Southwestern Bell Tel. Co. v. Rucker

• Decision Date: 12 May 1976
• Docket Number: No. 6427,6427
• Citation: 537 S.W.2d 326
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, INC., et al., Appellants/Appellees, v. J. Ross RUCKER et al., Appellees/Appellants.
• Court: Texas Court of Appeals

Page 326

537 S.W.2d 326

SOUTHWESTERN BELL TELEPHONE COMPANY, INC., et al., Appellants/Appellees, v. J. Ross RUCKER et al., Appellees/Appellants.

No. 6427.

Court of Civil Appeals of Texas,

El Paso.

May 12, 1976.

Rehearing Denied June 9, 1976.

Shafer, Gilliland, Davis, Bunton & McCollum, Inc., James M. O'Leary, Perry Davis, Jr., Odessa, Marlin L. Gilbert, James E. Barden, San Antonio, for appellants/appellees.

A. R. Archer, Jr., Monahans, Max E. Ramsey, Odessa, for appellees/appellants.

OPINION

OSBORN, Justice.

This case presents an appeal by both parties in a suit originally filed by the owners of radio station KVKM in Monahans, Texas, against Southwestern Bell Telephone Company and its local manager, John Zittle, for damages. Based upon jury findings of negligence and gross negligence, a judgment was entered for the plaintiffs for $2,000.00 actual damages and $35,000.00 exemplary damages. In addition, the trial Court awarded the Telephone Company judgment against the station owners for $2,872.30 on a stipulated debt for services rendered. We reverse and render the judgment against the Telephone Company and affirm the judgment against the station owners.

The broadcast studio of KVKM is located on the north side of Monahans and the transmitter is six miles north of the studio. In addition to regular telephone service to the studio, the Telephone Company also provides remote control lines from the studio to the transmitter in order that the transmitter may be operated by personnel at the studio. It is possible to operate the transmitter without the remote control lines, but this requires personnel to be at the transmitter site. KVKM broadcasts certain high school athletic events, including football and baseball games, and these require telephone lines from the stadium where each game is played. In addition, Sunday morning church services are broadcast nine months each year from the First Baptist Church and three months each year from the First Methodist Church through the use of Telephone Company lines. Other special broadcasts also require the use of Telephone Company lines.

The owners of the station, being the plaintiffs, alleged that in March, April, and May, 1971, the defendant's employees disconnected the remote control lines at a terminal between the studio and transmitter causing a sudden excessive surge of voltage, resulting in the blowing of fuses, and interruption of broadcast service, and damage to the transmitter facilities. On August 17, 1971, the remote control lines were intentionally disconnected when plaintiffs failed to pay the defendant for past due charges, and this was alleged to have resulted in interruption of broadcast services and additional damage at the transmitter.

Plaintiffs also alleged an inability to broadcast several football and baseball games in 1970, 1971, and 1972 because the Telephone Company failed to provide proper connections for remote lines at the designated stadiums. Similar allegations were made concerning a broadcast to be made from a Jaycee carnival in 1973. The inability to make these broadcasts allegedly resulted in loss of sponsors and revenues and materially damaged the credibility of the station in the local community resulting in a reduction in value of the station. In addition, in March, 1972, the lines to the First Baptist Church and the First Methodist Church were crossed and the service from each church was heard in the sanctuary of the other church, resulting in a disruption of religious services carried by the radio station.

By a partial summary judgment, the trial Court determined that certain Telephone Company Tariffs and the one-year statute of limitations provided for in the Communications Act of 1934, barred or limited recovery as to all conduct of the defendant except the disconnecting of remote control lines on August 17, 1971, although evidence of the other acts were admitted on the issues relating to malice and exemplary damages. With regard to the August incident, Mr. Zittle wrote to Ross Rucker, an owner and general manager of the station, on August 3, 1971, advising that unless a payment of $1,000.00 was received by August 16, 1971, telephone service would be suspended on Tuesday morning, August 17, 1971. On the afternoon of August 17th, Mr. Zittle called the station and was told by Mr. Rucker that no payment had been made. Mr. Zittle said he told Mr. Rucker that the lines would be cut off, and he had a work order issued to accomplish that purpose, knowing that the station could still broadcast with personnel at the transmitter. In the meantime, Mr. Rucker called Mr. Fyffe with the Telephone Company in Lubbock and said he received an assurance that the lines would not be disconnected. Mr. Fyffe denied this in his testimony and said he told Mr. Rucker that he would not countermand Mr. Zittle's determination to disconnect the lines. When a serviceman disconnected the lines at 5:00 o'clock P.M., the station went off the air. Since that was not intended by Mr. Zittle, he went to the transmitter, met the service employee, and had the lines reconnected. Thereafter the station experienced considerable difficulty and an independent engineer concluded that the lines had been reversed when they were reconnected. After a change in connections, the difficulties were alleviated as to the transmitter operations.

Much of the testimony was in dispute and the Telephone Company offered evidence to show that some of the broadcast problems related to poor maintenance at the station, some problems related to remote lines furnished by General Telephone Company and other companies unrelated to Southwestern Bell Telephone Company, and some of the problems were related to errors on the part of the remote broadcasters at the various athletic events. The record consists of over 270 pages of transcript, five volumes of testimony, and five volumes of exhibits. The jury found that on August 17, 1971, Mr. Zittle was an agent of the Telephone Company, acting in a managerial capacity, and he was in the scope of his employment when he ordered the remote control lines disconnected. They failed to find that the Telephone Company authorized or ratified his acts in having the lines disconnected, and also failed to find that plaintiffs contended that there were overcharges made by the Telephone Company on these lines. The jury found the Telephone Company and its manager did not act with malice, and that the lines were disconnected because of plaintiffs' failure to pay its bill. They found that the manner in which the Company caused the lines to be reconnected was negligence, such negligence was a proximate cause of plaintiffs' damages, and that such negligence amounted to gross negligence, and damages as provided for in the judgment against the Telephone Company. The Telephone Company and its manager present 11 points of error in their appeal which we shall consider first, and then we shall consider the 16 points of error in the appeal by the owners of the station.

The first point urges that the trial Court erred in entering judgment in an amount in excess of that allowed under the applicable tariff. The General Private Line Services and Channels Tariff in effect at the time provides:

'The liability of the Telephone Company for damages arising out of mistakes, omissions, interruptions, delays, or errors or defects in transmission occurring in the course of furnishing service, channels or other facilities and not caused by the negligence of the customer, or of the Telephone Company in failing to maintain proper standards of maintenance and operation and to exercise reasonable supervision, shall in no event exceed an amount equivalent to the proportionate charge to the customer for the period of service during which such mistake, omission, interruption, delay, or error or defect in transmission occurs.'

' There can be no question as to the right of a telephone company doing a general public business to establish reasonable rules and regulations for furnishing service to patrons and for the conduct of its business. Ordinarily regulations so made will be presumed to be reasonable and necessary, unless the contrary is shown.' Kelly v. Southwestern Bell Telephone Co., 248 S.W. 658 (Tex.Comm.App., 1923, judgmt. adopted). The Tariff is binding on a subscriber to a company's telephone service and its effect is not dependent on the subscriber's actual knowledge of the Tariff. Alcazar v. Southwestern Bell Telephone Company, 353 S.W.2d 933 (Tex.Civ.App., Austin 1962, no writ). Tariffs are even recognized as having the force and effect of law. Carter v. American Telephone & Telegraph Company, 365 F.2d 486 (5th Cir. 1966), cert. denied, 385 U.S. 1008, 87 S.Ct. 714, 17 L.Ed.2d 546 (1967).

Appellants rely upon several cases limiting liability under a contract or tariff where there was a failure to print a listing in the yellow pages of a telephone book. Russell v. Southwestern Bell Telephone Company, 130 F.Supp. 130 (E.D.Tex.1955); Wade v. Southwestern Bell Telephone Company, 352 S.W.2d 460 (Tex.Civ.App., Austin 1961, no writ). They also cite cases holding that provisions of a tariff apply in a case of trespass and in a suit for damages for failure to provide uninterrupted private line service. See Alcazar v. Southwestern Bell Telephone Company, supra; and American Telephone and Telegraph Company v. Florida-Texas Freight, Inc., 357 F.Supp. 977 (S.D.Fla.1973).

The station owners urge that, where negligence is the basis of the cause of action, recovery may be had for damages sustained under the holding in Mountain States Tel. & Tel. Co. v. Hinchcliffe, 204 F.2d 381 (10th Cir. 1953). As noted in American Telephone and Telegraph Company v. Florida-Texas Freight, Inc., supra, the Hinchcliffe decision is inapplicable where a tariff is in effect.

Practically the same identical tariff as relied upon by the Telephone Company in this case was considered by the Court in Southern Bell...