Carmichael v. Southern Bell Telephone & Telegraph Co. , 162 N.C. 333 ( 1913 )

Alleit, J.

This action lias been tried in accordance witb tbe opinion delivered on'tbe former appeal, and we find no reversible error.

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

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

Tbe first exception to tbe charge is that there was no evidence that tbe defendant knew, or could have known by tbe exercise of ordinary care, that tbe plaintiff’s father-in-law was in tbe hospital, and that tbe phone was being used to ascertain bis condition.

We doubt if there was any evidence of tbe fact, but are of opinion it was not necessary to prove knowledge on tbe part of tbe defendant,- and that bis Honor placed a burden on tbe plaintiff which be did not have to assume.

The verdict of tbe jury, read in tbe light of tbe charge, establishes the facts that tbe plaintiff bad paid bis phone charges and had tbe receipt of tbe defendant therefor, and that tbe defendant maliciously cut out tbe phone. If so, tbe defendant was guilty of a tort, and is liable for all damages flowing naturally and proximately from tbe wrongful act, although not foreseen.

In Johnson v. R. R., 140 N. C., 576, tbe Court quotes witb approval from Sutherland and Hale on Damages as follows: “Mr. Sutherland, after discussing many decided cases, says: 'The correct doctrine, as we conceive, is that if tbe act or neglect complained' of was wrongful, and tbe injury sustained re-suited in tbe.natural order of cause and effect, tbe person injured thereby is entitled to recover. There need not be in tbe mind of tbe individual whose act or omission has wrought tbe injury tbe least contemplation of tbe probable consequences of bis conduct; be is responsible therefor because tbe result proximately follows bis wrongful act or nonaction.’ 1 Damages, 16. ‘A tort feasor is liable for all injuries resulting directly from bis wrongful act, whether they cojild or could not have been seen by him. . . . Tbe real question in these cases is, Did tbe wrongful conduct produce tbe injury complained of? and not whether tbe party committing tbe act could have anticipated tbe result.’ Hale Damages, 36; 8 Am. and Eng. Enc. (2 Ed.), 265.”

Tbe Criticism of tbe second excerpt from tbe charge is that bis Honor used tbe expression, “If you shall find,” without adding, “by tbe greater weight of tbe evidence”; but if this should be held to be erroneous, standing alone, an examination of tbe whole charge shows that immediately before tbe part complained of, bis Honor told tbe jury, “You cannot allow any damages under tbe third issue unless you find from tbe evidence and by its greater weight, tbe burden being on tbe plaintiff to so satisfy you, that tbe phone was cut out through malice or was cut out wantonly or recklessly.”

Tbe learned counsel for tbe defendant does not contend, in bis carefully prepared brief, that there was no evidence to support a finding for tbe plaintiff on tbe issue of punitive damages, and it is, therefore, unnecessary to discuss tbe evidence bearing upon tbe issue,' which in our opinion was sufficient to justify submitting it to tbe jury.

Tbe last exception is to a part of tbe charge defining tbe duty of tbe defendant to its patrons, as follows: “Defendant’s business is one which is affected with a public use, and tbe company is a public-service corporation, with certain well defined rights and duties, among tbe latter of which is to give to each and all of its partons, and to those who desirp to become patrons, courteous and prompt service in tbe transmission of messages; and it is tbe duty of tbe defendant to be sure that it is strictly within its rights before it undertakes to deprive one of tbe public of tbe rights of its service.”

This rule imposes no greater burden on tbe defendant than is imposed on all who are under legal or contractual obligations to others, as all must be sure they are strictly within their rights before they refuse to perform a duty arising from contract or imposed by law, or they will be liable in damages for failure to do so. The language of David Crockett, “Be sure you are right, and then go ahead,” has become axiomatic.

We find

No error.