Allstates Transworld Vanlines, Inc. v. Southwestern Bell Telephone Co.

• Decision Date: 26 November 1996
• Docket Number: No. 69010,69010
• Citation: 937 S.W.2d 314
• Parties: ALLSTATES TRANSWORLD VANLINES, INC., Plaintiff/Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 314

937 S.W.2d 314

ALLSTATES TRANSWORLD VANLINES, INC., Plaintiff/Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Defendant/Respondent.

No. 69010.

Missouri Court of Appeals,

Eastern District,

Division Two.

Nov. 26, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 8, 1997.

Application to Transfer Denied

Feb. 25, 1997.

Morris, Seltzer & Levy, Gary J. Morris, The Stolar Partnership, Charles Alan Seigel, Harold L. Satz, Jay L. Levitch, St. Louis, for Appellant.

Southwestern Bell Telephone, Thad Hollie, Jr., Vanessa K.R. Keith, Thompson Coburn, Dan H. Ball, James W. Erwin, St. Louis, for Respondent.

PUDLOWSKI, Judge.

Appellant, Allstates Transworld Vanlines, Inc. (Allstates) sued Respondent, Southwestern Bell Telephone Company (SWBT), for damages resulting from the interruption of its telephone service. As a result of a delinquent account, SWBT suspended Allstates' telephone service at various intervals from September 1982 to February 1983. Allstates' theory of liability, as enumerated in its petition, was grounded in the contention that SWBT had violated tariffs approved by the Public Service Commission (Commission). The jury found SWBT liable for wrongful termination of the Allstates' telephone service and awarded $4,000,000 in actual damages and $8,000,000 in punitive damages. The trial court denied SWBT's motion for judgment notwithstanding the verdict (JNOV motion). The trial court then granted SWBT's motion for a new trial on grounds of juror misconduct. Allstates appeals contending that the trial court erred in granting the motion for a new trial for juror misconduct. SWBT, in its brief, included several additional issues for appeal, and Allstates addressed them in its reply brief.

We hold that the trial court erred in denying SWBT's JNOV motion as Allstates did not present a submissible case because the tariff allowed SWBT to disconnect service for nonpayment of Yellow Page advertising bills. We set aside the trial court order granting the motion for a new trial. We reverse and remand to the trial court to enter an order granting SWBT's JNOV motion. Consequently, all other issues on appeal are moot and will not be addressed.

In point one of its response brief, SWBT claims that the trial court erred in denying its JNOV motion. A JNOV motion "challenges the submissibility of the plaintiff's case." White v. Union Pacific R. Co. 871 S.W.2d 50, 52 (Mo.App. E.D.1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86, 130 L.Ed.2d 38 (1994). To make a submissible case, substantial evidence is required for every fact essential to liability. Allison v. Sverdrup & Parcel & Assoc., Inc., 738 S.W.2d 440, 455 (Mo.App.1987).

In determining whether Allstates made a submissible case, we must view the evidence in the light most favorable to it. We presume its evidence to be true and give it the benefit of all reasonable inferences to be drawn from it. Nettie's Flower Garden v. SIS Inc., 869 S.W.2d 226, 231 (Mo.App. E.D.1993).

Allstates' president and principal owner, Timothy Person, Sr., joined his father's local moving and storage business in 1953. In 1963, Timothy Person purchased a company called Allstates Van Lines and operated this company from St. Louis. In 1977, he formed Allstates Transworld Van Lines, Inc., and in February 1980, the Interstate Commerce Commission granted Allstates a national permit with authority to start operating on June 11, 1980.

In 1981, Allstates was approved by the Military Traffic Management Command (MTMC) to serve as a carrier of household goods for military personnel. MTMC is responsible for moving the household goods of military personnel for all of the service branches when they change stations. As a result of the disconnection of service, as hereinafter discussed, the MTMC ceased any business contracts with Allstates.

In 1982, Allstates was experiencing cash flow problems. As a result, Mr. Person contacted Herman Thompson, a personal friend and lawyer, and asked him to review Allstates' corporate financial ledgers. After review, Mr. Thompson advised Mr. Person, among other things, that Allstates could reduce its monthly expenditures by delaying payment for its Yellow Page advertising. He advised further that Allstates did not have to pay for the Yellow Page advertising in order to maintain its telephone services and that SWBT could not sever Allstates' telephone service for non-payment of those charges.

Allstates' telephone service was interrupted at various intervals from late September 1982 until March 1983. At all times of interruption Allstates had a delinquency in its Yellow Page advertising account.

In point one of its response brief, SWBT challenges the submissibility of Allstates' cause of action. This contention turns on an interpretation of a tariff approved by the Commission, which regulates SWBT. During the pertinent times in 1982 and 1983, the Commission regulated both telephone service and Yellow Page advertising. Videon Corp. v. Burton, 369 S.W.2d 264 (Mo.App.1963). ¹ A tariff, when approved by the Commission, becomes Missouri law. Carter's Custom Tile v. Southwestern Bell Telephone Co., 834 S.W.2d 892, 893 (Mo.App.1992).

In defending the submissibility of its case, Allstates claims that the theory of liability was based on a common law cause of action as presented in Haynam v. Laclede Electric Cooperative, Inc., 827 S.W.2d 200, (Mo. banc 1992). It is clear from Allstates' petition, however, that its theory of liability was based on a violation of the tariffs approved by the Commission. In its petition, Allstates claimed that "Pursuant to tariffs approved by the public service commission, defendant could not disconnect plaintiff's telephone service if the line and long distance charges have been paid. Defendant, without just cause or excuse, disconnected plaintiff's telephone service for approximately 45 days." Allstates' reliance on Haynam is misplaced. Haynam presents a factual situation much different than the instant case. In Haynam, the Supreme Court held that a plaintiff seeking recovery in tort for wrongful termination of electrical service is required to show that defendant acted negligently in its failure to supply electrical service. Id. at 204. While electric service utilities are also regulated by the Commission, the defendant electric utility did not have a tariff providing for limitations on liability for termination of service. During the periodical cessation of Allstates' telephone service, SWBT had an approved tariff filed with the Commission which, at that time, regulated both line service and Yellow Page advertising. Accordingly, we will analyze the submissibility of Allstates' claim according to the applicable tariff and whether or not Allstates presented substantial evidence to support a violation of the tariff by SWBT.

As we have previously stated, a tariff that has been approved by the Commission becomes Missouri law. Carter's Custom Tile, 834 S.W.2d at 893. As a result, the tariffs have the same force and effect as a statute directly prescribed from the legislature. Id. Therefore, we analyze a tariff as we do a statute. If a statute, or in this case, a tariff, is clear and unambiguous, we cannot give it another meaning. Northland Ins. Co. v. Bess, 869 S.W.2d 157, 159 (Mo.App. E.D.1993). In determining whether the language of a tariff is clear and unambiguous, the standard is whether the tariff's terms are plain and clear to one of ordinary intelligence. Wolff Shoe Co. v. Director of Revenue, 762 S.W.2d 29, 31[3-5] (Mo. banc 1988).

In 1982, the applicable tariff, referring to business service, provided:

The customer is responsible for payment of all charges for services and equipment furnished the customer, including charges for services originated or charges accepted at the customer's station and including any charges transferred to the customer's account pursuant to Paragraph 25.4.2,B where the customer has executed a Contract of Guaranty for an applicant or present customer.

Upon nonpayment of any sum due the Telephone Company, the Telephone Company may, after five days' written notice has been furnished the customer, without incurring any liability, forthwith discontinue the furnishing of said service. If, in the judgment of the Telephone Company, unusual risk of financial loss exists, service may be suspended after forty-eight hours' written notice has been furnished to the customer. (emphasis added).

P.S.C.--Mo. No. 22, General Exchange Tariff ...