Pollock v. New England Tel. & Tel. Co.

• Citation: 194 N.E. 133,289 Mass. 255
• Parties: POLLOCK v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Decision Date: 30 January 1935
• Court: United States State Supreme Judicial Court of Massachusetts

289 Mass. 255
194 N.E. 133

POLLOCK
v.
NEW ENGLAND TELEPHONE & TELEGRAPH CO.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 30, 1935.

Action of contract or tort by Tobias Pollock against the New England Telephone & Telegraph Company. From an order sustaining a demurrer to the declaration, plaintiff appeals.

Affirmed.

Appeal from [289 Mass. 256]Superior Court, Suffolk County; F. T. Hammond, Judge.
E. A. Hudson and I. M. Libman, both of Boston, for appellant.

M. F. Weston, of Boston, for defendant.

FIELD, Justice.

This is an appeal from an order sustaining a demurrer to the declaration in an action of contract or tort. G. L. (Ter. Ed.) c. 231, § 96. Morrill v. Crawford, 278 Mass. 250, 252, 179 N. E. 609. The declaration is in two counts alleged to be for the same cause of action, the first count in contract, the second count in tort.

Allegations of the first count-in contract-include the following: ‘And the plaintiff says, that the plaintiff is, and for many years last past has been engaged in the coal business. * * * That the defendant is, and for many years past was a public service corporation, supplying telephone service to subscribers at rates set by it. That a telephone, with the usual business service attached

[194 N.E. 134]

thereto, was subscribed to by the plaintiff for the said business * * * and installed by the defendant, by its agents or servants, for which the defendant [289 Mass. 257]charged, and the plaintiff regularly paid, the billed monthly charges. * * * That it was the duty of the defendant to supply good and satisfactory instruments and service. * * * That in fact, since on or about January 15, 1928, and for a long time thereafter, the telephone was out of order, and the service defective and unsatisfactory. That the defendant, by its agents or servants was notified of this defective and unsatisfactory service on numerous occasions, but the defendant failed, neglected, and refused to repair, improve, or put in order the said telephone and service, and otherwise failed to perform its part of the contract, or to provide satisfactory service, although requested by the plaintiff to do so, and regular monthly payments for this service being made.’

Allegations of the second count-in tort-include the following: ‘And the plaintiff says that in pursuance of a contract the defendant telephone company placed a business telephone in the premises of the plaintiff. * * * That the said business telephone and its proper functioning was important, necessary and essential in the management and conduct of the plaintiff's business. That the defendant, its agents or servants, knew, or should have known this. That the proper functioning of said telephone with the service attached to it, was perculiarly, solely and wholly in the defendant's control. That the plaintiff paid the monthly billed charges for same. That the defendant, by its agents or servants, carelessly and negligently caused or allowed the said telephone to become and to be out of order, and the service to be unsatisfactory and practically useless, so that said telephone and service did not properly function from on or about January 15, 1928, and for a long time thereafter. That although this...