Riaboff v. Pacific Telephone & Telegraph Co.

GRIFFIN, J., and FRITZ, J. (Memorandum Opinion).

In this action a judgment in the sum of $253.55 was awarded plaintiff by reason of the alleged negligence of the defendant Pacific Telephone & Telegraph Co. in erroneously spelling the name of the plaintiff in its telephone directory. Defendant does not deny the error but contends that by reason of its rule limiting liability for such error and the contract entered into for the service to plaintiff, the judgment should not be greater than $52,15.

Respondent contends that defendant is a common carrier and therefore comes within the provisions of section 2174 of the Civil Code, which provides that “the obligations of a common carrier cannot be limited by general notice on his part, but may be limited by special contract ’ ’. This may be true, although we do not so decide, to a limited extent. In this state there is a total absence of authority on the point but if it be true, defendant is a common carrier only of messages which are entrusted to- it for transmission and delivery. (Sec. 2168, Civ. Code.) It is upon this theory that the decision in

Parks

v.

Alta California Tel. Co.

(no longer authority in this state) rests (see 13 Cal. 422, p. 424 [73 Am. Dec. 589]), but as to the principal business of the defendant—the furnishing of facilities by which one person transmits to an

*Supp. 777

other messages by word of mouth, the great weight of opinion is that defendant is not a common carrier.

“The weight of authority is almost unanimous that telegraph and telephone companies, under the common law, are not common carriers.” (Jones, Telegraph and Telephone Companies, 2d ed., pp. 24, 25, and numerous cases there cited.)

The appellant is governed by and is required under the Public Utilities Act (1937 Deering’s Gen. Laws, Act 6386, par. 14) to file schedule of “rates, tolls x x x charges” etc. “to be collected or enforced, together with all rules, regulations, contracts, charges” etc., “which in any manner affect or relate to rates, tolls, x x x or service”. Concededly appellant complied with this requirement and among others was Rule and Regulation No. 14:

“The company is liable for errors or omissions in the listings of its subscribers in the telephone directory in an amount not in excess of the charge for that exchange service during the effective life of the directory in which the error or omission is made.”