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J. Meyer & Co. v. Ill. Bell Telephone Co.

OPINION FILED SEPTEMBER 4, 1980.

J. MEYER AND COMPANY, INC., ET AL., PLAINTIFFS-APPELLANTS,

v.

ILLINOIS BELL TELEPHONE COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Plaintiffs, J. Meyer and Company, Inc., and Illinois Briar Pipe and Sundry Company, Inc., appeal from orders of the Circuit Court of Lake County which dismissed their amended complaint against defendant Illinois Bell Telephone Company for failure to state a cause of action and denied leave to file a second amended complaint.

Plaintiffs are owners of a warehouse which was burglarized on May 22 or 23, 1976, after they had an alarm system installed on the premises for protection of the warehouse. The alarm system was designed to transmit alarm signals from the warehouse to the local police department over defendant's telephone wires and was connected to defendant's equipment in a junction box located on a telephone pole near the warehouse. The unknown burglars circumvented the alarm system by disconnecting the alarm wires to the junction box and then proceeded with the theft of plaintiffs' property from the warehouse. Plaintiffs seek the recovery of $500,000 from Illinois Bell for damages sustained as a result of the theft.

Plaintiffs' original complaint was voluntarily dismissed. Their amended complaint alleged in count I that Illinois Bell was negligent in placing an unlocked junction box in an easily accessible location and in using identifiable alarm system wires which were distinct in color and voltage from all other wires in the junction box. Count II alleged wilful and wanton misconduct in that Illinois Bell allegedly failed to allow burglar alarm specialists "access to the telephone equipment so as to insure the maintenance of the integrity of the burglar alarm system," and in that it allegedly knew of similar burglaries in other areas wherein the same modus operandi was employed. Count III alleged breach of contract by defendant.

The amended complaint was dismissed by the trial court for its failure to state a cause of action. The primary issue on this appeal is whether the defendant utility owed a duty to plaintiffs under the circumstances as alleged in the complaint. Defendant contends that any such duty must be based on "an official tariff rule, regulation, order or decision on file with the Illinois Commerce Commission" and that none of the provisions of the tariff filed with the Commission, pursuant to section 33 of the Public Utilities Act (Ill. Rev. Stat. 1975, ch. 111 2/3, par. 33) gives plaintiffs the cause of action sought in their complaint.

• 1 It has been established that the source of any duty of Illinois Bell, as a public utility, to its subscribers is only in the tariff as filed. (Sarelas v. Illinois Bell Telephone Co. (1963), 42 Ill. App.2d 372, 192 N.E.2d 451; and see Illinois Bell Telephone Co. v. Miner (1956), 11 Ill. App.2d 44, 136 N.E.2d 1.) Having examined the relevant tariff provisions in effect at the time of the installation of the alarm system, we find that they do not establish any duty of care owed by defendant to plaintiffs which could have been breached under the circumstances of this case.

• 2 The portion of the tariff describing Illinois Bell's duty in regard to customer-provided systems, as was plaintiffs' alarm system here, states in part:

"The facilities of the Company are not represented as adapted to the use of customer-provided equipment and systems, and where such equipment or system is connected to Company facilities the responsibility of the Company shall be limited to the furnishing of facilities suitable for exchange telecommunications service or telecommunications channel service and to the maintenance and operation of such facilities in a manner proper for the service furnished; subject to this responsibility the Company shall not be responsible for (1) the through transmission of signals generated by the customer-provided equipment or system, or for the quality of, or defects in, such transmission * * *." (Illinois Bell Telephone Company Tariff, Illinois Commerce Commission No. 5, pt. 1, § 10, par. 2.1.A.)

We agree with defendant that the plain language of this provision exculpates it from liability whether the non-functioning of the customer-provided burglar alarm system in this case is characterized as the result of a defect in signal transmission or, as plaintiffs prefer to describe it, defective installation.

• 3 The second amended complaint plaintiffs sought to file alleged, however, that Illinois Bell breached the following tariff provision:

"The Company is not liable for any defacement of or damage to the premises or property of a customer resulting from the existence of facilities furnished by the Company on the premises, or the installation or removal of such facilities, unless such defacement or damage is the result of the negligence of the Company." (Illinois Bell Telephone Company Tariff, Illinois Commerce Commission No. 5, pt. 1, § 5, par. 3.3.)

Construing the foregoing paragraph according to the ordinary meaning of its words (First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App.3d 131, 361 N.E.2d 832), we find it does not assist plaintiffs. It would be incongruous were this paragraph considered to impose liability where paragraph 2.1.A of the tariff clearly exculpates Illinois Bell from liability for the same conduct. Paragraph 3.3, at most, imposes liability upon Illinois Bell if the premises or property of a customer are negligently defaced or damaged by facilities of Illinois Bell which are situated on the customer's premises. It does not purport to impose liability for the failure of a signal to be transmitted through the defendant's system as urged by plaintiffs. The burglar alarm system in this case was furnished by plaintiffs, not Illinois Bell; and plaintiffs do not allege that the existence or installation of the junction box or telephone pole to which it was attached, both furnished by Illinois Bell, was either on plaintiffs' premises or caused damage to their property.

• 4 The proposed second amended complaint in this case further alleged Illinois Bell violated the following provision of section 32 of the Public Utilities Act:

"Every public utility shall furnish, provide and maintain such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees, and public and as shall be in all respects adequate, efficient, ...


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