Bussen v. South Cent. Bell Telephone Co.

• Citation: 682 F. Supp. 319
• Decision Date: 18 December 1987
• Docket Number: Civ. A. No. S86-1062(GN).
• Parties: Jeanette BUSSEN, Plaintiff, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

682 F. Supp. 319

Jeanette BUSSEN, Plaintiff, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Defendant.

Civ. A. No. S86-1062(GN).

United States District Court, S.D. Mississippi, S.D.

December 18, 1987.

Jack Parsons, Parsons & Matthews, Wiggins, Miss., for plaintiff.

Henry Laird, Mize, Thompson & Blass, Gulfport, Miss., for defendant.

MEMORANDUM OPINION

DAN M. RUSSELL, JR., District Judge.

This action was removed to this Court from the Circuit Court of Harrison County, Mississippi. The plaintiff, Jeanette Bussen (now Jeanette Bussen-Smith but hereinafter "Jeanette Bussen"), initially sued Pat Carrol (now Pat Carrol Bussen but hereinafter "Pat Carrol") and South Central Bell Telephone Company (hereinafter "South Central Bell"). The plaintiff and Pat Carrol finalized their actions against each other by executing mutual Covenants Not to Sue on or about August 19, 1986. Pat Carrol was thereafter dismissed as a party defendant, thus creating diversity between the plaintiff and defendant South Central Bell.

This action was tried before this Court, without a jury, on November 2 and 3, 1987. The Court, after having considered the pleadings, the testimony of the witnesses presented, arguments of the parties, and the applicable law, now enters its Findings of Facts and Conclusions of Law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure and 28 U.S.C. Sections 1332 and 1441.

FINDINGS OF FACTS

1. The testimony of Pat Carrol represented that she had been a service representative for approximately fifteen (15) years prior to her employment, in August of 1982, by South Central Bell for whom she became a service representative in its Gulfport office.

2. Pat Carrol was periodically reviewed on South Central Bell's policy regarding proprietary information. This information was complied in a document known as the Personal Responsibility and Proprietary Information Booklet. Pat Carrol was last reviewed on this document in April of 1982. The booklet primarily provided that no employee of South Central Bell was to disclose or improperly use any information learned through his or her employment for personal gain in that such information belonged to South Central Bell and was confidential.

3. In July of 1982 Jeanette Bussen and Don Bussen separated. In August of 1982, Pat Carrol and Don Bussen met and in late October, or early November, they began living together. On November 2, 1982, the plaintiff and Don Bussen's divorce became final.

4. On January 13, 1983, Don Bussen made two telephone calls to the Pascagoula residence of one Gordon Smith while the plaintiff was at said residence. The number called was 762-3794 which was a listed number. The calls were made from a listing at Pat Carroll's residence, telephone number 832-5603. Don Bussen used this listing belonging to Pat Carrol while he was living at her residence. The plaintiff testified the first call from Don Bussen came at approximately 9:00 p.m. It is undisputed that Don Bussen received Gordon Smith's telephone number from his son, Victor.

5. In February of 1983, various calls were made between the plaintiff, Pat Carrol and Don Bussen. On February 9, 1983, Pat Carrol called the plaintiff to warn her that Don Bussen had been drinking heavily and might be coming to Lucedale. This call is not among those of which the plaintiff complains were abusive or harassing. This call was made by Pat Carrol from a South Central Bell number other than her own and charged to a friend's credit card.

6. In mid-February Don Bussen moved from Pat Carrol's residence to one of his own. On February 21, 1983, Don Bussen received telephone number 762-6464 at his new apartment in Pascagoula.

7. On March 1, 1983, the plaintiff requested that her telephone number be changed. The telephone number to be changed was 947-8351 which was a private listing¹ that she and Don Bussen had previously shared for twelve years at their residence. Said number was of course known to Don Bussen.

8. On March 4, 1983, the plaintiff's number was changed from 947-8351 to 947-7353. This new number was also a private number. The plaintiff received a telephone call from Don Bussen at this new number at approximately 6:45 or 7:00 p.m. on the evening of March 4, 1983. Pat Carrol testified without objection that Don Bussen got the new number from his son, Victor.

9. This call prompted the plaintiff to call Don Roberts of South Central Bell and to complain that she had received harassing calls. This call to Don Roberts resulted in South Central Bell's Security Department being notified of the problem on March 8, 1983. The complaint was given to Jim Milner who began an immediate investigation. Jim Milner attempted to contact the plaintiff but she was out of town. In the meantime, the plaintiff had requested that the 947-7353 number be changed and on March 10, 1983, her "7353" number was changed to 947-8078.

10. The plaintiff was contacted by Jim Milner on March 11, 1983, when she returned to her home. Milner requested that plaintiff's number be changed once more so that he could monitor the use on this new number. Therefore, on March 11, 1983, the plaintiff's number was changed from 947-8078 to 947-8360.

11. On May 23, 1983, Pat Carrol was suspended for thirty (30) days by South Central Bell.

12. On July 30, 1983, Pat Carrol and Don Bussen were married.

13. The plaintiff testified that since her separation in July of 1982 from Don Bussen they had not lived together. She also recognized that Don Bussen was aware of the 947-8351 number because this was the private number shared during their marriage. The plaintiff also testified that she and Don Bussen were not in communication with each other and they were living their own lives; however, the testimony did reveal that on March 26, 1983, the plaintiff and her son attended a concert with Don Bussen. The plaintiff stated that she received telephone calls from her ex-husband, Don Bussen, through the end of February and that it became so bad she could not stand it. It was at this time that the plaintiff requested that her number be changed.

14. The plaintiff stated she gave the new number she received on March 4, 1983, to Sears and to her mother. She denied giving the new number of March 4, 1983, to Don Bussen.

15. Pat Carrol testified that the plaintiff's son, Victor, also had the new number on March 4, 1983.

16. The plaintiff testified that on and after March 5, she received phone calls daily, at all hours, but the people did not always identify themselves. The plaintiff stated that she could identify most of the calls as being from Pat Carrol from previous calls. The plaintiff stated Pat Carrol would state basically the same message each time. These type calls continued for approximately six (6) months from January through July, 1983.² The plaintiff stated these calls made a mess of her personal life and frustrated her ability to concentrate on her business.

17. The plaintiff testified that she was having problems with her business and that her contract with Sears, which was renewed annually, was put into jeopardy. These problems as well as the volume of business, became overwhelming for the plaintiff and resulted in her decision to sell her business.

18. The plaintiff also testified about problems with her emotional state and her nerves during the time she was receiving the calls which caused her to see a doctor. She testified that she developed shingles.

19. Under cross-examination, and using notes she had herself prepared, the plaintiff characterized the number of calls she received at her personal number "daily" from Pat Carrol, after March 5, 1983, as approximately twenty-five (25), or between fifteen (15) and twenty (20). She testified that calls she received at work from Pat Carrol she was unable to record.

20. A copy of answers to interrogatories propounded to the plaintiff by the defendant South Central Bell signed under oath and dated June 5, 1984, was then introduced at trial. Interrogatory No. 2 asked:

Question: Describe with specificity each and every telephone call you allege Pat Carrol to have made which harassed and threatened you and/or your friends, giving dates and times of the telephone calls.

Answer: On February 9, 1983 at 6:00 a.m. and 8:00 a.m., Pat Carrol called; March 1, 1983 — hang up calls; March 3, 1983 at 3:30 a.m., Pat Carrol called; March 3, 1983 at 4:00 a.m., Pat Carrol called; March 5, 1983 in the morning, Pat Carrol called; March 17, 1983 at night—hang up call; March 21, 1983 at night—hang up call; March 26, 1983, three hang up calls; May 4, 1983 in the morning—hang up calls; May 14, 1983 at midnight—hang up call; June 1, 1983 — three hang up calls; June 4, 1983 at 9:30 a.m. — hang up call; June 5, 1983 between 7:00 and 8:00 p.m.—hang up — three hang up calls; July 7, 1983 at 2:55 p.m.—hang up call; and July 10, 1983 at midnight — hang up call.

21. Following the introduction of Interrogatory No. 2, the plaintiff testified that now she could identify subsequent calls she received as being from Pat Carrol. These included, but were not limited to, the following:

On March 5 at 8:30 a.m.; March 17, in the evening; March 21 in the evening; and May 4 and May 14.

She stated she could identify the caller as being Pat Carrol because she recognized the voice of Pat Carrol and the names were the same as those Pat Carrol had used on prior calls.

22. The defendant South Central Bell presented a statement to the plaintiff which she signed, dated April 20, 1983, which read in pertinent part:

Since I have had my telephone number changed to 947-8360, I have not received any calls that I can say came from my ex-husband, Don Bussen, or from Pat Carroll. I have received several hang up calls and wrong number calls, but I don't know who the caller was.

A copy of this statement was admitted into evidence. The plaintiff stated in response to this impeachment or rebuttal statement that when she made this statement she was disturbed...