Rodman & Rodman, of Washington, for defendant Western Union Tel. Co.

SCHENCK Justice.

Appeal of defendant Western Union Telegraph Company.

The defendant telegraph company makes the subject of exceptive assignments of error the refusal of the court to sustain its demurrer to the evidence, and to enter a judgment as in case of nonsuit, under C.S. § 567. These assignments are untenable. The telegram in suit contained written words that amounted to a charge of incontinency against the plaintiff, a woman. C.S. § 2432. The telegram was received and delivered by the company to the addressee, Judge Frizzelle. The defendant company defends upon the ground, inter alia, that in so far as it was concerned the telegram was a privileged communication, and that it was free from malice in transmitting the same to the addressee. The allegations to this effect raised the fourth issue submitted to the jury, to which no objection was made, said issue being: "4. Did the defendant, telegraph company, wrongfully and unlawfully transmit and deliver the said message as alleged?"

The court charged the jury in effect that even though the telegram was libelous on its face, the defendant, being a public service corporation, was required by law to transmit it, provided in so doing it acted in a manner free from malice--in other words, that the telegraph company acted under a qualified privilege, the qualification being that the receiving, sending and delivering of the telegram was bona fide in the regular course of its business, and free from ill will or malice, and that the burden of proof of want of good faith or of malice was upon the plaintiff. This was in accord with the authorities.

"A telegraph company is not liable for routine transmission of an...