Southern Bell Tel. & Tel. Co. v. Mayor and Bd. of Aldermen

• Decision Date: 23 January 1935
• Docket Number: No. 7426.,7426.
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. MAYOR AND BOARD OF ALDERMEN OF CITY OF MERIDIAN, MISS.
• Court: U.S. Court of Appeals — Fifth Circuit

74 F.2d 983 (1935)

SOUTHERN BELL TELEPHONE & TELEGRAPH CO. v. MAYOR AND BOARD OF ALDERMEN OF CITY OF MERIDIAN, MISS.

No. 7426.

Circuit Court of Appeals, Fifth Circuit.

January 23, 1935.

Ben F. Cameron, of Meridian, Miss., and George Butler and C. B. Snow, both of Jackson, Miss., for appellant.

Charles H. Westbrook, of Meridian, Miss., for appellees.

Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.

WALKER, Circuit Judge.

A written contract entered into in November, 1929, by and between the Southern Bell Telephone & Telegraph Company, the appellant (which was referred to as the company), and the mayor and board of aldermen of the city of Meridian, Miss., the appellees (referred to as the city), after reciting that the city recognized the company's right under Mississippi statutes to operate its telephone business in the city's streets and other public places, and that the city desires to secure the benefits which enured to it under the previous municipal franchise granted by it to the company, and certain other privileges which have been agreed to by both parties to the contract, provided, among other things, as follows: That in consideration of the premises, and the agreement of the city to pay the company $100 a year, in advance, for a stated period of time, the company would furnish the city, without charge, for use of its officials and employees on the city's business, described telephone service, no charge to be made by the company for moving or relocating such telephone stations, the city to pay the company the latter's regular schedule rates for toll service and for stations in excess of those described; that the company would designate and provide, without further charge, to the city (a) on each pole now or hereafter owned by the company on the public streets and alleys within the corporate limits of the city space for fixtures for, or space for one cross-arm for wires of the police and fire alarm signaling system of the city, and (b), in each conduit now or hereafter owned or used by the company under the city's streets or alleys, one duct for cables of the police and/or fire alarm signaling system of the city, those cross-arms, fixtures, and conduits to be furnished, erected, and maintained at the city's expense, the same to be placed and maintained subject to reasonable regulations of the company and so as not to interfere with the operation or use of the company's service, or endanger its property or employees; the company being obligated to maintain its wires on said poles and in said conduits in such manner as not to interfere with the operation of the city's police and fire alarm signaling system. The contract contained the following provisions:

"11. The City hereby assumes all liability for, and will indemnify and save harmless the Company from and against any and all loss or damage to property of the Company and from and against all damages which may arise or accrue to the Company by reason of or in connection with the construction, maintenance or operation by the City of any of its cables, wires, attachments, or other appurtenances in the conduits or upon the poles of the Company, or by reason or in consequence of any interruption of service over the conductors of the City in said conduits or on said poles.

"12. The Company hereby assumes all liability for and will indemnify and save harmless the City from and against all liability for damages which may arise or accrue to the City from any injury to persons or property caused by the Company or any of its employees in the erection, maintenance and use of its telephone property upon, along, under, over and across the streets, avenues, alleys and public places of the City and/or the neglect of the Company or any of its employees to comply with any ordinance relative to the use of said streets, avenues, alleys and public places. The City agrees to give notice in writing to the Company in all claims and suits against it arising out of any such matters, as soon as may be practicable after being itself notified thereof."

The appellant, the company, brought its action against the appellee, the city, for the recovery of the sum of $5,600, being the aggregate of the amount, $5,000, paid by the company to W. R. Birdsong, and of the amount, $600, of attorney's fee paid by the company in circumstances alleged in its declaration. The declaration, after alleging the execution of the above-mentioned contract and making a copy thereof an exhibit, alleged to the following effect: Said Birdsong was employed by the city as a member of its fire department, and was assigned the duty of looking after the maintenance of the city's fire alarm and police signaling system, including the wires maintained on the company's poles. On or about August 8, 1932, said Birdsong, while engaged in the performance of his duties, climbed a pole which had been erected by the company, on which the city had placed wires belonging to its police and fire alarm signaling system, for the purpose of clearing some trouble which had developed in that system, and while on the pole about 15 feet from the ground, said pole broke off about six inches below the surface of the ground and fell with said Birdsong and on him, with the result that he received serious and permanent personal injuries. The pole fell as a result of decay in it beneath the surface of the ground. Birdsong made claim against the company for damages resulting as above stated, asserting that the company was liable to him therefor. After making full investigation of the facts the company reached the conclusion that it was liable to Birdsong for the casualty and injury, negotiated with Birdsong for a settlement, with the result that Birdsong offered to settle said...