Cavers v. Home Tel. & Tel. Co. of Spokane

• Decision Date: 08 October 1921
• Docket Number: 16421.
• Citation: 117 Wash. 299,201 P. 20
• Court: Washington Supreme Court
• Parties: CAVERS v. HOME TELEPHONE & TELEGRAPH CO. OF SPOKANE.

201 P. 20

117 Wash. 299

CAVERS v. HOME TELEPHONE & TELEGRAPH CO. OF SPOKANE.

No. 16421.

Supreme Court of Washington

October 8, 1921

Department 2.

Appeal from Superior Court, Spokane County; R. H. Back, Judge.

Action by Francis G. Cavers against the Home Telephone & Telegraph Company of Spokane. Judgment of dismissal, and plaintiff appeals. Affirmed.

Fred B. Morrill, of Spokane, for appellant.

Post Russell & Higgins, of Spokane, for respondent.

MAIN J.

The plaintiff brought this action upon 28 assigned claims seeking to recover what was alleged to be an overcharge for telephone service in the city of Spokane. After the issues were framed, the cause came on for trial before the court and a jury. At the conclusion of the plaintiff's evidence the defendant challenged the sufficiency thereof, and moved the court for a judgment in its behalf. This motion was sustained, and a judgment entered dismissing the action, from which the plaintiff appeals.

The respondent, the Home Telephone & Telegraph Company, is engaged in the business of operating a telephone exchange in the city of Spokane. Early in the year 1915 it acquired property of the Pacific Telephone & Telegraph Company, which prior to that time, had operated an exchange in the same city. The franchise ordinance under which the respondent operated provided for a telephone charge for residence telephones of $2 per month. After the respondent had taken over the property of the Pacific Telephone & Telegraph Company, it filed with the Public Service Commission a schedule of rates, and thereafter charged for services in accordance with the rates so filed. The Public Service Commission did not enter an order approving the rates, and in State ex rel. Elbertsen v. Home Telephone & Telegraph Co., 102 Wash. 196, 175 P. 899, it was held that, in the absence of some affirmative action on the part of the commission, the franchise rate was not modified. After this decision was made the appellant took assignments of the claims of the individual subscribers for telephone service, and sought to recover the overcharge which had been paid. The appellant claimed the right to recover because under the rules and course of business established by the respondent telephone service would not have been rendered if the parties seeking the same had declined to pay the sums demanded, and that this amounted to payment under compulsion or duress. There is no evidence of the payments having been made on account of mistake of fact or fraud. If the appellant is entitled to go to the jury upon a question of fact, it is by reason alone that the payments were made in excess of the legal rate, and that under the rules of the course of business established by the respondent the service would not have been rendered had the payments not been made. The payments were not made under protest. The appellant relies upon a line of cases which hold that, where excess charges are exacted, and if not paid loss or destruction of profitable business will result, this is sufficient compulsion, and will sustain an action to recover back the excess, even though not paid under a mistake of fact or fraud. Pingree v. Mutual Gas Co., 107 Mich. 156 65 N.W. 6; Heiserman v. Burlington, C. R. & M. Railway Co., 63 Iowa, 732, 18 N.W. 903; Swift Co. v. United States, 111 U.S. 22, 4 S.Ct. 244, 28 L.Ed. 341; Robertson v. Frank Bros. Co., 132 U.S. 17, 10 S.Ct. 5, 33 L.Ed. 236; California Adjustment Co. v. Atchison, T. & S. F. Railway Co., 179 Cal. 140, 175 P. 682, 3 A. L. R. 274. Those are all cases wherein payments were made under the exigencies of business which would sustain loss or destruction if not...