Stein v. Diamond State Telephone Co.

• Decision Date: 27 March 1929
• Citation: 34 Del. 185,146 A. 737
• Court: Delaware Superior Court
• Parties: E. LEROY STEIN v. DIAMOND STATE TELEPHONE COMPANY, a corporation of the State of Delaware

146 A. 737

34 Del. 185

E. LEROY STEIN v. DIAMOND STATE TELEPHONE COMPANY, a corporation of the State of Delaware

Superior Court of Delaware, New Castle County

March 27, 1929

[Copyrighted Material Omitted]

NOTE.--The jury rendered a verdict for the plaintiff for $ 500.00, but pursuant to the application of the defendant such verdict was subsequently set aside by the court because the evidence did not justify a verdict for that amount.

Superior Court for New Castle County, March Term, 1929.

Action on the case, No. 173, September Term, 1928.

It appeared from the evidence that the plaintiff, Dr. Stein, was a dentist in Wilmington, and prior to November 3, 1926, had maintained an office with one Dr. Lewis, at 715 Market Street, of that city, where the two of them did business under the name of "New York Dental Parlors"; their individual names were, however, listed in the telephone directory, though under the same number.

While Dr. Lewis remained at the old stand, on November 3, 1926, the plaintiff moved his office to 400 Market Street, notified the defendant company of such removal, and had it install a telephone for him at that address with a new and different number from that previously used at 715 Market Street.

As a part of the service furnished all persons installing telephones, the defendant company was and long had been in the habit of issuing directories, containing alphabetical lists of the names of its subscribers, in February and August of each year, and when such telephones were installed for business purposes the occupation of the subscribers, also appeared in such directories.

When the directory of February, 1927, was issued, while the 400 Market Street address, the name, occupation and new telephone number of Dr. Stein were correctly listed therein, his name occupation and former telephone number at 715 Market Street were, also, listed at that address as in the previous directory.

The plaintiff then complained at the Wilmington office of the defendant company of the double listing of his name in that directory, and while he admitted that such company immediately offered to intercept and properly transmit all calls made to him at that address, he testified that he was also told that his 715 Market Street listing had been made pursuant to a contract with Dr. Lewis alone, and that by reason of that fact the company doubted its right to omit such listing, without notice from him.

On June 16, 1927, Dr. Stein moved his office from 400 Market Street to his home on Silverside Road, near Talleyville, in New Castle County, and while the defendant company was notified of such removal, and the plaintiff then had a residence telephone, it failed to list his name in any way, as of that place, in the August directory of that year, though the old 715 Market Street listing still appeared.

There was no specific proof of any damages suffered by the plaintiff by reason of the double listing complained of. There was, however, proof that various persons, who were in need of dental work, and who would have had it done by Dr. Stein, had been compelled to go to other dentists because they were unable to find his name and address in the August directory of 1927. There was, also, proof of certain monetary losses suffered by the plaintiff thereby.

The plaintiff claimed that the evidence justified the inference that the acts of the defendant company above referred to were wanton and malicious in their nature, and were not mere negligent oversights; and that, by reason of that fact, he was entitled to recover punitive or exemplary, as well as compensatory damages.

The defendant company admitted that it regularly issued directories about February 1 and August 1 of each year, and that a telephone subscriber, for business purposes, was entitled to have his name, address and occupation correctly listed in such directories. It produced evidence to show that it had directed the omission of the old 715 Market Street listing after it had received notice of the removal of Dr. Stein's office, and before the February, 1927, directory had been issued; and that both this, and the subsequent listing, as well as the omission in the August directory of that year, were mere errors on the part of the printer of the directory and in no sense intentional acts on its part. It did not deny, however, that, after the error had been made in the February directory, some of its employees may have expressed doubts as to its right to discontinue the 715 Market Street listing, without notice from Dr. Lewis but, also, produced evidence to show that immediately on being notified of this error it inaugurated a system to intercept and correctly transmit all calls made to Dr. Stein at that address and notified him to that effect.

The defendant company admitted that the evidence showed that it had negligently violated a duty owed by it to the plaintiff, and that the verdict must, therefore, be for the plaintiff for such compensatory damages as had been proved by him. It denied, however, that the facts justified any consideration by the jury of the question of punitive damages, or, even if they did, that such damages were properly pleaded.

The declaration contained three counts and alleged in the various counts not only the incorrect double listing in the February and August directories of 1927, but, also, the failure to list in the July directory of that year. In connection with these statements and immediately preceding the particular act or omission relied on, each count, among other things, alleged that the defendant "wrongfully, and with gross and wanton negligence and carelessness failed and neglected to furnish the said plaintiff as a subscriber to its telephone service as aforesaid with all of the facilities reasonably required for the efficient operation of said service, including a correct and proper listing in its directories of the name of the plaintiff as such subscriber, the serial number and location of the telephone furnished him, and a statement of his profession," etc.

After setting out the particular act or omission relied on, each count of the declaration with some slight variance also alleged: "That by reason of the gross and wanton negligence and carelessness of the said defendant * * * many persons desiring the professional services of the said plaintiff and who were unacquainted with the correct serial number of the said plaintiff's telephone or the plaintiff's correct address were thereby deterred, hindered and prevented from establishing telephonic communication with the said plaintiff * * * whereby the said plaintiff lost and was thereby unjustly and wrongfully deprived of the reasonable and proper charges, fees and emoluments which he would otherwise have received," etc.

Wherefore the said plaintiff says he is injured and has sustained damage in the sum of $ 10,000, etc.

Before the case was submitted to the jury, the plaintiff requested the court, among other things, to charge, in substance, as follows:

1. Telephone companies are engaged in a quasi public business and, therefore, are subject to the rules governing common carriers. That being true, they must extend to each subscriber equal facilities under equal conditions and cannot discriminate between them. State of Delaware ex rel. Postal Telegraph Co. v. Delaware & A. Telephone & Telegraph Co. (C. C.), 47 F. 633; Id. (C. C. A.), 50 F. 677; State v. Nebraska Tel. Co., 17 Neb. 126, 22 N.W. 237, 52 Am. Rep. 404; 37 Cyc., p. 1650; 26 R. C. L., p. 541. See, also, State ex rel. Bauer v. Sunset Telephone, etc., Co., 30 Wash. 676, 71 P. 198.

2. It was the duty of the defendant to furnish the plaintiff with all facilities reasonably required for the efficient operation of its telephone service, including a correct listing of his name, the number and location of his telephone, and a statement of his business or occupation in alphabetical directories issued by it. Masterson v. Chesapeake & Potomac Telephone Co., 52 App. D. C. 23, 299 F. 890; Jones on Telegraph & Telephone (2d Ed.), § 256, p. 250.

3. Punitive or vindictive damages may always be awarded if the negligent acts proved are accompanied by such circumstances of aggravation that they may be characterized as wanton acts. 8 R. C. L., § 133, p. 588; 2 Sutherland on Damages (3d Ed.), § 390.

In Pacelli v. People's R. Co., 5 Boyce 343, 350, 93 A. 560, 563, this court charged the jury that such damages could be awarded "only where the injury to the plaintiff is wanton or malicious."

While it is not alleged that the acts of the defendant were malicious, it is alleged that they were committed "wrongfully and with gross and wanton negligence and carelessness." Wilful acts and wanton acts are, generally speaking, regarded as equivalent acts. Pittsburgh, etc., Ry. Co. v. Ferrell, 39 Ind.App. 515, 78 N.E. 988, 80 N.E. 425; 4 Words and Phrases, Second Series, p. 1238.

Wantonness has been defined as an advertent or conscious failure to observe due care. Tinsley v. Western Union Telegraph Co., 72 S.C. 350, 51 S.E. 913; Bussey v. Charleston & W. C. Ry. Co., 75 S.C. 116, 55 S.E. 163.

It has, also, been said that wantonness or wilfulness is such gross want of care and regard for the rights of others, as show a disregard of consequences or willingness to inflict an injury on another. Cleveland, etc., R. Co. v. Ricker, 116 Ill.App. 428, 432.

If therefore, you believe that the defendant's negligence was accompanied by an advertent or conscious failure to observe due care, or by such gross lack of care for the rights of the plaintiff, as to show a disregard of consequences, you may award the plaintiff, in addition to the actual loss of earnings proved, such additional or punitive damages as you may deem proper. Such damages are...