Citizens Tel. Co. v. Anderson

• Decision Date: 08 June 1956
• Citation: 291 S.W.2d 527
• Parties: The CITIZENS TELEPHONE COMPANY, Inc., Appellant, v. Susie Daniel ANDERSON, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 527

291 S.W.2d 527

The CITIZENS TELEPHONE COMPANY, Inc., Appellant, v. Susie Daniel ANDERSON, Appellee.

Court of Appeals of Kentucky.

June 8, 1956.

Stephens L. Blakely, Blakely, Moore & Blakely, John J. O'Hara, Covington, for appellant.

Davies & Hirschfeld, Newport, for appellee.

SIMS, Judge.

Plaintiff below, Susie Daniel Anderson, recovered judgment against The Citizens Telephone Company for $700 damages alleged to have been caused her business by the company's wrongful removal of her telephone, and $300 for attorney's fee she averred she paid in another action wherein she sought to compel the company to restore her telephone service. The company has moved for an appeal and argues the court erred in failing: 1. To enter a summary judgment for it; 2. to direct a verdict in its favor; 3. to exclude inadmissible evidence as to damages; 4. to properly instruct the jury, and to enter judgment for it non obstante veredicto.

The pertinent facts appear in the former appeal reported in Ky., 269 S.W.2d 283, 284, which was an action wherein appellee sought to have the trial court compel the company to restore her telephone service. That opinion after reciting appellee's telephone service was wrongfully discontinued, contains this statement: 'It is admitted, however, that at the time the suit was filed she had the service of a telephone listed in her husband's name, under an application filled out and submitted by her. There is no intimation in the record that Mrs. Anderson needs or desires an additional telephone. * * * When these facts were developed we think the court should have dismissed the petition.'

While the first action to have the telephone service restored was pending, appellee instituted the present action wherein she sought to recover $5,000 damages to her business as a seamstress for the unlawful removal of her telephone, and $300 damages for attorney's fee expended in the first suit. The company filed a plea to abate the second action until the final determination of the first one, which plea was sustained. Upon the filing of the mandate of this Court on the first appeal, the trial court dismissed the petition in the first suit; thereupon, the company filed a plea of res adjudicata in the present action and moved for summary judgment, which motion was overruled. The present action was tried upon the record made in the first case, except appellee introduced proof wherein she attempted to establish damages to her business.

Without discussing the question of whether or not appellee might in proper circumstances recover the $300 attorney's fee she paid in the first action, it will suffice to say we in effect held the first suit presented a moot question, since her telephone service had been restored before that action was tried. Therefore, it follows appellee cannot recover the $300 fee paid her attorney.

The real question presented on this appeal is whether the company's plea of res adjudicata bars the present one. The general rule is well stated in Harris v. Harris, 296 Ky. 41, 176 S.W.2d 98, 99: 'The plea of res adjudicata applies not only to the point upon which the Court was required to pronounce judgment, but likewise extends to every point which properly belonged to the subject of litigation in the first suit, and which the parties might have brought forward at that time, even though by failure to...