248 S.W. 658 | Tex. Comm'n App. | 1923
Ben H. Kelly brought this suit in the district court of Bexar county to recover of the Southwestern Bell Telephone Company $1,53? actual damages and $1,000 exemplary damages, alleged to be due him for failure of the telephone company to list his name in its directory issued June 1, 1920. The petition covers 16 pages of the transcript, and contains allegations too numerous to enumerate here. It has a great deal of irrelevant and unnecessary matter, and there is great difficulty in arriving at a knowledge of its true intent. However, giving to all of its ambiguous parts that fair and reasonable construction most favorable to it, we conclude that it was intended thereby to plead a cause of action based upon a failure to print plaintiff in error’s name in the official directory of the telephone company, as a patron and in the classified section; it being claimed that this was an important part of the usual contract for service and equipment made by him with the telephone company.
The defendant in error filed a general demurrer, together with 49 special exceptions, assailing every section and clause of the petition. The judgment of the trial court recites that the general demurrer and the 49 special exceptions were sustained'.' Plaintiff' in error refused to amend his petition, and the cause was dismissed. • Appeal was perfected to the Court of Civil Appeals for the Fourth District and the judgment of the lower court was affirmed. 236 S. W. 151.
On appeal plaintiff in error assigned only one error, as follows:
“The court erred in sustaining a general demurrer directed to appellant’s first amended original petition, and, upon appellant declining to amend his said petition, thereupon dismissing said suit, for the reason that appellant’s said petition was sufficient as against a general demurrer, in that the matters therein alleged set up a legal and valid cause of action against the defendant.”
The Honorable Court of Civil Appeals held that plaintiff in error had not complied with the rules in briefing his case, and declined to pass upon the assignment, except to examine the record for fundamental error. That court seems to have accepted the theory that the trial court first sustained the 49 special exceptions to the petition, and then sustained the general demurrer, and under this theory reached’this conclusion:
“The general claim of fundamental error to reverse a ruling sustaining a general demurrer to petition is not applicable when every phase of the petition is questioned by special exceptions, and passed on, and the ruling of the court sustaining [special exceptions] is not assigned as error.”
The writ of error was granted by the Supreme Court because of an .apparent conflict between this holding and certain cases hereinafter referred to.
We think the writ was properly granted. It must be presumed that the trial court proceeded according to the due order of practice and overruled the general demurrer before overruling the special exceptions. The judgment indicates that this was done. This being true—
“The fact that the special exceptions were sustained also does not give the case a different status than if the general demurrer alone had been sustained. It was utterly unnecessary to consider the petition with reference to special demurrers, when the court had already held that no cause of action was stated.” Reasoner v. Ry. Co., 109 Tex. 204, 203 S. W. 592; Bigham v. Port Arthur Channel Co., 100 Tex. 192, 97 S. W. 686, 13 L. R. A. (N. S.) 656; Everett v. Henry, 67 Tex. 405, 3 S. W. 566.
These cases are decisive of the matter.
In view of the holding in Land Co. v. McClelland Bros., 86 Tex. 192, 24 S. W. 504, we think the assignment of error as quoted above is sufficient. The Honorable Court of Civil Appeals was perhaps, correct in holding, with reference to the proposition and statement under this assignment, that the brief did not comply with the rulés. We have waived a determination of that and have given the petition a careful consideration, with a view of testing its sufficiency as against a general demurrer. After such careful consideration, we have concluded that the general demurrer was properly sustained.
Plaintiff in error absolutely fails to state a cause of action, unless it be for breach of the contract alleged to have been made with the telephone company May 11, 1920. While he alleges various details of the parol agreement, yet he attaches to the petition as a part thereof the application contract, and it is very evident that all negotiations were merged into this written contract and it represents the final agreement of the parties. Plaintiff in error makes no allegations that would permit parol proof to vary this written contract or that wo,uld authorize an enlargement of the same. The contract as evidenced by this application must be considered as'the basis for any cause of action which plaintiff in error has undertaken to establish.
The application referred to shows that plaintiff in error contracted for one business, measured-service desk telephone, at a monthly rate of $4, to be installed in his office; that in the classified section of the directory his name should appear as a “lawyer.” It also contains the following cause:
“In making this application the undersigned agrees to the rules and regulations of the telephone company as set forth in the exchange tariff, and to any general change or changes in the rules, regulations, tariffs or rates for the service furnished under this application. This application becomes a contract when accepted in writing by the telephone company.”
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 he presumed to be reasonable and necessary, unless the contrary is shown. The contracts of such a company must be construed in the light of its obligations to the general public and the duty it owes to its patrons generally.
The petition in this cause does -not allege the violation of any provision of the written agreement. It is not claimed that the telephone company failed to use due care or dispatch in supplying the service and equipment contracted for. It is not alleged that the rules and regulations of the company were unfair or unreasonable. It must be taken that the contract was performed in accordance with the .rules and regulations of the company. In the absence of allegations to the contrary, it will be presumed that the company installed the telephone and made the necessary connections as promptly as was consistent with the rules governing the operation of its system and the duty due by it to the public. The sole and only cause for complaint on the part of plaintiff in error is that the company failed to list his name as a subscriber and in the classified section when it published its directory June 1, 1920. The written contract contains no agreement to do this, and the parol agreement would not be admissible under the pleadings. On the contrary, it appears by the notations on the application, which, under the petition, are a part thereof, that such a requirement was wholly unreasonable; for it is shown that the work was not completed and no number was assigned to plaintiff in error until eight days after the directory was issued.' It was necessary for plaintiff in error to negative by proper allegations the presumption that the rules and regulations of the company justified thBuway and manner the service was performed, \nd the time required to perform it; and, hg-ving failed to do this, it clearly appears" ÍEat the petition shows no breach of duty imposed by the written contract on defendant in error.
We therefore hold that, the general demurrer was properly sustained, and recommend that the judgment of the Court of Civil Appeals be affirmed.
The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.
