Indiana Bell Tel. Co., Inc. v. O'Bryan
| Decision Date | 31 July 1980 |
| Docket Number | No. 2-1077A395,2-1077A395 |
| Citation | 408 N.E.2d 178 |
| Parties | INDIANA BELL TELEPHONE COMPANY, INCORPORATED, Appellant (Defendant Below), v. Michael O'BRYAN d/b/a Indianapolis Beauty College, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Bruce N. Cracraft and Shannie Bibie, Indianapolis, for appellant.
Robert A. Garelick and William M. Pope, Maurer, Garelick, Cohen & Frank, Indianapolis, for appellee.
Appellant-defendant Indiana Bell Telephone Company, Inc. (Bell) appeals from a judgment for Michael O'Bryan (O'Bryan) d/b/a Indianapolis Beauty College, claiming the trial court admitted improper evidence, allowed recovery on tort and contract for a single wrong, ignored tariff restrictions on liability, that the judgment was contrary to law and the evidence was insufficient to sustain the decision.
We affirm in part and reverse in part.
The evidence most favorable to the judgment is that:
In July, 1972, O'Bryan opened the Indianapolis Beauty College (College). He contacted Bell to secure listings in the white and yellow pages of the Indianapolis telephone directory.
During his conversations with one of Bell's sales representatives, he was assured that directory assistance was one of the benefits to be gained by the purchase of this service. O'Bryan emphasized that due to the number of out-of-town calls in the beauty college business, this assistance was crucial.
In March, 1973, O'Bryan became aware that there was difficulty in receiving the College's number through directory assistance, although at all times the number was correctly listed in the white and yellow pages directories. When O'Bryan called, he was informed by an operator and her supervisor that no number for the college existed. In late spring, 1973, O'Bryan informed Bell of repeated difficulties in getting his number through directory assistance. He was informed that such a situation was not possible and that he was mistaken.
O'Bryan began taping telephone calls he made weekly to directory assistance, in which he usually was unable to receive his number. Armed with the tape recordings, O'Bryan again called the Bell office and was informed that such taping was illegal, and that he could seek other telephone service if he was dissatisfied with that provided by Bell. O'Bryan never personally took the tapes to the Bell office.
In September and October, 1973, and in 1974, O'Bryan again called to complain regarding lack of directory assistance, and further exchanges took place concerning the continuing failure to provide directory assistance.
In 1975 O'Bryan filed suit for damages based on Bell's failure to provide the College's number through the directory assistance operators during parts of 1973, 1974 and 1975.
At the trial O'Bryan produced testimony from several students and patrons of the College indicating they had been unable to receive a telephone number through directory assistance; an inability which had, on certain occasions, cost the College patronage.
Other testimony showed an average number of prospective beauty college students who contact colleges through directory assistance.
A vocational rehabilitation counselor testified he attempted to call the College in 1974 for the purpose of referring students to the College. Although he indicated a preference for the College because it taught bi-racial hair styling, his inability to get the telephone number through directory assistance caused him to refer ten students elsewhere in 1974. When he became aware the College was still in existence, he referred all his prospective beauty students there.
Finally, a certified public accountant testified concerning the income and expenses that the lost students would have generated, which caused a net loss in profits.
Bell introduced a tariff as evidence of its limited liability.
At the conclusion of the trial, the court made extensive Findings of Fact and the following Conclusions of Law and Judgment:
CONCLUSIONS OF LAW
1. The law is with the Plaintiff and against the Defendant.
2. The Defendant breached its contract with the Plaintiff in that it failed to provide directory assistance service to the Plaintiff during the years, 1973, 1974 and 1975, by both failing to list the Plaintiff in the directory assistance listings and by failure to take reasonable steps to find the Plaintiff's listing so that callers to directory assistance were advised that no such listing existed for the Plaintiff entitling Plaintiff to actual damages as set out in the applicable tariff filed with the Public Service Commission of the State of Indiana.
3. That the acts and conducts of the Defendant established a common law tort committed against the Plaintiff.
4. That the acts and conduct of the Defendant were the result of one continuous wrong which did not completely cease until the end of 1975 thereby tolling the Statute of Limitations applicable to actions founded in tort.
JUDGMENTIT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the Plaintiff shall recover of and from the Defendant on the Claim for negligence the sum of Twenty-five thousand dollars ($25,000.00) and on the claim for breach of contract a sum equally (sic) the maximum amount recoverable on (sic) under the applicable tariff in force from March, 1973 to and including February, 1974.
To aid in our discussion Bell's issues are restated as follows:
I. Was O'Bryan's recovery under the theory of negligence based upon sufficient evidence?
II. Did the trial court err in awarding a judgment upon the contract claim?
III. Did the trial court err in failing to make findings of fact upon certain issues?
IV. Were the damages awarded supported by sufficient evidence?
V. Did the trial court err in admitting over objection certain testimony of O'Bryan's witness, Jacobson?
VI. Did the trial court err in admitting into evidence plaintiff's Exhibits 3 and 5, which were tape recordings of telephone conversations?
ISSUE ONE Was O'Bryan's recovery under the theory of negligence based on sufficient evidence?
PARTIES' CONTENTIONS Bell contends that O'Bryan cannot recover under a tort theory because there was not sufficient evidence on all the necessary elements to prove negligence.
O'Bryan replies that he more than adequately established his case under a tort theory.
CONCLUSION There was sufficient evidence to support a judgment that Bell was negligent in failing to provide directory assistance for O'Bryan.
DUTY Bell owed a duty to O'Bryan to furnish directory assistance and incurred liability by virtue of a breach of that duty. The record discloses that O'Bryan stated specifically his need for his business to be listed in directory assistance, and that Bell orally assured him that the service would be provided.
Even were this not so Ind. Code 8-1-2-4 saddles Bell with a statutory duty to furnish reasonably adequate service and facilities. It is obligated to make a reasonable effort to honor all service commitments, 170 I.A.C. 7-1-22(4); and it is obligated to make reasonable efforts to prevent interruptions in its services and to re-establish the interrupted services as soon as possible. 170 I.A.C. 7-1-28. Directory assistance operators are required to have access to the telephone numbers for which they are responsible for furnishing directory assistance. 170 I.A.C. 7-1-23(5). From these rules of the Public Service Commission, and from its general responsibility as a public utility, a duty to provide adequate directory service is established by law.
BREACH The evidence indicates a repeated pattern of failure to properly provide directory assistance despite O'Bryan's frequent complaints. 1 This may have been either due to Bell's failure to properly instruct and supervise the operators or its failure to properly prepare the operators' directory. Regardless, the same conduct constitutes a negligent breach of the statutory duty. 2
DAMAGES O'Bryan presented evidence of injury actually and proximately caused by the actions of Bell. This evidence showed that the College sustained financial loss by reason of Bell's failure to have the Beauty College's number available through directory assistance to prospective students and to persons who were in a position to refer prospective students to the College. Because negligence was established, O'Bryan was entitled to full recovery of compensatory damages for consequential injuries. Prudential Insurance Co. v. Executive Estates (1977), Ind.App., 369 N.E.2d 1117.
ISSUE TWO Did the trial court err in awarding damages for O'Bryan's claim of breach of contract?
PARTIES' CONTENTIONS Bell's position is that O'Bryan did not present sufficient evidence to establish his claim for breach of contract.
O'Bryan responds that the trial court properly awarded him damages under a theory of contract.
CONCLUSION The trial court erred in awarding O'Bryan damages for breach of contract.
The trial court's award for breach of contract was based on the conclusion that a tariff introduced into evidence by Bell was applicable to the facts before it and supplied the proper measure of damages. This tariff provides:
The liability of the Telephone Company for damages arising out of mistakes, omissions, interruptions, delays, or errors or defects in transmission occurring in the course of furnishing service, channels or other facilities and not caused by the negligence of the customer or of the Telephone Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision, shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay, or error or defect in transmission occurs. (emphasis added.)
The explicit terms of the tariff establish that its purpose is to limit the liability of Bell for occurrences which are "not caused by the...
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