Josephson v. Mountain Bell, 14946

• Decision Date: 24 February 1978
• Docket Number: No. 14946,14946
• Citation: 576 P.2d 850
• Parties: John C. JOSEPHSON and Geraldine C. Josephson, his wife, Plaintiffs and Appellants, v. MOUNTAIN BELL, a public utility, and John Does, 1 through 5, Defendants and Respondents.
• Court: Utah Supreme Court

Page 850

576 P.2d 850

24 P.U.R.4th 65

John C. JOSEPHSON and Geraldine C. Josephson, his wife Plaintiffs and Appellants, v. MOUNTAIN BELL, a public utility, and John Does, 1 through 5 Defendants and Respondents.

No. 14946.

Supreme Court of Utah.

Feb. 24, 1978.

Robert C. Cummings, Gordon A. Madsen, Salt Lake City, for plaintiffs and appellants.

Parsons, Behle & Latimer, Gordon L. Roberts and Stephen K. Schroeder, Salt Lake City, for defendants and respondents.

CROCKETT, Justice:

Plaintiffs, John and Geraldine Josephson, sued Mountain Bell for compensatory and punitive damages, claiming that the telephone at their residence was wrongfully disconnected because of an unpaid phone bill for Mr. Josephson's business. Upon a trial to a jury the court submitted the case under instructions that the plaintiff had the burden of proof on these two basic issues:

(1) Did the defendant wrongfully terminate the telephone service to the home of the plaintiffs? and (2) if so, what injuries, if any, did plaintiffs suffer thereby and what damages, if any, are plaintiffs entitled to recover?

The instructions also included:

If you find that plaintiffs have failed to prove either one of these factual issues . . . you should return a verdict in favor of the defendant of no cause of action.

The jury returned a general verdict of no cause of action.

On appeal the plaintiffs contend that the evidence compels findings in their favor on the above-stated issues. Whereas, defendant argues that the verdict was justified because the jury could have refused to believe either (a) that the telephone was wrongfully disconnected, and/or (b) that the plaintiffs suffered any damage.

Plaintiff John Josephson was the owner of a travel service which he operated under a dba, Josephson's Travel Service, and was also involved with Western Office Supply and Travel Institute School, a private, nonprofit corporation of which he was an officer. The offices for all business were maintained at 375 West 200 South in Salt Lake City where each business had its own telephone. There was a history of delinquencies in paying for these business phones, the details of which are not material here except that the Josephson Travel Service phone had been finally disconnected in June, 1975, leaving an unpaid balance of $418. On September 2, 1975, Mr. Josephson had moved his other two businesses to 714 Ninth Avenue, two doors away from his residence, where phone service was available to him and his family. Although the charges on the plaintiff's residence phone were paid, in late August 1975, defendants advised Josephson that if the delinquency on the business phone was not paid, the residence phone would be disconnected. Carrying out that threat, the defendant company disconnected the home phone on September 3, 1975, which precipitated this lawsuit.

The question is thus squarely presented: where the customer had paid all current charges on his home phone, was the defendant within its rights to disconnect that phone because charges were not paid on the separate business phone.

Defendant phone company bases its defense in part upon tariffs filed with the Public Service Commission paragraph L-4 of which recites in substance: if a subscriber does not pay charges on one telephone account, the company may bill it to any other account of the subscriber.

Paragraph Q-2 states:

The Company may, after notification of intent to the subscriber, temporarily suspend or terminate the service for nonpayment of any sum due the Company.

With respect to those tariffs, these observations are pertinent. They are filed by the utilities themselves and thus mainly serve their own interests. They should be construed strictly against the utility; and the utility should be required to strictly comply with them; and they must be fair, reasonable and lawful. ¹ Second, in this instance it is not shown, and the defendant does not claim, that it ever so billed the business phone charges against the plaintiff's residence phone. It did, however, give the plaintiff notice of intent to disconnect the home phone a few days prior to doing so.

The position of the telephone company may well be quite tenable in the operation of any ordinary business. But that the company, as a public utility, has a higher obligation to render service to the public than does the ordinary business. This derives from the fact that it is given the privilege of having a monopoly in rendering a necessary public service. The reasons for this need no discussion here except to say that as one of the conditions to being allowed that privilege is that it must render service to all members of the public who so request and pay for it. ²

It is to be observed that a household may well include members who are not in any way involved in or responsible for the business carried on by one of the family members in whose name the home phone is listed. This applies particularly to the plaintiff Geraldine Josephson and also to any other members of the family who may reside in the family home. They are all members of the public to whom the defendant is obliged to make its service available so long as it is paid for. The defendant is not without other remedies to collect its charges against the separate business entities conducted by plaintiff John Josephson. But it is our opinion that the defendant should not be permitted to use the pressure of imposing a penalty upon the home and the family by denying them a public service they are entitled to and paying for. This analogy seems helpful: Suppose a man owes a common carrier, such as a bus company, a debt for freight it has hauled for him or his business. He wants to travel as a passenger and offers cash for his fare. The company refuses to sell him a ticket or carry him because he owes them a prior debt. In this refusal the carrier would violate its responsibility to the public to carry all who present themselves and pay the required fare. A fortiori, a wife and/or other members of the family should be entitled to such transportation.

In accordance with what has been said above, we cannot see it as other than a deprivation of the plaintiffs of their rights to cut off their home phone service because charges on the separate business phone were delinquent. ³ We therefore agree with plaintiffs' contention that the disconnection of their home phone was wrongful.

The second proposition argued by the defendant: that in any event, the jury was justified in finding that the plaintiffs suffered no damage is paradoxical indeed. This would involve the postulate that a person is just as well off without defendant's service as with it. If this be true, and there is no advantage to the customer in having its service, the question must be asked, what is the defendant charging its customers for, and what are they paying for? The defendant company does a sufficiently good job in advertising the numerous advantages and the desirability of its service to the public that it should need no assist here. The same is true of the potential critical needs in certain exigencies, and of the aspects of the service which have similar effects upon those who may want to communicate with plaintiff family.

It seems sufficiently obvious as to hardly justify comment that what people are willing to pay for has some value to them, and that, by the same measure, being without such service, results in some damage. It is only a little short of amazing that the defendant would here take the position that the plaintiffs' home telephone was practically valueless to them, particularly because they had only the slight inconvenience of going two doors away to use the telephone. The fact that defendant's counsel seems to have so persuaded the jury...