Appeal from the Circuit Court of Lake county; the Hon. BERNARD
M. DECKER, Judge, presiding. Reversed and remanded.
JUSTICE CROW DELIVERED THE OPINION OF THE COURT.
The plaintiffs, Illinois Bell Telephone Company, and Armen Nazareth Babagian, doing business as Nazareth Rug Cleaners, on October 6, 1955, filed a verified complaint in the Circuit Court of Lake county seeking an injunction against the defendants, Willard F. Miner, doing business as Willard Miner Company, and Leslie G. Heyden, doing business as the Woodstock Plastics Company, to enjoin them from manufacturing and distributing plastic covers to telephone subscribers to be placed on telephone directories.
The Court, upon motion of the plaintiff company, certain affidavits being also filed contemporaneously with the complaint, issued at the outset a temporary injunction restraining the defendants from further manufacturing or distributing the covers to the telephone company's subscribers. The defendants thereafter filed motions to dismiss the complaint and to quash the temporary injunction. The Court, after hearing arguments, entered an order dismissing the complaint for failure to state a cause of action for an injunction and for being without equity, and dissolving the temporary injunction, and the telephone company has perfected an appeal from that order. The other plaintiff, Armen Babagian, has not joined in the appeal.
The reasons urged by the defendants in their motions as to why the complaint was defective and the temporary injunction should be dissolved, are:
1. The complaint fails to set forth a cause of action in that the Illinois Bell Telephone Company is not the owner of the directories involved and the company does not exercise absolute domain over them.
2. Paragraph 4 of the complaint sets forth certain rules and regulations of the telephone company which pertain only to the apparatus and equipment used in the actual transmission of telephone service (and not to telephone directories) and, in addition, sets forth an adequate remedy against violators.
3. Paragraph 5 of the complaint sets forth the regulations with reference to directories and there is no reference therein to any use or application of said directories for or to advertising or to covers.
4. The defendants have no contract or other dealings with the plaintiffs and are engaged in a lawful business which the plaintiffs are attempting to injure and have injured and damaged by this proceeding.
5. There is no showing in the complaint of any irreparable damage.
6. Paragraph 4 of the complaint sets forth an adequate remedy without resorting to law or equity if there is any violation (of the company's rules or regulations or tariff or subscribers' contracts) by the subscribers of the telephone company.
The first point of the defendants' motions is that the telephone company is not the owner of the directories involved and does not have exclusive domain over the directories. It is, however, alleged in the first paragraph of the complaint that the plaintiff company is a public utility, furnishing telephone service to subscribers in certain counties of Illinois and elsewhere in Illinois, and is qualified and licensed under the statutes of Illinois and the rules of the Illinois Commerce Commission. Then it is alleged in the third paragraph of the complaint: "In the course of its business, the telephone company furnishes its subscribers with equipment and facilities, including telephone directories, which are placed in the homes and offices of said subscribers, and which under the terms and provisions of the rules of the Illinois Commerce Commission and the contracts between the telephone company and its subscribers, remain the property of the telephone company at all times, as will hereinafter more fully appear."
Then paragraph four of the complaint sets forth some of the provisions of the company's tariff on file with the Illinois Commerce Commission and in effect at the times referred to in the complaint, relative to the equipment, instruments, and lines furnished by the telephone company and located on the subscriber's premises, to the effect that such shall be and remain the property of the company, and, further, that subscribers shall not use any mechanical apparatus or device in connection with the equipment or facilities furnished by the company without consent of the company, or permit attachment of advertising devices without approval of the company, and if any apparatus or device of any kind other than that furnished or approved by the company is attached or connected to the company's property, the company may remove the apparatus or device, or suspend, or terminate the service.
In paragraph five of the complaint, after referring to another provision of the company's tariff, in effect at the times referred to in the complaint, it is alleged that the same provides: "Directories regularly furnished to subscribers are the property of the telephone company, are loaned to subscribers only as an aid to the use of the telephone service, and are to be returned to the telephone company upon request or when new directories are issued. The telephone company shall have the right to make a charge for directories issued in replacement of directories lost, destroyed, defaced, or mutilated, while in the possession of the subscriber."
Reading those paragraphs 1, 3, 4 and 5 of the complaint together, there is a positive averment that the directories are the property of the telephone company. It is stated in California Fireproof Storage Co. v. Brundige, 199 Cal. 185, 248 P. 669, that: "A telephone directory is an essential instrumentality in connection with the peculiar service which a telephone company offers for the public benefit and convenience. It is as much so as is the telephone receiver itself, which would be practically useless for the receipt and transmission of messages without the accompaniment of such directories." A telephone directory is an essential feature of the service rendered by the telephone company: McTighe v. New England Tel. & Tel. Co., 216 F.2d 26 (C.A. 2nd 1954). We think it is reasonably common knowledge that a telephone company customarily simply furnishes, provides, or lends facilities for the use of its subscribers and does not make a sale or lease of the equipment, such is recognized in Southwestern Bell Tel. Co. v. Dialite Dial Co., 102 F. Supp. 872 (U.S.D.C., W.D., Okla. 1951) and the defendants suggest no reason and cite no authority as to why a telephone directory furnished for the use of the subscriber is or should be in this respect considered any different from other facilities it so furnishes for the use of its subscribers. The plaintiff refers to two unreported trial court decisions, one in Michigan, Michigan Bell Tel. Co. v. Wharram, Circuit Court, County of Oakland, In Chancery, November 16, 1949, and the other in Virginia, Lee Tel. Co. v. Walker, Corporation Court, Danville, February 27, 1954, copies of the opinions in which appear in the plaintiff's brief, and which are commented on by the defendants. The Michigan case involved covers for telephone directories and the defendants were enjoined from manufacturing and distributing the same; the Court held the directories were the property of the company, placing them in the ...