Southwestern Telegraph & Telephone Co. v. Luckett

• Decision Date: 28 March 1910
• Citation: 127 S.W. 856
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. LUCKETT.
• Court: Texas Court of Appeals

Page 856

127 S.W. 856

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. LUCKETT.

Court of Civil Appeals of Texas.

March 28, 1910.

Appeal from Galveston County Court; Geo. E. Mann, Judge.

Action by A. D. Luckett against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause remanded.

Harris & Harris, for appellant. Geo. Q. McCracken, for appellee.

PLEASANTS, C. J.

We copy from appellant's brief the following sufficient statement of the nature and result of this suit: "In this case A. D. Luckett sues the telephone company for breach of contract, claiming both actual and exemplary damages. Plaintiff alleges that he was lessee of a certain residence telephone in the city of Galveston, Tex., of and from the telephone company, and that, notwithstanding the fact that he paid the lease money which he agreed to pay, the defendant company, in violation of their contract with plaintiff, refused plaintiff telephone service and disconnected plaintiff from the central office and from other subscribers to the telephone company, resulting in loss of business to the plaintiff, who is a veterinary surgeon, the plaintiff specifying 10 different persons whose patronage he lost by reason of the alleged acts of the defendant, wherefore plaintiff claimed actual damages in the sum of $285. He further alleged that the acts of the servants, agents, and employés of the corporation in refusing to accord him service after an alleged tender of the lawful amount were willful and wanton, and that said acts were ratified by and indorsed by the defendant, by reason whereof the plaintiff sought to recover the further sum of $500 exemplary damages. The defendant answered by general denial, special exceptions directed against both the allegations of actual damages and exemplary damages, general denial, and special answers setting up the fact that the plaintiff was in arrears and indebted to the defendant for his telephone rent for the months of March, April, and May, 1908, in the sum of $6, and in April plaintiff owed the defendant $4, and the defendant sent a notice requiring payment; that after the 1st of May, 1908, the defendant sent another notice, and that, the plaintiff refusing to pay his telephone rent, the company exercised its lawful right under the lease, and refused further service to the plaintiff, and attempted to take the telephone instrument back into its possession, but was not allowed to do so by the plaintiff, and the defendant sought to recover judgment for at least $4 telephone rent against the plaintiff, and said that, had the plaintiff made any tender to the defendant in good faith, service would have been furnished the plaintiff upon his complying with the terms and conditions governing the defendant and their subscribers and patrons, and defendant in its said answer tendered plaintiff such service on terms common to other subscribers to telephones of the defendant." The trial in the court below with a jury resulted in a verdict and judgment in favor of plaintiff in the sum of $86.25 actual and $300 exemplary damages.

It would serve no useful purpose to discuss in detail or specifically pass upon each of the 37 assignments of error presented in appellant's brief, and we shall content ourselves with a brief statement of the grounds upon which we have concluded that the judgment of the court below should be reversed. In our opinion neither the pleadings nor the evidence is sufficient to sustain any recovery of exemplary damages. The cause of action alleged is the breach by appellant of its contract to furnish appellee telephone service, and the allegation that the breach was "willful and wanton" is not sufficient to render appellant liable for exemplary damages for such breach. At common law no exemplary or punitive damages were recoverable in a suit on a contract except in actions for breach of contract of marriage. If it be true, as thought by some of the text-writers, that this rule grew out of the importance attached by the common law to forms of action, the rule has nevertheless been adopted by the courts of this state, notwithstanding the common-law forms of action do not prevail under our system. In the case of Railway Co. v. Shirley, 54 Tex. 142, our Supreme Court, in discussing this question, say: "The reason of the rule that confines the recovery in suits on contract to actual damages is believed to still prevail, although we have no forms of action. If, in ordinary litigation on contracts, issues as to motives and exemplary damages be allowed, the result would be greatly to increase the intricacy and uncertainty of such litigation. The exclusion of such issues in suits on contracts may be justified on the policy of limiting the uncertainties and asperities attending litigation of such issues to that class of cases in which the nature of the wrong complained of renders those issues and evils to some extent unavoidable." In the case cited it is held that a cause of action for breach of contract and for damages for a tort may be appropriately joined in one suit where both grow out of the same transaction, and, if the tort was maliciously committed or was due to the gross negligence of the defendant, exemplary damages might be recovered therefor.

In the case of Hooks v. Fitzenrieter, 76 Tex. 277, 13 S. W. 230, plaintiff sued for damages for breach of contract on part of defendant to furnish plaintiff a building in which to conduct a mercantile business. The petition alleged that the contract sued on was breached by the defendant "willfully, fraudulently, and with malice," and sought to recover for such breach actual and exemplary damages. Our Supreme Court held that the petition was insufficient to entitle plaintiff to recover exemplary damages. In the opinion in that case the court, after reaffirming the doctrine announced in the Shirley Case, supra, that exemplary damages are not recoverable for breach of contract unaccompanied by tort, say: "In our state, however, the right to sue for a breach of contract and for a tort, when both grow out of the same transaction and can be properly litigated together, is recognized. It would be difficult to formulate an inflexible rule which would apply to all cases of this character. The allegations upon which the exemplary damages are sought should show that the manner in which the breach was committed by the defendant amounted to a tort for which an action would lie for exemplary damages, independently of any right to recover actual damages by reason of the breach of contract alone.

The general averment in the petition that it was done "with malice, willfully and fraudulently," etc., are not sufficient for this purpose. The facts should be stated attending the breach, so that it could be determined from them whether they constituted, as alleged by the pleader, malice and fraud, and whether the circumstances connected with the breach amounted to a tort." If the petition in the instant case was sufficient, the judgment for exemplary damages could not be sustained because there is no evidence to support the verdict of the jury upon this issue. There is no testimony tending to show fraud or malice on the part of appellant's agents in refusing to continue to furnish appellee telephone service, and the undisputed evidence shows that no tort or trespass of any kind was committed by appellant's employés in discontinuing such service. The...