Mitchell v. Southwestern Bell Tel. Co., 29599
| Decision Date | 05 February 1957 |
| Docket Number | No. 29599,29599 |
| Citation | 298 S.W.2d 520 |
| Parties | Cecil C. MITCHELL, Vera Mitchell, George Croft and Lena Croft (Plaintiffs), Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a Corporation (Defendant), Respondent. |
| Court | Missouri Court of Appeals |
Kappel & Neill, Walter S. Berkman, St. Louis, for appellants.
John Mohler, George J. Meiburger, St. Louis, for respondent.
WOLFE, Commissioner.
This is an action wherein the plaintiffs seek to recover damages for breach of an advertising contract. The advertisement in question was in the classified section of the defendant's telephone directory. One of the telephone numbers in the advertisement was not the correct number, and the plaintiffs contended that they were damaged by the error to the extent of $3,741.08. The defendant counterclaimed for the contract price of two other advertisements which were correctly printed. One was in the East St. Louis classified directory and the contract price was $25; the other was in the St. Louis County classified directory and the contract price was $288. It was stipulated that the defendant was entitled to a judgment for the two amounts last mentioned, and the court directed a verdict for the defendant on the two claims and further directed a verdict in favor of the plaintiffs in the sum of $1. From the judgment that followed, the plaintiffs prosecute this appeal.
The plaintiffs were in the business of renting trailers and concrete mixers. As partners they operated under the name of 'Croft Rental Company'. They contracted for advertisements in the St. Louis classified phone directory. One advertisement took up a quarter of a page under the classification of trailers. It carried their name, pictures of various types of trailers that they rented, picture of a concrete mixer, and stated that they were members of a nation-wide rental system which permitted the renter to leave the trailer at the city of the renter's destination when rented for a one-way trip. The other advertisement was under the classification of concrete mixers. It was smaller and merely advertised the rental of the mixers.
In the larger advertisement classified under 'trailers', two phone numbers were listed. One was Evergreen 1-9384 for a rental lot on North Broadway and the other was Garfield 1-3144 for the main office and rental lot on Salisbury Street. The last number was wrong and it should have been Central 1-3144. The same error was made in the small ad for the rental of concrete mixers which carried but one number. The term of the contract was for twelve months and the plaintiffs agreed to pay the defendant $1,344 on which amount they had paid $112. The correct number of the company appeared in that part of the directory where all subscribers are listed alphabetically.
Mrs. Vera Mitchell, one of the plaintiffs, who took phone calls at the Salisbury Street address and kept the books of the company, was the only witness who testified. As most of the facts above stated were admitted, her testimony was chiefly confined to that which the plaintiffs considered proof of their damages. She testified that the Croft Company was open for business seven days a week, and that their busiest time was on weekends. The number in the classified section (Garfield 1-3144) was the number of the Senack Shoe Company, and she said that after it appeared in the advertisement instead of their proper number (Central 1-3144) she called the Senack Shoe Company to have them refer calls, erroneously made to them, to the right number. She said that she did not receive full assistance from the shoe company in this respect and that the shoe company was not open on Saturdays and Sundays.
The witness stated that she had never counted the number of phone calls the Croft Company received prior to the issues of the 1954 directory, and, over the objection of the defendant, she estimated that on Monday, Tuesday, Wednesday, Thursday, and Friday the calls had averaged twenty-five a day. She also estimated that an average of forty calls had been received on Saturdey and fifteen on Sunday. She said that after the 1954 directory was circulated she made a count of calls received on Saturday and Sunday but not on a weekday. The witness then estimated that the calls dropped from fifteen on Sunday to five, on Saturday from forty to fifteen, and on the other days of the week from twenty-five to ten. She also estimated that fifty per cent of the calls received resulted in rentals. She said that about eighty per cent of the rentals were for two dollars and twenty per cent of the rentals were for four dollars. The percentage of profit on a rental was said to be forty-five per cent. The witness further testified that under the Nationwide Trailer Rental System, of which they were members, they occasionally rented trailers for cross-country use for which they received from $7.50 to $125.
The witness stated that they had advertised by radio and television to offset the mistake in the directory and for this they had expended $1,236.88. The company earned more in 1954 than it had the previous year when its number was correctly carried in the directory. The witness attributed this to the fact that they had more trailers. She also stated that when the 1955 directory came out, with the correct number in it, their phone calls increased immediately, being almost double the number received before.
The defendant questions our jurisdiction of this appeal because the prayer of plaintiffs' petition asks for $50,000 as damages. The defendant states that since the appellants seek a new trial upon this petition the amount in controversy is $50,000 and that consequently it is in excess of $7,500, to which our jurisdiction is limited. Mo.Const. Art. V, Sec. 3, V.A.M.S. The defendant has overlooked the fact that we are not restricted to the pleadings in determining our jurisdiction. We may look at the record, and here the record discloses that the maximum damages claimed are $3,714.08, and the jurisdiction of this appeal is properly with us. Beasley v. Athens, Mo., 277 S.W.2d 538; Baer v. Baer, 364 Mo. 1214, 274 S.W.2d 298.
It is contended by the plaintiffs that the court erred in directing a verdict for nominal damages and they maintain that the various estimates made by their witness presented a reasonable basis for fixing the damages. They estimate that 50% of their phone calls resulted in sales and they estimate that they lost 4,430 calls during the year. They estimate that 80% of their rentals are for $2, and 20% for $4, and by this they arrived at an estimated gross loss on rentals of $5,316, upon which they claim a net loss of 45%, which would have been their profit. To this they add the sum paid for other advertising and the $112 paid on the contract in question to reach the total of $3,741.08 which they claim as damages. Against this...
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