Brewington Typewriter Co. v. Southwestern Bell Tel. Co.
| Decision Date | 23 May 1968 |
| Docket Number | No. 15295,15295 |
| Parties | BREWINGTON TYPEWRITER COMPANY, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee. . Houston (1st Dist.) |
| Court | Texas Court of Appeals |
Joseph D. Jamail, John Gano, Houston, for appellant.
James M. Shatto, Jon Dee Lawrence, Sears & Burns, Houston, Will Sears, Houston, of counsel, for appellee.
This is a summary judgment case in which the trial court rendered judgment that appellant take nothing in its suit against appellee for damages.
By a first amended original petition filed December 30, 1966, R. D . Brewington, individually and doing business as Brewington Typewriter Company, sued appellee and Dromgoole's Typewriter Shop for actual damages in an unspecified amount allegedly resulting to appellant from an allegedly unauthorized and wrongful listing by appellee in its alphabetically arranged telephone directory for the years commencing in December, 1965 and December, 1966. Appellant also asked for injunctions, both mandatory and prohibitory, and for $200,000.00 exemplary damages.
A non-suit was taken as to Dromgoole.
The listing in the December, 1965 directory listed in bold face type the name 'Brewington Typewriter Co.' and under it listed the Houston, Pasadena and Spring Branch places of business of appellant with the correct telephone number for each. However, under the same bold face listing appellee made the following listing in the manner here shown:
"Rentals Ofc 2482 Bolsover .. JA 2 4323
Sales Ofc 2482 Bolsover .. JA 9 4623
Serv Ofc 2482 Bolsover .. JA 9 9226"
This address was that of Dromgoole and the Jackson numbers reached his place of business on Bolsover. There was nothing to indicate that this address was the place of business of Dromgoole and that these telephone numbers were his instead of a place of business and telephone numbers of appellant.
Appellant had originally filed suit in January, 1966, because of the above listing.
In the December, 1966 alphabetical listing there was a change so that there were two bold face typed listings of 'Brewington Typewriter Co.' Under the first were listed appellant's Houston, Pasadena, and Spring Branch places of business and the correct telephone number for each. Immediately below the listing was the second bold face listing in the name of Brewington Typewriter Co. and under it was listed only 'Rentals Ofc', 'Serv Ofc' and 'Sales Ofc' with the Bolsover address and the Jackson telephone numbers listed in the manner above shown, except that 'Sales Ofc' and 'Serv Ofc' have interchanged positions. There is nothing in the listing to indicate that this was Dromgoole's place of business and his telephone numbers and not appellant's.
Appellee filed an unsworn 'First Amended Answer' containing a general denial, a plea that the matters complained of were proximately caused by 'Brewington Typewriter Company, et al' and in the alternative were proximately caused by a third party or parties. Further, in the alternative, that the damages, if any, sustained by appellant were limited as set forth in 'Section C, Paragraph II, Rules and Regulations Applying to All Customers Contracts * * *' which were on file with the Federal Communications Commission.
The first amended original petition of appellant was sworn to by R . D. Brewington. Among other things alleged was an allegation that the mislistings were without the knowledge or authority of appellant .
Appellee filed its unsworn motion for summary judgment asking for judgment based on the pleadings, depositions, admissions and affidavits on file. The unsworn motion asserts as its first ground for judgment that appellant on February 24, 1961, signed and issued a written authorization to Louis Dromgoole, President of Dromgoole's Typewriter Shop, Inc., authorizing Dromgoole to use the name 'Brewington Typewriter Company' in any manner he saw fit for the conduct of business, which sworn authorization was recorded in the Deed Records of Harris County in Volume 4572, page 427. It is further recited that a further written authorization was given May 22, 1961, which extended such right for a period of ten years, subject to renewal for a period of another ten years, which authorization was recorded in the Deed Records of Harris County in Volume 4572, page 425. It is also alleged that 'Plaintiff' (appellant) had admitted signing said written authorizations in his 'deposition on file herein.' (emphasis ours unless otherwise indicated) It asserted appellee at all times recognized and accepted these authorizations as it was bound to do and that any damages flowed from the act of appellant.
As its second ground for judgment appellee asserts there is neither pleading nor evidence showing actual damage and the grossly exaggerated claim of $200,000.00 exemplary damages has no basis in the record.
The motion also, as a third ground for judgment, asserted the tariff above mentioned limited any liability in an amount not to exceed the amount paid by the customer for service during the period covered by the service. Attached to the motion is an affidavit seeking to establish the pertinent tariff; also an affidavit attests to the authenticity of pertinent pages from the alphabetical directories for the periods of use beginning in January of 1961, 1962, 1963, 1964, 1965, and the pages of the directories for December, 1965 and December, 1966. These show the listings made each year under the name of Brewington Typewriter Company.
In a special sworn answer of appellee, in reply to the amended petition of appellant, K. E. Walker, Houston Division Manager of appellee, swore to the allegations of fact therein contained. We will notice only those allegations we deem material to this appeal.
The special answer asserted the falsity of the allegation that appellee and Dromgoole 'deliberately, wilfully and intentionally, and in heedless disregard of the rights of Plaintiff, and negligently, and in concert' caused the mislisting. Further it asserted that at the time of filing his amended petition appellant knew of the two alleged authorizations given by him to Dromgoole, the specific allegations of which we notice were in appellee's motion for summary judgment. Then the special answer asserts 'by sworn deposition on file in this cause, Plaintiff has admitted signing...
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Hill v. Rich
...at the time of the hearing. The deposition therefore does not fall within the rule stated in Brewington Typewriter Company v. Southwestern Bell Telephone Co., 428 S.W.2d 847, 850 (Tex.Civ.App. Houston 1st 1968, no writ), following decision of the Supreme Court in Richards v. Allen, 402 S.W.......