Brillhardt v. Ben Tipp, Inc.

• Decision Date: 26 April 1956
• Docket Number: No. 33296,33296
• Citation: 48 Wn.2d 722,297 P.2d 232
• Court: Washington Supreme Court
• Parties: Grace M. BRILLHARDT, also known as Grace M. DeMars, doing business as DeMarwood Realty, Respondent, v. BEN TIPP, Inc., a corporation, Appellant.

Page 722

48 Wn.2d 722

297 P.2d 232

Grace M. BRILLHARDT, also known as Grace M. DeMars, doing business as DeMarwood Realty, Respondent, v. BEN TIPP, Inc., a corporation, Appellant.

No. 33296.

Supreme Court of Washington, Department 1.

April 26, 1956.

Robbins & Robbins, Seattle, for appellant.

Harold J. Miller, Seattle, for respondent.

OTT, Justice.

In August, 1951, the defendant, Ben Tipp, Inc., began to use a new supply of one thousand twenty sales books, each containing fifty sets of sales slips in triplicate, upon which the telephone number of plaintiff Brillhardt's place of business had been printed by mistake. After the defendant started using the sales books, frequent calls for the defendant's store came to the plaintiff's business office.

Plaintiff discovered the mistake when one of the callers insisted that the number called was on the defendant's sales slip. The plaintiff promptly called the defendant corporation and complained of her annoyance and inconvenience. Shortly thereafter, a representative of defendant's printer contacted plaintiff and asked her to relinquish the number so that the mistake could be rectified. Plaintiff refused. The printer's representative threatened to have the telephone company take the number and, subsequently, a telephone company representative solicited plaintiff to reliquish her number voluntarily. She again refused, and explained at the trial that her reason was the fact that she had been in the real estate business in Seattle for sixteen years, during which time her telephone number had been printed upon her advertising and stationery.

Thereafter, plaintiff contacted the defendant's representatives by telephone several times, informing them of her continued annoyance. December 21, 1953, in writing, she again complained and made demand for payment of her damages. After receipt of the letter by the defendant, the erroneous number allegedly was drilled out of the remaining sales slips. However, approximately twenty-five thousand sales slips had been put into circulation prior thereto. The calls for the defendant's store continued to annoy and harass the plaintiff. April 14, 1954, a cash purchase was made at the defendant's store, and the slip given to the customer contained the plaintiff's telephone number.

Plaintiff commenced this action to recover in damages for her alleged annoyance and inconvenience. The case was tried to the court. Findings of fact, conclusions of law, and a judgment awarding the plaintiff $1,000 damages were entered. The defendant has appealed.

Appellant's first assignment of error is directed to the court's finding No. 3. We are committed to the rule that the trial court' findings of fact will be accepted as the established facts, unless the evidence preponderates against them. McKown v. Davis, 1955, 47 Wash.2d ----, 285 P.2d 1048, and cases cited.

Appellant contends that, by this finding, the court inferred that the appellant was responsible for the requests by the printer and the telephone company that respondent voluntarily relinquish her telephone number. We do not agree. The mere fact that the printer and the telephone company made such requests to the respondent does not give rise to an inference of agency. The action taken by the printer and the telephone company was testified to by the respondent, and was received in evidence without objection. Neither the representative of the printer nor anyone representing the telephone company was called to refute respondent's testimony. Respondent at no time claimed or inferred that these parties were acting as agents of the appellant. She merely related the occurrences to the court as they had developed subsequent to her complaint to the appellant. Although this particular finding of fact was not necessary to respondent's cause of action, it is supported by undisputed testimony. The court did not commit reversible error by including these facts in its findings.

We find no merit in this assignment of error.

Appellant next assigns error to finding of fact No. 4, particularly objecting to that portion which reads as follows:

'* * * That the great number of phone calls which came in very frequently to the plaintiff for the defendant resulted from a dissemination of the said business forms of the defendant to the public and that as a result thereof the plaintiff herein has suffered and will suffer for an indefinite time into the future annoyance and personal discomfort in the sum of $1,000.00.'

The appellant cites Arnold v. Sanstol, 1953, 43 Wash.2d 94, 260 P.2d 327, in support of its contention that, because (1) the respondent produced only circumstantial evidence as to the cause of the telephone calls, and (2) the calls could be explained logically in another manner, the inference from the circumstantial evidence was not sufficient to establish proximate cause. In Arnold v. Sanstol, supra, we said, 43 Wash.2d at page 99, 260 P.2d at page 329:

'When reliance is placed upon the latter type of evidence [circumstantial], there must be reasonable inferences to establish the fact to be proved. No legitimate inference can be drawn that an accident happened in a certain way by simply showing that it might have happened in that way, without further showing that reasonably it could not have happened in any other way. The facts relied upon to establish a theory by circumstantial evidence must be of such a nature and so related to each other that it is the only conclusion that fairly or reasonably can be drawn from them. A verdict cannot be founded on mere theory or speculation. If there is nothing more tangible to proceed upon than two or more conjectural theories, under one or more of which a defendant would be liable, and under one or more of which there would be no liability upon him, a jury will not be permitted to conjecture how the accident occurred. [Citing cases.]'

The appellant's office manager testified that the slips were put into circulation August 31, 1951. The respondent testified as follows:

'Now, referring to the early part or on or about April 1st, 1952, in regard to your telephone, will you tell the Court what took place? * * *

'Q. After that time what happened with regard to your telephone? A. Well, I began getting calls.

'Q. What kind of calls? A. Just phone calls; sometimes they would ask for Ben Tipp; sometimes they would start talking about the merchandise and I would have to listen, and as soon as I could I would tell them about their mistake. * * *

'Q. Now, referring to the time of the year around December, 1952, what was the condition of the situation at that time with regard to your telephone? A. The phone calls were very numerous, and especially after the holidays, people wanting to return their merchandise or make changes.

'Q. How numerous were the telephone calls? A. Sometimes as many as twenty in a day. * * *

'Q. Now, during the course of time that you have been in business, I assume you have had many, many wrong numbers come in to your...