Billings v. Atkinson, 15754

• Decision Date: 09 September 1971
• Docket Number: No. 15754,15754
• Citation: 471 S.W.2d 908
• Parties: Lloyd BILLINGS, Appellant, v. Norman E. ATKINSON et al., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 908

471 S.W.2d 908

Lloyd BILLINGS, Appellant, v. Norman E. ATKINSON et al., Appellees.

No. 15754.

Court of Civil Appeals of Texas Houston (1st Dist.).

Sept. 9, 1971.

Rehearing Denied Oct. 7, 1971.

Ronald G. Byrnes, Houston, Jack M. Finley, Gladewater, for appellant.

James M. Shatto, Alex Guevara, Jr., Sears & Burns, Houston (Will Sears, Houston, of counsel), for appellee, Southwestern Bell Telephone Co.

PEDEN, Justice.

Suit for actual and exemplary damages filed by Lloyd Billings against Norman E. Atkinson and his former employer, Southwestern Bell Telephone Company, for Atkinson's having allegedly installed or repaired a wire tap device on the telephone line at Billings' home. The cause was tried before a jury. At the close of the plaintiff's evidence, the trial judge granted a Telephone Company motion to withdraw the case from the jury and render judgment in its favor, and, after receiving the jury's verdict, he granted the motion of Defendant Atkinson for judgment non obstante verdicto. Billings appealed from the entry of judgment in favor of each defendant.

The appellant's wife testified that no trouble was had on the Billings' home telephone service until June 7, 1967, when Mrs. Billings began to hear a loud, popping noise while talking on her telephone to a neighbor. She could see a Telephone Company man working at a terminal box on the telephone pole behind her home at the time. She could still hear her neighbor's voice, but not very well. She hung up and walked over to the neighbor's house to finish the conversation, walking past the repairman, who said he was sorry about the noise he had made on the line. Later that day the appellant called his wife at their home by telephone and the line was so noisy that they could not complete their conversation. He reported the difficulty to the Telephone Company. The next day another Telephone Co. man came out and put their telephone in working order. A Telephone Co. representative then called Mrs. Billings, told her their line had been tapped and asked if they knew of anyone who would do this.

On June 17, 1967, Mrs. Billings again saw the same man she had first seen on the pole behind her home. She saw the license number on the truck he was driving and furnished it to the Telephone Co., which was able to identify him as Norman E. Atkinson. When Mrs. Billings saw Atkinson on June 17, he again climbed the telephone pole behind her home, looked into the terminal box and rapidly departed.

The record shows that the Telephone Co. found a small device in the terminal box which would have, if properly attached to the Billings' telephone wires, transmitted by frequency modulation radio their conversations. The record does not show that the device ever transmitted any messages.

Appellant's first point of error is that the trial court erred in dismissing the Telephone Co. from the suit because the evidence raised three fact issues: 1) Atkinson was in the course and scope of his employment for the Telephone Co. at the time he attached the device to Billings' telephone, 2) the Telephone Co. ratified the actions of Atkinson by its actions, statements and conduct after the device was discovered and (3) the Telephone Co. breached its contract with Billings to give him a private telephone.

We overrule the first point of error. As to the first item under it, the appellant seeks to rely on the fact that when it is shown that a truck was owned by a defendant and the driver was in the employ of that defendant, then a presumption arises that the driver was acting within the scope of his employment for the defendant when the accident occurred. Here the appellant is not complaining of a tort committed by Atkinson while he was driving the Telephone Co. truck. However, even if we considered that a presumption was raised that he was acting within the scope of his employment for the company by the proof that he was regularly employed by it and was working from its truck when he attempted to install or repair the wire tap we hold that such presumption was rebutted by the evidence in this case and that it was not supported by any other affirmative evidence.

In examining the evidence to determine whether the presumption in question was rebutted, we are not limited to the evidence favorable to the appellant-plaintiff. The burden of presenting evidence to raise the issue remains on him, and there must be some evidence that Atkinson was acting in behalf of the Telephone Co. when he attempted to install or repair the wire tap if submission of the issue is to be supported. Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex.Sup. 1971).

The Telephone Co. admitted that Atkinson was in its employ on June 7, 1967, the day Mrs. Billings saw him on the telephone pole behind her home, that a wire tap device was attached to the private telephone line located behind the Billings' home where it was found on June 7 or 8, 1967 by a Telephone Co. employee other than Atkinson after Mr. Billings reported to the company that his telephone was out of order.

It is noted that it was the appellant who introduced in evidence these answers given by the Telephone Co. to interrogatories: 1) the Telephone Company was not tapping the telephone wire in question at all and did not authorize it, consent to it or even know of its occurrence until after it had occurred and 2) Atkinson was authorized to use the truck in question only in furtherance of duties assigned to him by the company.

There is also uncontroverted evidence in the record that when Atkinson was on the telephone pole behind the Billings' home, he was not within his normal work district, that he was not working out of the work district office which covers the area in question, that he was attempting to violate a Federal penal statute and was violating his employer's orders.

In the second item under appellant's first point of eror he contends that a fact issue was raised as to whether the Telephone Co . ratified Atkinson's actions by its action, statements and conduct after the wire tap was discovered.

The evidence touching on this matter is almost entirey undisputed. When the company investigated the cause of the trouble on the wire and found the wire tap, it notified the appellant and told him it was reporting the matter to the F.B.I. When Mrs. Billing furnished the Telephone Co. a license number, it was then able to identify Atkinson. About ten days later, having investigated the matter, the company discharged Atkinson, a seventeen-year employee, advised Billings that he could obtain the name of the man in question through a proceeding to perpetuate testimony and agreed to an order allowing the appellant to obtain the wire tap device.

' In order to constitute one a wrong-doer by ratification the original act must have been done in his interest, or been intended to further some purpose of his own.' Dillingham v. Anthony, 73 Tex. 47, 11 S.W. 139 (1889); Home Tel. & Electric Co. v. Branton, 7 S.W.2d 627 (Tex.Civ.App.1928, affirmed on other grounds); Sheffield v. Central Freight Lines, Inc., 435 S.W.2d 954 (Tex.Civ.App.1968, no writ).

Further, the appellant has not shown that any officer of the company even made any attempt to ratify Atkinson's acts, that his employer had knowledge of the facts and circumstances at the time, that it acquiesced in such acts or availed itself of any benefits of them.

The third item under the appellant's first point of error, that a fact issue was raised as to whether the Telephone Co. breached its contract to give the appellant a private telephone, is also overruled.

The appellant offered no proof as to the contents of whatever agreement he had with the company to furnish telephone services. He alleged that the company breached its contract by allowing a tap to be placed on his line, but no evidence was offered to show that the company ever agreed that it would completely prevent illegal wire tapping or that under no circumstances would conversations on his telephone lines be overheard or did he show that the company had allowed it to be done. The appellant neither alleged nor proved that the agreement was in writing. The company filed a general denial, so the appellant, as plaintiff, had the burden of proving his allegations.

Further, we believe the appellee cannot contract to furnish a completely private line. For example, as we stated in Carswell v. Southwestern Bell Telephone Co., Tex.Civ.App., 449 S.W.2d 805 (1969, no writ), we are of the view that the Telephone Co. could not validly enter into a contract that could preclude it from investigation, with the consent of a subscriber, upon complant from such other subscriber, and, on probable cause, to determine whether a subscriber was misusing the company's facilities to make harassing calls to the complaining customer . And as stated in Bufalino v. Michigan Bell Telephone Co., 404 F.2d 1023 (6th Cir. 1968, cert. den.), if the appellant's contentions of absolute privacy were upheld, the telephone company could not carry on its business.

The appellant's second point of error is that the trial court erred in dismissing the Telephone Co. from the suit because under the doctrine of nuisance it owed a duty to Billings to protect him from wire tapping by its employee while the...