Sommer v. Mountain States Tel. & Tel. Co.

• Decision Date: 04 March 1974
• Docket Number: No. 2,CA-CIV,2
• Citation: Sommer v. Mountain States Tel. & Tel. Co., 519 P.2d 874, 21 Ariz.App. 385 (Ariz. App. 1974)
• Parties: , 5 P.U.R.4th 125 Ronald W. SOMMER, Appellant, v. The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, Appellee. 1510.
• Court: Arizona Court of Appeals

Page 874

519 P.2d 874

21 Ariz.App. 385, 5 P.U.R.4th 125

Ronald W. SOMMER, Appellant, v.The MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, a corporation, Appellee.

No. 2 CA-CIV 1510.

Court of Appeals of Arizona, Division 2.

March 4, 1974.

As Amended March 15, 1974.

Ronald W. Sommer, in pro per.

Bilby, Thompson, Shoenhair & Warnock, P.C., by T. Scott Higgins, Tucson, for appelee.

OPINION

HOWARD, Judge.

The facts which gave rise to this controversy are as follows.Appellant(plaintiff below) is an attorney practicing law in Tucson, Arizona.Appellee(defendant below) is an exclusively-franchised utility providing telephone service in Tucson.As part of its ordinary telephone services, defendant, upon request and for a reasonable time undertakes to monitor a previous telephone number, intercept incoming calls and refer callers to a new number of the subscriber.This is called 'intercept service'.

Prior to the month of May, 1971, plaintiff was using and was listed in the telephone directory as having the number 623--8638.In May he moved his office and acquired a new number, 624--8601, from an attorney who was leaving private practice.This change of address and telephone number was reflected in a new telephone directory which was distributed ten weeks later, beginning July 19, 1971.

Before acquiring his new telephone number, plaintiff telephoned and discussed his impending move with a business representative of Mountain Bell.He was told that the telephone company would be willing to place his old number on intercept service.He specifically inquired whether the intercept service could be provided until distribution of the new telephone directories was completed and was assured that the company records would reflect that the service should remain in effect until delivery of the new directories.A notation was in fact made on the company records and in reliance upon this plaintiff took over the new number.

On June 14, 1971, 'due to a shortage of dual rotational numbers'plaintiff's old telephone number was assigned to another subscriber and the intercept service was discontinued without notice.

After discontinuance of the service, telephone calls placed to the plaintiff's old number were not intercepted by Mountain Bell nor were they referred to him by the new subscriber to whom the number had been assigned.Distribution of the new directories was not completed until July 26, 1971.

Plaintiff brought this action against the phone company to recover damages caused by discontinuance of the intercept service.

At the time in question, there was in effect a general Exchange Tariff, General RegulationSec. 20(G) which provided in pertinent part:

'(G)(1) In view of the fact that the customer has exclusive control of his communications over the facilities furnished him by the Telephone Company, and of the other uses for which facilities may be furnished him by the Telephone Company, and because of unavoidability of errors incident to the services and to the use of such facilities of the Telephone Company, the services and facilities furnished by the Telephone Company are subject to the terms, conditions and limitations specified in (2), (3) and (4) following.

(G)(2) The liability, of any, of the Telephone Company for mistakes, omissions, interruptions, delays, errors or defects in transmission, service or facilities shall in no event exceed the amount of the charge to the customer for the transmission, service or facilities for the period of the mistake, omission, interruption, delay, error or defect; provided, however, that this limitation of liability shall not apply in the event the mistake, omission, interruption, delay, error or defect in transmission, service or facilities is caused by the Willful and deliberate act of the Telephone Company(unless the act...