Newsham v. United Telephone Co.
| Decision Date | 29 May 1954 |
| Docket Number | 25 |
| Citation | 2 Pa. D. & C.2d 312 |
| Parties | Newsham v. United Telephone Company of Pennsylvania |
| Court | Pennsylvania Commonwealth Court |
November term, 1953
Swope Brown & Swope, for plaintiff.
Keith, Bigham & Markley, for defendant.
Motion for judgment on the pleadings.
This matter is before the court on defendant's motion for judgment on the pleadings. Plaintiff's action is based upon the alleged omission of a statement or mention of plaintiff's professional capacity from the alphabetical list of subscribers, and the alleged omission of plaintiff's name, address, and telephone number from the Gettysburg Classified Business List under the heading " Veterinarians", in defendant's 1953 telephone directory, all of which plaintiff claims was contrary to the terms of the verbal agreement alleged to have been entered into between plaintiff and defendant. Defendant filed an answer with new matter, alleging that since about January 1, 1938, it has had on file with the Pennsylvania Public Utility Commission the following tariff provision:
Plaintiff admits that this provision is contained in defendant's tariff. Defendant contends that this provision is a tariff regulation within the statutory definition and, having been filed in accordance with the statutory provision (66 PS § 1142), is binding upon plaintiff and defendant and bars recovery by plaintiff of the damages claimed in this action.
Regulations governing directories are properly included in tariffs:
Steerman v. Bell Telephone Company of Pennsylvania, 24 P. U. C. 316 (1943). Where service is contracted for, the rate so fixed by the Public Utility Commission represents " the whole duty and the whole liability" of the company: Western Union Telegraph Company v. Esteve Brothers & Company, 256 U.S. 566, 572; 41 S.Ct. 584, 586; 65 L.Ed. 1094, and " becomes a part of the contract" : Correll v. Ohio Bell Telephone Co., 63 Ohio App. 491, 27 N.E.2d 173. Valid rules and regulations affecting rates, contained in a tariff filed with the Public Utility Commission, become a part of the contract entered into between the company and the subscriber by operation of law: Riaboff v. Pacific Telephone & Telegraph Co., (Cal. App.) 102 P.2d 465 (1940). The tariff provision in this case is sufficient to relieve the company from liability to plaintiff if such tariff provision is valid. The question to be determined is whether a telephone company can contract against liability for negligence in the publication of its directories by a provision in its tariff.
The general rule governing contract provisions providing for exemption from liability for negligence is stated in A. L. I. Restatement of The Law of Contracts, § 575, as follows:
" A bargain for exemption from liability for the consequences of a wilful breach of duty is illegal, and a bargain for exemption from liability for the consequenses of negligence is illegal if . . . (b) one of the parties is charged with a duty of public service, and the bargain relates to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation."
A provision against liability for acts of negligence contained in the contract between persons conducting a strictly private business and relating entirely to their personal and private affairs does not contravene any policy of the law (Cannon v. Bresch, 307 Pa. 31, 35 (1932), although such contracts are not favored and are strictly construed: Crew v. Bradstreet Co., 134 Pa. 161 (1890). But, where one of the parties is charged with a duty of public service, such contracts are void as contrary to public policy when applied to negligence in the performance of any part of its duty to the public, for which it has received or been promised compensation. The rule is most frequently applied to common carriers: Eckert v. Pennsylvania Railroad Company, 211 Pa. 267 (1905); Quaker Worsted Mills Corporation v. Howard Trucking Corporation, 131 Pa.Super 1 (1938). Thus, where a railroad pass contained provisions that the holder assumed all risks of personal injury and released the company from all liability therefor, it was held that the provision was ineffective to relieve defendant from liability where lack of due care is shown: Turek, admrx., v. Pennsylvania Railroad Company, 361 Pa. 512, 515 (1949). The rule has also been applied to telegraph companies which are permitted to make reasonable rules affecting responsibility, but may not stipulate for exemption from liability caused by their own negligence: Bailey & Company v. Western Union Telegraph Company, 227 Pa. 522, 529. (1910). The operator of a parking lot cannot stipulate for nonliability for negligence: Baione v. Heavey, 103 Pa.Super 529 (1931). The rule has recently been applied to banks. In Thomas v. First National Bank of Scranton, 376 Pa. 181 (1954), a depositor, seeking to stop payment of his check, executed to the bank a stop payment request which contained a clause releasing the bank from all liability if, in violation of the order, the bank paid the check through inadvertence, accident or oversight. The Supreme Court held that the agreement, releasing the bank from liability for negligence, was void as against public policy.
Defendant in the present case is undoubtedly charged with a duty of public service, and it did receive, or was promised, compensation for the contracted service which included the listing of plaintiff's name in its directory. The rule, as stated, recognizes the fact that a public service company may enter into contracts which are not in the performance of any part of its duty to the public, e. g., it might lease a storeroom in its office building. A provision in such a lease exempting the company from liability for negligence would not be illegal: Manius et vir, v. Housing Authority of the City of Pittsburgh 350 Pa. 512 (1944). The question then is whether...
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