Shehi v. Southwestern Bell Telephone Company
| Decision Date | 18 September 1967 |
| Docket Number | No. 9349.,9349. |
| Citation | 382 F.2d 627 |
| Parties | Lawrence D. SHEHI, d/b/a Shehi Transfer and Storage, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Donald A. Jones, Manhattan, Kan. (David K. Clark, Manhattan, Kan., on the brief), for appellant.
William C. Sullivan, Topeka, Kan., for appellee.
Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge.
This appeal is taken from a summary judgment entered by the District Court for the District of Kansas against the appellant-plaintiff upon each of two counts of a complaint alleging damage through the wrongful conduct of the appellee telephone company. The cause, originally filed in state court, was removed upon allegation of diversity jurisdiction and claim to the requisite amount of damage.
Prior to May 1964, appellant was a customer of Southwestern Bell and had an assigned number and listing in the Manhattan, Kansas, telephone directory under the name Shehi Transfer and Storage Company. At such time, Shehi was agent for North American Van Lines and an additional listing existed for the same number under North American's name, the cost of which was subject to an arrangement between Shehi and North American. In Count One of his complaint, appellant alleged that when Southwestern issued a new directory in November 1964, the telephone company refused to assign to him a number or listing although he had a contract agreeing to such service. Through application of the discovery processes, primarily the deposition of Mr. Shehi, the existence of such a contract was completely negatived as a matter of law under his own version of the facts and the conclusionary aspects of his claim set forth in the complaint shown to be completely without merit. It is firmly established under Rule 56, Fed.R.Civ.P., that facts alleged in a complaint may be pierced by discovery and that the pleader may not rest upon such allegations to perpetuate a non-existent issue of fact. Bolack v. Underwood, 10 Cir., 340 F.2d 816, 819. Appellant's belated argument that he was prevented from obtaining a contract and his reference to a conspiracy participated in by Southwestern Bell are not within the issues of the case as contained in the record and amount to little more than legal impertinence. The granting of summary judgment on Count One was manifestly correct and the judgment of the trial court in such regard is affirmed.
In Count Two of his complaint appellant alleged that he suffered damage in the sum of $150,000 because the telephone company reassigned his telephone number to a competitor. Again, the generalities of these allegations were pierced through discovery and the trial court, considering the undisputed facts so developed, granted summary judgment adverse to appellant holding that as a matter of law the telephone company had acted reasonably under all the circumstances. Review of the correctness of this ruling requires a recital of the admitted facts and a consideration of the pertinency of the disputed facts.
For several years prior to May 1964, appellant had been conducting a small moving and storage company in Manhattan, operating both locally and as agent for North American.1 His business was essentially a one-man venture and when, in 1963, he was severely injured in an accident, the business rapidly deteriorated economically. By May or June 1964, he had been foreclosed by the Small Business Administration, he had lost his lease, his equipment, and his agency with North American. He failed to pay his telephone bill and the telephone company cut off his service on May 5.2 Except for a conversation pertaining to payment of the bill (it is still unpaid), appellant had no communication with the telephone company until he filed suit in the state court in August 1964.
In May 1964, North American appointed the ABC Moving and Storage Company as its new agent in Manhattan. Representatives of these two companies requested the telephone company to...
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Grindsted Products, Inc. v. Kansas Corp. Com'n
...377, 664 P.2d 798 (1983). A legally established tariff should be construed in the same manner as a statute. Shehi v. Southwestern Bell Telephone Company, 382 F.2d 627 (10th Cir.1967). Tariff schedules are to be construed as a whole, including footnotes, from the ordinary and popular meaning......
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Atkin Wright & Miles v. Mountain States Telephone and Telegraph Co.
...Wright & Miles, supra, 681 P.2d at 1263, we held that tariffs have the binding force of law. See also Shehi v. Southwestern Bell Telephone Co., 382 F.2d 627, 629 n. 2 (10th Cir.1967); First Central Service Corp. v. Mountain Bell Telephone, 95 N.M. 509, 623 P.2d 1023, 1025 (N.M.App.1981). Cf......
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Teleco, Inc. v. Southwestern Bell Telephone Co.
...heard oral arguments on the same. Tariffs filed with the Oklahoma Corporation Commission "are the law". Shehi v. Southwestern Bell Telephone Company, 382 F.2d 627 (Tenth Cir. 1967). See Note 1, supra. Also see Palermo v. Bell Telephone Company of Pennsylvania, 415 F.2d 298 (Third Cir. 1969)......
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Exhibitors Poster Exch., Inc. v. National Screen Serv. Corp.
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