Haber, Blum, Bloch Hat Co. v. Southern Bell Telephone & Telegraph Co.

Tuknek, J. 1. A special demurrer which is founded on the terms of a contract neither set out in the petition nor made in any way a part thereof will not be .considered. 2. Where a subscriber to a telephone exchange at one place desired to communicate with his regular counsel in another place, was refused the long-distance connection, contrary to an alleged contract, and avers that in consequence of such refusal he (the said subscriber) paid unnecessarily and unjusily a delinquent employee one hundred and seventy-five dollars to get rid of him and to recover from him certain property entrusted to him, and to avoid a threatened lawsuit, it not appearing that such absent counsel could have controlled such delinquent employee, such payment can not be recovered as actual or special damages. This view is reinforced, if it needs reinforcement, by the averment that this sum was unnecessarily paid. 3. Nor do we think that the refusal by a telephone company to a subscriber of a long-distance connection, without aggravating circumstances, would entitle a party to exemplary or punitive' damages. 4. While the breach of contract would entitle the party injured to nominal damages, at least (Civil Code, §3801), this principle of law does not apply in a case in which only actual and punitive damages are sued for, construing the pleadings most strongly against the pleader. Judgment affirmed. All the Justices concur.