Southwestern Bell Tel. Co. v. Texas State Optical

• Decision Date: 23 October 1952
• Docket Number: No. 4800,4800
• Citation: 253 S.W.2d 877
• Parties: SOUTHWESTERN BELL TEL. CO. v. TEXAS STATE OPTICAL.
• Court: Texas Court of Appeals

Page 877

253 S.W.2d 877

SOUTHWESTERN BELL TEL. CO. v. TEXAS STATE OPTICAL.

No. 4800.

Court of Civil Appeals of Texas, Beaumont.

Oct. 23, 1952.

Rehearing Denied Nov. 19, 1952.

King, Sharfstein & Reinstra, Beaumont, for appellant.

Cecil, Keith & Mehaffy, Beaumont, for appellee.

WALKER, Justice.

This proceeding is a suit to compel the Southwestern Bell Telephone Company to list the name of a telephone subscriber under a heading in the classified section of the telephone directory issued in Port Arthur, Texas.

The plaintiffs are the appellees. They are Dr. N. Jay Rogers and Dr. S. J. Rogers. They are licensed optometrists and practice their profession as a partnership, of which they are the sole members. This partnership is also engaged in business as opticians. To this partnership plaintiffs have given the trade name 'Texas State Optical', and they have operated their partnership under this trade name for many years. Plaintiffs requested defendant to list trade name under the heading 'optometrists' in the classified section of the Port Arthur directory and defendant refused to do so. Plaintiffs then brought this suit.

The appeal is from an order granting plaintiffs a temporary injunction which, in effect, would require defendant to make the listing requested had it not been suspended pending the appeal. The order recites that all issues of fact were found in plaintiffs' favor. The evidence supports the facts hereinbefore stated and the following conclusions of fact:

A copy of the last Port Arthur directory issued before the suit was filed is in evidence. This is a printed booklet of 396 pages, in two sections, and it is bound under one cover. It is copyighted, and a statement that it is copyrighted appears at the foot of page 1 of the first section.

This directory contains the names of the subscribers to the telephone exchange operated by defendant at Port Arthur. Mr. West, District Manager for the defendant, testified that defendant had about 25,000 subscribers in Port Arthur.

A copy of this directory is distributed by the defendant to each of the Port Arthur subscribers. No extra charge is made for this directory and one copy is issued to the subscriber for each telephone that he has. The directory is not distributed to persons who are not subscribers to the Port Arthur exchange.

This directory is compiled by the defendant from information contained in its own records. It is apparent that defendant has at least a virtual monopoly of the service rendered by this directory.

The purpose of the directory is to enable the subscribers to communicate with one another over the telephone. It would be impossible for them to make any worthwhile use of their telephone without a directory unless the defendant employed persons to answer requests for telephone numbers unknown to the particular subscriber and the directory thus helps not only the subscriber; it clearly facilitates the operation of the defendant's own business. Mr. West testified:

'Q. The main purpose of the directory you put out is to enable people to use the telephone? A. Our directory that is compiled from that is an adjunct to the use of the telephone, yes.

'Q. Without the great majority of the people using the telephone directory you couldn't function as a telephone company, could you? A. It would be pretty difficult.

'Q. I'll ask you if it wouldn't be almost impossible? A. Highly impractical.'

The first section of the directory is printed on white paper and contains 132 pages, numbered 1 to 132. The back of the front cover and the first two pages contain information about matters pertaining to the use of a telephone. The next 127 pages are an alphabetical list of the subscribers whose telephones are connected with the Port Arthur exchange. Of the next three pages, two contain requests and admonitory statements addressed to all subscribers of the defendant's, and on one page is an advertisement of the classified section of the directory. This first section of the directory is printed on white paper.

The second part of the directory is the classified section. It covers 244 pages, numbered from 1 to 244, and is printed on yellow paper. It contains an alphabetical list of trades, businesses, professions, occupations and callings, and under each of these titles is an alphabetical list of persons who follow that calling. Many advertisements like those in newspapers or a merchant's catalog are printed in this section, and if the advertiser's name is printed in a list of names in this section, his advertisement is referred to by the following words printed under his name: '(See Advertisement This Classification)'.

These classified lists are also intimately connected with the alphabetical list of subscribers otherwise than by being bound under the same cover; classifications are also made in the alphabetical list of subscribers. For instance, if the subscriber listed there is a physician, the abbreviation 'phy' appears after his name. The classified section contains several title under which physicians are listed; the general title is 'Phys & Surgs-M.D.' Optometrists are also identified in the alphabetical list of subscribers in the same way, and so are dentists, chiropractors, and at least some of the attorneys. There may be other classifications in the alphabetical list of subscribers, but we have not extended our seavrch beyond the professions we have mentioned.

The general public is not admitted to the directory, and the only names printed in the directory are those of telephone subscribers or persons who are authorized to list themselves as using the subscriber's telephone. For instance, optometrists who are employees of plaintiffs are listed under the title 'optometrists' in the classified section, just as plaintiffs themselves are and as 'Texas State Optical' is. However, listings other than those of the subscriber's name are classed by the defendant as additional listings and extra charges are made for printing these in the alphabetical list of subscribers and in the classified section.

Defendant has printed a number of advertisements in the classified section which are directed to persons who use a directory and these advertisements point out the advantages and the values of the classified section to such persons. Use of the classified section is facilitated by printing it on paper colored differently from the paper containing the alphabetical list of subscribers, and these advertisements refer to the classified section as the 'Yellow Pages', the color of the paper on which it is printed. The following statements are typical of the advertisements made by defendant in the classified section: (a) 'Look in the Yellow Pages before you call the store or repairman;' (b) 'One call may do the work of two. If you check business numbers first in the Yellow Pages.' (c) 'Who handles that brand? Many widely advertised products are listed in the Yellow Pages;' (d) 'Won't you join our 'T' party? Save Time, Travel and needless Telephone calls. Look in the Yellow Pages before you make your business call;' (e) 'Who Sells What and Where is he? Let the Yellow Pages tell you-and save time, travel and needless telephoning;' (f) 'Save needless steps! Find names, addresses, telephone numbers in the Yellow Pages;' (g) 'Most dealers and producers are listed in the Yellow Pages;' (h) 'Are They Open Evenings? Look in the Yellow Pages. Many firms show their business hours, products, services, and other information?' (i) 'In a hurry? Use the Yellow Pages;' (j) 'Let the Yellow Pages be your shopping helper;' (k) 'Shopping is as simple as A-B-C if you use the Yellow Pages.'

The facts stated in these advertisements of defendant's, the economic status of the persons who subscribe to telephones, and the fact that each subscriber possesses a copy of the directory explain why the classified section of the directory is almost twice as think as the alphabetical list of subscribers and why such a multitude of persons list their names and advertise themselves and their calling in this section. The economic status of that part of the population which subscribes to telephones is generally better than that of persons who do not subscribe. The telephone directory, including the classified section, is available to every one of these subscribers and to such other persons as may use a subscriber's telephone, and it is obvious that a person who does use a subscriber's telephone and who does not have the name of some particular person in mind will probable use the classified section to find out the name of some person who can render him the service he wants. The truth is that the classified section of the telephone directory has become of great value and utility to all telephone subscribers because it furnishes them with necessary information, most of which is not otherwise available to them and certainly not so conveniently at hand.

The consequence is that a business or a professional man who is allowed to list his name in the classified section has a more valuable telephone than one who is not, and if the defendant undertakes to exclude a subscriber from this section while admitting his competitor, the injury to the first and the advantage to the second would be material and might constitute a form of oppression. Of course, the classified section is not absolutely necessary to the use of the telephone-but it does make the telephone of any subscriber more valuable to him because of the information which the defendant has collected and put into the classified section and made available to him.

The character of the classified section probably would exclude from it all subscribers except those who use a telephone in the pursuit of their callings, but the defendant undertakes to exclude all other telephones from this section. However, the defendant holds open this section and professes willingness to admit thereto all subscribers to business telephones. In fact, the defendant...