Dallas Telephone Co. v. Oak Cliff Transfer & Storage Co.

(after stating the facts as above). The court's charge on the measure of damages authorized the jury, in estimating the compensation allowable to appellees, to "take into consideration inconvenience, or annoyance, if any, which the plaintiff may have suffered, as well as loss of business." Therefore the plaintiff was permitted to recover accordingly for "inconvenience or annoyance" suffered, in addition to the pecuniary loss sustained in business ways, in consequence of the alleged wrongful partial breach of the contract of telephone service. The charge has the effect either to allow a double recovery for pecuniary loss, or to allow damages both for pecuniary loss in business and vexation of mind. Either construction of the charge would render it legally improper to submit to the jury in the case. No damage or loss was shown except pecuniary loss in business. The "inconvenience or annoyance" consisted of mental perturbation or vexation, and not as a sequence of harmful effects. Such mental distress, as here, is not an element of damages legally recoverable generally in cases of this character, and especially so in a partnership capacity.

Appellant further insists that there is no sufficient proof of loss of profits to support a recovery therefor, and that the undisputed evidence shows the appellees were in arrears for telephone service, entitling the appellant to suspend service over the telephone. The proof offered by the appellees would be regarded as too uncertain and conjectural to support a claim for loss of profits, except for the one fact appearing that "I know I lost a $100 job on Haines street." As respects the appellant's other contention, the evidence does affirmatively show that the appellees were in arrears for the monthly charge for the telephone service, and that it was not paid before the day of discontinuance of the service. The evidence is not capable of any other reasonable conclusion than that appellees actually and admittedly owed $9.50 for the monthly rental charge of March, 1922, and that, although demanded, it was not paid until July 23, 1922, after the telephone was discontinued. More extended comment on the evidence is unnecessary. A verdict to the contrary could not, in fact, be sustained. In this conclusion there was no wrongful breach of contract on appellant's part, since it had the right to discontinue the service for the nonpayment of the charges, which were just and correct. Withers v. Fort Worth Gas Co. (Tex.Civ.App.) 238 S.W. 324. And there was no waiver, or plea of waiver, of the right to discontinue the service.

Accordingly, the judgment of the court is reversed, and judgment is here rendered in favor of appellant, with all costs incurred in both of the trial courts and by reason of this appeal.