Southwestern Bell Telephone Co. v. Boyce Iron Works, Inc.

• Decision Date: 28 January 1987
• Docket Number: No. 14612,14612
• Citation: 726 S.W.2d 182
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. BOYCE IRON WORKS, INC., Appellee.
• Court: Texas Court of Appeals

Page 182

726 S.W.2d 182

SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. BOYCE IRON WORKS, INC., Appellee.

No. 14612.

Court of Appeals of Texas Austin.

Jan. 28, 1987.

Rehearing Denied March 25, 1987.

Robert J. Hearon, Jr., Graves, Dougherty, Hearon & Moody, Austin, for appellant.

Todd Wade, Brown, Maroney, Rose, Barber & Dye, Austin, for appellee.

Before SHANNON, C.J., and EARL W. SMITH and GAMMAGE, JJ.

SHANNON, Chief Justice.

Appellee Boyce Iron Works sued appellant Southwestern Bell Telephone and others ¹ in the district court of Travis County for property damages resulting from a fire. After a trial to a jury, the district court rendered judgment for Boyce for $229,596.88 in actual damages, $110,937.99 for prejudgment interest, $500,000 in "additional" damages, and attorney's fees. This Court will reverse the judgment and here render judgment that Boyce take nothing from the telephone company.

The Boyce Iron Works offices burned during the early morning hours of October 10, 1981. The fire started during a burglary of the premises. Boyce's offices were served by a "silent" burglar alarm system installed in 1974 by Master Burglar Alarm. A silent alarm system is one which, when triggered, does not make noise but instead shows an interruption in a circuit on the alarm company's control panel at its offices. The alarm company's equipment and relays at Boyce were connected to the alarm company's office through a private line circuit provided by the telephone company.

On Friday, October 9, 1981, at 4:30 p.m., the monitoring equipment indicated an unknown problem with the Boyce alarm system. Lloyd Ligon, president of the alarm company, attempted to test for the problem. The cause of the problem could have been in the alarm company's equipment or in the telephone line, although Ligon thought that it was in the telephone line. Ligon did not proceed on to Boyce's premises to check the connection between the alarm system and the telephone line or to check the alarm equipment. Although Ligon thought the problem was in the telephone line, he did not report the problem to the telephone company.

Meanwhile, by 5:00 p.m. Boyce's employee had informed L.W. Spillar, Jr., Executive Vice President of Boyce, of the problem in the Boyce alarm system. Spillar sent the employee home, closed the office, and, instead of reporting the problem to the alarm company or to the telephone company, went to pick up his wife from work. Spillar then returned to the office at 5:30 p.m. and called the alarm company to report the problem just before 6:00 p.m.

At that time, Ligon told Spillar that he thought the problem was in the telephone line and that Ligon could call the telephone company to report the problem but, in his personal opinion, he "didn't think it would do any good" and that there would be no response from the telephone company before Monday. Although Ligon offered to go out to Boyce's office to look at the system, Spillar replied that there would be no point in the trip to the office if the problem were in the telephone line. Instead, Spillar suggested that he call Ligon again the following morning about the alarm. Ligon did not call the telephone company to report the problem, nor did Spillar insist that the telephone company be notified, nor did Spillar, himself, report the problem to the telephone company. Early the next morning Spillar received a telephone call that there was a fire at Boyce's office and when he arrived the office was ablaze.

Boyce's scheme for burglar protection was further thwarted since the security service employed by Boyce failed to patrol Boyce's premises during the evening of October 10.

In its suit against the telephone company and the alarm company, Boyce asserted that the malfunction of the alarm system made possible the burglars' entry into its premises. The alarm system failed to function, pleaded Boyce, "because of a defect in that part of the system supplied by Bell to [Boyce]." After pleading that a defect in the telephone company's equipment caused the alarm system to malfunction, Boyce then asserted that the telephone company was liable for its damages based, among other things, upon theories of negligence and violations of the Deceptive Trade Practices Act.

The jury answered special issues that the telephone company represented that its service had "characteristics, uses or benefits which it did not have"; that the telephone company represented that its service was of a "particular standard, quality or grade, when it was of another"; and that the telephone company engaged in an "unconscionable course of conduct" and that such course of conduct was "done knowingly"; and that such action was a producing cause of Boyce's damages. Finally, for such knowing conduct, the jury assessed the telephone company $500,000 as "additional damages."

With respect to Boyce's cause of action for negligence, the jury answered that the telephone company's conduct was negligent and that such negligence was a proximate cause of Boyce's damages.

An examination of the charge and the judgment makes clear that the district court rendered judgment predicated upon the jury's answers to the Deceptive Trade Practices issues.

The telephone company attacks the judgment by many points. We find it unnecessary to discuss more than three complaints: (1) that Boyce failed to obtain a finding that a defect in the telephone equipment played a part in the malfunction of the alarm system; and (2) and (3) that there is no evidence, or insufficient evidence, in support of the jury's finding that the telephone company's misrepresentations or its course of conduct were a "producing cause" of Boyce's damages.

Boyce pitched its lawsuit against the telephone company upon the premise that a defect in the telephone equipment caused the alarm system to malfunction. Because the telephone company's liability for negligence or for violation of the Deceptive Trade Practices Act hinged upon whether or not its equipment was defective, Boyce's threshold burden was to obtain a finding that a defect in the telephone equipment played a part in the malfunction of the alarm system. ²

The telephone company complains that Boyce never discharged its immediate burden of obtaining the seminal finding that the telephone equipment was defective. That complaint, although not solemnized by formal point of error, appears throughout the telephone company's brief and argument, and, accordingly, is sufficient to call this Court's attention to the question raised. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (Tex.1943).

In defense of the judgment, Boyce advances the novel waiver thesis that the telephone company "failed to request a separate issue inquiring as to whether there was a problem with the line." The burden of proof is on the plaintiff to establish its case. Boyce, of course, and not the telephone company, was interested in, and would have been benefited by a factual determination that the telephone company's equipment was defective. Accordingly, the burden was on Boyce, and not the telephone company, to request a special issue and obtain an affirmative finding that the telephone equipment was defective. Hodges, Special Issue Submission in Texas § 71, p. 179 (1959 and Supp.1969). Boyce concedes, as it must, that it did not request the submission of a special issue on that subject. The rules, of course, do not require the defendant to request the submission of the plaintiff's issues. Rodriguez v. Higginbotham-Bailey-Logan Co., 172 S.W.2d 991 (Tex.Civ.App.1943, writ ref'd).

Had the evidence been conclusive that the telephone equipment was defective, Boyce would not have been required to request the submission of a special issue. The proof, however, was not conclusive. By 4:30 Friday afternoon, Ligon, the president of the alarm company, knew that there was a problem with the Boyce alarm system. The problem was either in his company's alarm equipment or in the telephone company's equipment. Without going to Boyce's premises, Ligon attempted to test for the problem. Although Ligon concluded that the problem was in the telephone equipment, he admitted on cross-examination that the trouble could have been either in the telephone equipment or in his company's equipment.

Boyce argues, finally, that the defective equipment issue was an omitted issue, supported by some evidence, which was deemed found in favor of the judgment. Tex.R.Civ.P.Ann. 279 (1977). An issue constituting a complete and independent ground of recovery is waived unless requested in substantially correct form. An "independent ground of recovery" is the total of all the facts necessary for a litigant to recover. Omitted issues, constituting only a part of a complete and independent ground and being merely supplemental or incidental to other issues submitted and answered, are deemed found in support of the judgment. Hodges, Special Issue Submission in Texas, §§ 74, 76 (1959 and Supp.1969), Tex.R.Civ.P.Ann. 279 (1977). A party may prevent omitted issues from being deemed found in support of the judgment by proper objection to the omission. Hodges, supra at 219.

The determination that a defect in the telephone equipment played a part in the...