City of Audubon v. Northwestern Bell Telephone Co.

• Decision Date: 11 August 1942
• Docket Number: 45955.
• Citation: 5 N.W.2d 5,232 Iowa 79
• Parties: CITY OF AUDUBON v. NORTHWESTERN BELL TELEPHONE CO.
• Court: Iowa Supreme Court

5 N.W.2d 5

232 Iowa 79

CITY OF AUDUBON v. NORTHWESTERN BELL TELEPHONE CO.

No. 45955.

Supreme Court of Iowa

August 11, 1942

Leonard L. Ryan, of Audubon, for appellant.

Parrish Guthrie, Colflesh & O'Brien, of Des Moines, and White & Mantz, of Audubon, for appellee.

SAGER Justice.

Since this case turns on a question of fact, we find it neither necessary nor desirable to enter into a detailed narration of the testimony. The years that have elapsed since appellee's predecessors in interest ventured into the then new field of the telephone business have dimmed the recollection of the witnesses upon whom the trial court was compelled to rely. This doubtless accounts for the seeming contradiction in the testimony of witnesses who could have no motive to falsify. This controversy has its roots nearly half a century back. At that time the telephone business in the territory with which we are concerned was a new and comparatively untried vehicle of communication. The terms "exchange," "system" and "telephone line" had not the definite meaning which they now convey to the public. This, too, may in part account for the differences in the testimony of the witnesses. One may have been testifying that no "telephone exchange" existed in Audubon on October 1, 1897, because of his lack of knowledge of a central plant through which messages are cleared; another may have thought that no "telephone system" existed because the simple beginnings made by Hocker had not attracted public attention so, too, the few subscribers to the venture in its beginnings may not have appeared to some to have taken on the quality of a "telephone line."

Be that as it may, there was direct and positive testimony supported by all the indicia of credibility that Hocker did have telephones in operation in Audubon before October 1, 1897. This appears in the testimony of one Swaney who in August, 1907, went to Audubon to talk to said Hocker, superintendent of schools, about going away to school, and who worked on the telephone line before October 1, 1897. One Kelly, then employee of a competing telephone company and familiar with the telephone business in that territory, was emphatic in his testimony that Hocker had at least four subscribers before October 1 1897. In a deposition taken on April 3, 1931, Hocker, who started the telephone system which now belongs to appellee, testified that the telephone property and exchange had been in operation about 34 years.

As against this is the testimony of one Arnold who testified "not from personal knowledge" but from "receipts and papers from the telephone company." In answer to an inquiry as to when the exchange commenced to furnish service, he answered: "Can't just recall, but I know it was in the early part of 1898."

Bilharz, who fixed the time "this exchange had been in operation" [232 Iowa 81] at 33 years prior to 1931, based his statement on the fact that Hocker had a charge account at Bilharz's store on which he was given credit for telephone service for January and February, 1898.

The testimony of Griffith, one time publisher of the Audubon Republican, is perhaps the most persuasive testimony produced by appellant, if it be competent. The newspaper, under date of September 9, 1937, carried the following: "Professor Hocker is soliciting the businessmen here with the expection (sic) of putting in a telephone system."

When asked whether or not Hocker on the date last mentioned had constructed a telephone system in the city, Griffith answered: "I don't think there was any telephones at that time."

The same newspaper, under date of November 11, 1897, carried this: "The poles for a new system of telephones which Professor Hocker is putting in the city. Men are now working putting on the arms. Work will proceed as fast as possible."

On cross-examination, Griffith said: "I went into the drug store (in Audubon) in 1898. There was no telephone there when I went in. It was put in soon after I went into the drug store. There was no general telephone exchange before that. There was a private telephone line here in town. There was no exchange established like there is now. That is what I refer to as being no 'phones in."

And further on cross-examination, this:

"Q. Do you know whether or not Professor Hocker had a telephone in his home before October 1, 1897? A. No, I don't.

"Q. Would you say he didn't? A. I don't know anything about it."

These newspapers items were received over objections upon which the trial court did not rule and we do not find it necessary to discuss them now. The witness admitted that he did not collect the items and had no independent recollection on the subject.

Doctor Childs, another witness for appellant, who thought the...