Southwestern Tel. Telephone Co. v. Riggs , 216 S.W. 403 ( 1919 )

The holding of the majority of the court that appellee, upon the facts of this case, is entitled to recover damages from appellant for "annoyance and inconvenience" caused by reason of his telephone having been wrongfully "temporarily disconnected" by appellant, is in my opinion an unreasonable extension of the scope of the law of damages, and is without support in the authorities.

All of the material evidence in the case is correctly copied in the opinion of the majority. The facts established by this evidence may be briefly stated as follows:

Appellant, thinking that appellee had not paid his residence phone rent for the previous month, disconnected his phone on the 5th day of August, 1917. A bill for this rent and also for the rent for the month of August was sent to appellee on August 1st. Appellee had in fact paid the rent for the phone for two months in advance when he had it installed in his residence in July. The clerk or employé of appellant who received the money from appellee and issued the receipt therefor placed the duplicate or memoranda of the receipt on, a file book in the office. Appellee's phone was No. 1928 and the receipt given him was for that number. In placing the duplicate or memorandum on the file, the hook pierced the center of the figure 8, and when the bookkeeper entered the item in his book he mistook the mutilated 8 for a 3 and credited the amount to phone No. 1923.

Appellee did not discover that his telephone was disconnected until the morning of the 8th of August, when, desiring to talk with his wife from his place of business, he called up the central telephone office and asked to be connected with his residence phone, and was informed that the phone was disconnected because the books of the company showed that he had not paid rent due for the phone. A detailed statement of the dispute that then occurred between appellee and the employé of appellant is set out in full in the opinion of the majority and will not be repeated. After this dispute had ended, the telephone company made an investigation of its records, discovered the mistake, and reconnected the telephone. The exact length of time the phone remained disconnected after appellee informed the company that he had paid his bill is not shown, but the evidence warrants the conclusion that it was less than one hour.

Appellee, having paid his rent, was entitled under his contract to the use of the phone, and appellant should be held liable for any actual damage he may have sustained by being deprived of its use, and the fact that the wrongful act of appellant in disconnecting appellee's phone was due to an honest mistake that might easily occur in the keeping and rendition of accounts in any large business cannot affect this liability. But in the absence of malice, damages for breach of contract are only recoverable in law as compensation for actual or substantial loss or injury.

The $250 damages awarded appellee by the verdict and judgment in this case was for "annoyance and inconvenience" suffered by him "by reason of his telephone having been disconnected." There is nothing in the evidence tending to show that appellee sustained any loss or damage by reason of his failure to talk with his wife. The petition alleges that he wanted to tell his wife that he was going out of the city for the day, and that because of his inability to talk with her over the phone, he abandoned his trip. We are not informed as to the importance or purpose of his proposed trip, and the annoyance and inconvenience caused him by its abandonment must have been of no consequence because the matter is not referred to in his testimony.

Appellee does not claim in his testimony that he was annoyed or inconvenienced by not being able to talk with his wife over the telephone during the hour or less that the phone remained disconnected after he asked for the connection. He says he was made very angry by the treatment he received from the telephone employés and their refusal to accept his statement that the rent had been paid and reconnect the phone without requiring him to show his receipt; that, "he was running around like a chicken with his head cut off, and used language that he did not like to use before those ladies." There was nothing insulting in the language used by any of the employés in discussing the matter with appellee. He says that, when he told the cashier that if he was not given the connection in three minutes there would be something doing at the courthouse, the cashier laughed at him. The only bad temper that seems to have been shown in the entire controversy was displayed by appellee. Any self-respecting man dislikes to have his statements of fact questioned, but it would hardly be contended that the feelings of resentment which might reasonably result therefrom is an injury for which damages are recoverable, and no such element of damage was submitted to the jury in this case, There was no evidence of malice on the part of appellant's employés, nor of such gross negligence as would amount to a willful wrong, and the issue of exemplary damages is not in the case.

Such being the evidence, it is not surprising that the majority of the court are "laboring under some doubt of the correctness of their conclusion" that appellee is entitled to recover of appellant $250 damages for having his phone disconnected for not exceeding one hour. While the phone was disconnected for three days, appellee did not know that it was disconnected until he attempted to talk with his wife on the morning of August 8th, and there can be no claim that he suffered any annoyance or inconvenience because of the phone being disconnected prior to the time that he attempted to talk with his wife. He could not suffer annoyance or inconvenience from being unable to use the phone, when he had no occasion to use it and did not know that it was disconnected. He claimed a remission of the rent of the phone for three days, and this sum appellant admitted was due him and paid the amount into court. This, in my opinion, is all that appellee is entitled to recover.

The case of Telephone Co. v. Hobart, 89 Miss. 252, 42 So. 349, 119 Am. St. Rep. 702, cited in the opinion of the majority, falls far short of sustaining the conclusion reached in that opinion. In that case the plaintiff Hobart was wrongfully deprived by the defendant for three or four months of the use of the telephone which it had contracted to furnish him. The evidence showed that Hobart suffered much annoyance and inconvenience by being deprived of the use of the phone. The evidence showing the annoyance and inconvenience suffered by him, as set out in the opinion, is as follows:

"Mr. Hobart claims to have been damaged in many ways by the removal of the telephone, but that it is difficult to enumerate the exact amount, and the ways in which he was damaged; that he lived out in the country, and that it was an almost indispensable adjunct to his household, and yet difficult to enumerate in dollars and cents; that when he was in town and wanted anything he could telephone; when he wanted to send things home, he was in the habit of putting them on the car and telephoning some one at the house to meet the car and get the things; after the telephone was cut out he could not do this, but had to send a boy; that he suffered inconvenience and annoyance in ways too numerous to name, and too difficult to put in dollars and cents and that the telephone was a necessity to him. He used the telephone on his place in Louisiana, and he used it as a matter of convenience to talk home. While he was without the telephone, he was taken sick, and suffered great annoyance and inconvenience in not having a telephone in his house; that, to his recollection, he spent $25 to $30 for messengers to send things home; that, when he had long-distance calls several times, he would have to go out at night to his neighbor's house to talk, and, when his family was sick, he was put to much inconvenience, and deprived of the protection which the telephone gave him at his house."

Upon these facts the Supreme Court of Mississippi held that a verdict for the plaintiff for $150 was not so excessive as to authorize the court to set it aside.

I have no doubt that a telephone company that wrongfully denies a subscriber the use of a phone to which he is entitled can be made to respond in damages for the annoyance and inconvenience suffered by the subscriber by being deprived of use of the phone, but I do not think the evidence in this case shows that appellee was caused annoyance or inconvenience by being unable to talk with his wife on the occasion of which he testified. As before stated, he does not say in his testimony that he was inconvenienced or annoyed by not being able to talk with his wife. His only complaint is that he felt insulted and humiliated by the refusal of the telephone company to reconnect his phone when he informed it that the rent was paid.

I think the judgment of the court below should be reformed and affirmed, allowing appellee to recover only the rents paid by him for the phone for the three days it was disconnected.