Tom Lee, Inc. v. Pacific Telephone & Telegraph Co.

• Decision Date: 07 July 1936
• Citation: 154 Or. 272,59 P.2d 683
• Parties: TOM LEE, Inc., v. PACIFIC TELEPHONE & TELEGRAPH CO.
• Court: Oregon Supreme Court

59 P.2d 683

154 Or. 272

TOM LEE, Inc., v. PACIFIC TELEPHONE & TELEGRAPH CO.

Supreme Court of Oregon

July 7, 1936

Department 2.

Appeal from Circuit Court, Multnomah County; Robert Tucker, Judge.

Action by Tom Lee, Incorporated, against the Pacific Telephone &amp Telegraph Company. Judgment for defendant, and plaintiff appeals.

Reversed and remanded.

C. O. Fenlason, of Portland, for appellant.

David L. Davies, of Portland (Carey, Hart, Spencer & McCulloch, of Portland, on the brief), for respondent.

RAND Justice.

The plaintiff, Tom Lee, Inc., a corporation, brought this action against the Pacific Telephone & Telegraph Company to recover the damage it claims to have sustained because of an alleged error appearing in defendant's Portland telephone directory for April, 1933, and April, 1934. The defendant demurred to the plaintiff's amended complaint on the grounds: (1) That it failed to state a cause of action, and (2) that the court had no jurisdiction of the subject-matter of the action. The trial court sustained the demurrer upon the last ground and, upon plaintiff's refusal to plead further, entered judgment for the defendant. From this judgment, the plaintiff has appealed.

In substance, the complaint alleges that in July, 1932, Tom Lee who later organized the plaintiff corporation, rented certain floor space and established an automobile service and repair shop in a garage operated by one Tom Williams at 1604 S.W Eleventh avenue in the city of Portland, under the name of Tom Lee Buick Service, and, while there, was a subscriber of the defendant company and was assigned the telephone number Beacon 1013, although at the time his name was not listed in any telephone directory for the reason that no new directory was issued during that time.

Later and in February, 1933, Tom Lee moved to 377 Oak street, now 839 S.W. Oak street, and established his shop at that place, doing business first as Tom Lee Auto Service and, after the formation of the plaintiff corporation, as Tom Lee, Inc., Auto Repairs, and, while there, both he and his corporation were subscribers of the defendant company and were assigned the number Beacon 2444; that in April, 1933, and again in April, 1934, the defendant company issued a new telephone directory for the city of Portland in both of which Tom Lee and the plaintiff were properly listed, first as "Lee, Tom, Auto Service, 377 Oak, Beacon 2444," and later as "Lee, Tom, Inc., Auto Repairs, 839 S.W. Oak, Beacon 2444"; that prior to the issuance of each of said directories, the defendant company was informed of the fact that Tom Lee was not operating a shop at 1604 S.W. Eleventh avenue and was requested to omit from both of said directories any statement to that effect, and this the defendant promised and agreed to do, but failed to comply with said promise and did publish in each of said directories the following words: "Lee, Tom, Buick Service, 1604 S.W. 11th, Beacon 1013"; that, by reason of this double listing, one of which was erroneous, the plaintiff lost business which it would otherwise have obtained to its damage in the sum of $2,900.

The erroneous listing complained of in the complaint is not that the defendant company failed to properly list the plaintiff corporation as one of defendant's subscribers or to correctly state its name, telephone number, and business address, for the complaint admits that that was done, but that, in addition thereto, it erroneously published in its directories, after it had been notified and had agreed not to do so, the individual name of Tom Lee, the principal officer of the plaintiff corporation, and assigned to him a telephone number which he was not using and stated his place of business as at another service station which was then being operated by a competitor of plaintiff, to plaintiff's injury.

Defendant's counsel contend that the question of defendant's liability, under the facts alleged in the complaint, involves the question of discrimination and, therefore, that its determination in the first instance was within the exclusive jurisdiction of the Commissioner of Public Utilities of Oregon, and that, until a ruling had been made by him thereon, the trial court was without jurisdiction. The learned trial judge in the court below was of the same opinion as shown by the reasons given by him for his decision. We think that this conclusion cannot be sustained.

The question involved here is purely a question of law and involves no administrative discretion. It does not involve any rate, rule, or practice of the defendant company, and no provision of the utility law of this state is cited or can be cited to sustain the ruling. Referring to another section of the utility law of this state, this court said in Oregon-Washington R. & Nav. Co. v. McColloch, decided March 17, 1936 and reported in 55 P.2d 1133, 1141: "The language of section 62-126, conferring authority upon the public utilities commissioner to order reparation and to determine the amount thereof, is limited to those instances in which some administrative function or discretion is involved, and does not include cases in which the court has jurisdiction without prior finding or order by the commissioner as to the reasonableness of any rate, rule, or regulation. The commissioner's jurisdiction is limited. His authority must affirmatively appear from the law creating his office and defining his powers. Northern Pacific Railway Co. v. Public Service Commission (D. C.) 47 F. (2d) 778."

In that case, the court quoted from Great Northern Railway Co. v Merchants' Elevator Company, 259 U.S. 285, 42 S.Ct. 477, 479, 66 L.Ed. 943, where the same contention was made and, as here, was overruled. There the question was: Could the plaintiff recover from the Great Northern Railway and the Director General a sum of money, alleged to have been exacted in violation of the carrier's tariff, without a preliminary resort to the interstate commerce commission? In holding that such resort to the commission was not necessary, the court, among other things, said: "Whenever a rate, rule, or practice is attacked as unreasonable or as unjustly discriminatory, there must be preliminary resort to the Commission. Sometimes this is required because the function being exercised is in its nature administrative in contradistinction to judicial. But ordinarily the determining factor is not the character of the function, but the character of the controverted question and the nature of the enquiry necessary for its solution. To determine what rate, rule or practice shall be deemed reasonable for the future is a legislative or administrative function. To determine whether a shipper has in the past been wronged by the exaction of an unreasonable or discriminatory rate is a judicial function. Preliminary resort to the Commission is required alike in the two classes of cases. It is required because the enquiry is essentially one of fact and of discretion in technical matters; and uniformity can be secured only if its determination is left to the Commission. Moreover, that determination is reached ordinarily upon voluminous and conflicting evidence, for the adequate appreciation of which acquaintance with many intricate facts of transportation is indispensable, and such acquaintance is commonly to be found only in a body of experts. But what construction shall be given to a railroad tariff presents ordinarily a question of law which does not differ in character from those presented when the construction of any other document is in dispute." The court then, after discussing the case of Texas & Pacific Ry. Co. v. American Tie & Timber Co., 234 U.S. 138, 34 S.Ct. 885, 58 L.Ed. 1255, and Loomis v. Lehigh Valley R. R. Co., 240 U.S. 43, 36 S.Ct. 228, 60 L.Ed. 517, distinguished between the facts in those cases and those involved in the case under consideration by saying, as to the first case: "The only real question in the case was one of fact; and upon this question of fact 'the views of men engaged in the lumber and railroad business, as developed in the testimony' were in 'irreconcilable conflict.' 234 U.S. [138] at page 146, 34 S.Ct. 885, 888, 58 L.Ed. 1255. As that question, unlike one of construction, could not be settled ultimately by this court, preliminary resort to the Commission was necessary to insure uniformity." In discussing the Loomis Case, the court said: "There the question to be decided did not require the consideration of voluminous conflicting evidence; but it involved the exercise of administrative judgment. *** The controverted question was not how the tariff should be construed, but what character of equipment should be deemed reasonable." Then referring to the case under consideration, the court said: "Here no fact, evidential or ultimate, is in controversy, and there is no occasion for the exercise of administrative discretion. The task to be performed is to determine the meaning of words of the tariff which were used in their ordinary sense and to apply that meaning to the undisputed facts. That operation was solely one of construction; and preliminary resort to the Commission was, therefore, unnecessary." The court then cited a large number of cases in which the jurisdiction of the court was sustained without preliminary resort to the commission. The question involved was solely one of construction of a tariff, or otherwise a question of law and not one of administrative discretion. The court also cited a number of other cases where the court refused to take jurisdiction because there had not been preliminary resort; the question being either one of fact or calling for the exercise of administrative discretion, saying: "*** If in examining the cases referred to there is...