Cumberland Telegraph & Telephone Co. v. Hobart

• Decision Date: 10 December 1906
• Docket Number: 12,332
• Court: Mississippi Supreme Court
• Parties: CUMBERLAND TELEGRAPH AND TELEPHONE COMPANY v. J. H. HOBART

42 So. 349

89 Miss. 252

CUMBERLAND TELEGRAPH AND TELEPHONE COMPANY v. J. H. HOBART

No. 12,332

Supreme Court of Mississippi

December 10, 1906

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Hobart the appellee, was plaintiff in the court below; the telephone company, the appellant, was defendant there. From a judgment in plaintiff's favor the defendant appealed to the supreme court.

Hobart sued the Cumberland Telephone and Telegraph Company for damages resulting from its discontinuance to him of telephone service, plaintiff charging that the defendant wrongfully denied him the right of having a telephone in his dwelling house; that although by inadvertence he had been temporarily delinquent in paying rent for the telephone, he had thereafter tendered appellant company the requisite sum for resumption of services, but defendant persisted in its denial of plaintiff's right. The chief defense of the company was based on the fact that there was due by appellee several months' rent for a telephone in a store belonging to Mrs Hobart, wife of appellee, under a written contract which while in her name, was actually made with the appellee; and defendant claimed that until payment of this amount it was not obligated to give plaintiff a telephone in his residence. The jury found for plaintiff, awarding him $ 150. Other facts are stated in the opinion of the court.

Affirmed.

Smith, Hirsh & Landau, for appellant.

The court erred in refusing to admit testimony to show that the contract for the telephone in the store, signed in the name of Mrs. Hobart, was taken by mistake to be signed by the plaintiff; for a mistake in respect to a contract destroys the assent of the party making such mistake, and renders the contract voidable by him. And this was a mistake which prevented assent of parties. To create a contract it is essential that both of the parties should agree on the same thing in the same sense. 20 Am. & Eng. Ency. Law, 811. If the testimony of the manager of the appellant company was true, then no contract had ever been made with Mrs. Hobart, but it was with her husband, the appellee; for the manager thought he was making contract with the husband, and such understanding was fortified by subsequent conversation with appellee wherein he said the contract for the store was all right.

After appellee became in default for the June, 1905, bill for his residence telephone, the appellant had a right to refuse to continue telephone connection with his residence until both the residence and the store bills were paid. It would be unreasonable and a hardship to compel appellant to reinstate telephone service with plaintiff's residence while the store telephone bill remained unpaid.

The case of Burke v. Water Valley, 87 Miss. 732 (40 So. 821), cited by appellee, does not decide the question here involved, for the appellant did not cut off the telephone service from appellee's home because of failure to pay the store bill, but because of failure by appellee to pay the residence bill for June. Appellee never denied the correctness of the store telephone bill. He merely sought to repudiate the payment of a just bill because the manager of the appellant company, through mistake, accepted a contract signed by the wife of appellee, when he intended to accept a contract with the appellee himself, and the manager did not discover the mistake until this suit was instituted. Nor is Wood v. City of Auburn, 29 L. R. A., 376, cited by appellee, in point. That was a case where the city of Auburn sought to "summarily deprive Wood of water, an instant and constant necessity, in order to coerce him into a surrender of his position of defense against an old bill. "

While public service corporations are justly subject to heavy and onerous duties, which should be strictly enforced for public policy, yet this case is one where affirmance would result in putting a premium on dishonesty.

Moreover, the verdict was excessive, for the utmost that appellee should have recovered in any instance was $ 20, or thereabouts, paid out to messengers during the time the telephone service was refused. All other items of expense claimed, such as arising at night to go to a neighbor's home to answer long distance calls, should have been ruled out. A party cannot exaggerate and increase his damages when reasonable effort on his part would have operated to decrease them. If through negligence or wilfulness he allows damages to be unnecessarily enhanced, the increased loss must fall upon him. Vicksburg & Meridian Railroad Company v. Ragsdale, 49 Miss. 459.

Bryson & Dabney, for appellee.

Putting this case most favorably for the appellant company, did it have the right to refuse appellee service in order to coerce him into paying a bill he owed for another telephone installed in another building, under a different contract? Has a public service corporation authority to enforce collection of past due bills in its favor by refusing service in the future? So far as we can ascertain, such authority has never been asserted by hotels, railroad companies or other public servants, except telephone, gas and water companies; and in every instance where the matter has been adjudicated the courts have held that no such authority exists. The case of Gaslight Company v. Colliday, 25 Md., 1, is in point. There the gas company refused to furnish gas to a consumer at one place of business because he owed a bill for gas furnished at other premises formerly used by him. It was held that the company had no right to enforce collection of past due bills that way. The cases of Lloyd v. Washington Gas Light Company, 1 Mackey (D. C.), 331, and New Orleans Gas Light Company v. Paulding, 12 Rob. (La.), 378, are to the same effect. In the case of Wood v. City of Auburn, 87 Me., 287 (29 L. R. A., 377; 32 A. 908), which appears to be the leading case on the subject, an injunction was sustained restraining a water company from cutting off their water supply from consumers in an attempt to coerce payment of a disputed bill. Appellant, as a public servant, was bound to serve appellee on application and compliance with reasonable rules. Jackson Electric Railroad Company v. Lowry, 79 Miss. 431 (30 So. 634); Charleston Natural Gas Company v. Lowe, 52 W. Va., 671; Coy v. Indianapolis, 36 L. R. A., 535. And failing in such duty, appellant became liable to the appellee. McDonald v. Snelling, 14 Allen, 200; Hoehle v. Alleghany Heating Company, 5 Pa. Sup. Ct., 21.

Our investigations have shown us a few cases in Pennsylvania and Georgia where the courts have held that public servants might discontinue service until past due accounts arising from other contracts in regard to separate matters should be settled, but in every case decision was based solely upon statute.

From the authorities above set forth we submit that it was immaterial whether the contract for the telephone in the store was made by Hobart, appellee, or his wife, and whether the $ 3.10 item was due by him or her. When appellee tendered payment for future services the company was bound to render the service, regardless of what debt he or his wife may have owned for past due accounts, and whether such indebtedness was because of the telephone in his house or some other place.

The only question at issue is the reasonableness of the rule regarding payment of past due accounts as a prerequisite to reinstatement of service which had been discontinued. We think this right of action for such refusal is clearly sustained by the decision of this court in Burke v. Water Valley, supra, 87 Miss. 732 (40 So. 821), wherein WHITFIELD, C. J., stated that if gas is supplied to the owner of different houses, under separate contracts, failure to pay the gas bill on one house does not authorize the cutting off of the gas from the other.

As to measure of damages, we content ourselves by merely citing the cases of McDonald v. Snelling, 14 Allen, 290 (quoted in Sutherland on Damages [3d ed.], sec. 675); Shepard v. Milwaukee Gas Company, 15 Wis., 318 (82 Am. Dec., 681), and Ives v. Humphreys, 1 E. D. Smith (N. Y.), 201. Plaintiff was entitled to, and did, recover damages for inconvenience and annoyance as well as for repayment of expenditures actually made by him; and the ascertainment of all such was properly for the jury.

OPINION

MAYES, J.

Hobart sued the Cumberland Telegraph and Telephone Company for the sum of $ 2,000 damages for wrongfully cutting out his telephone. The facts in the case are as follows: Hobart resided about a mile and a half from Vicksburg, on what is known as the "Warrenton Road." He had entered into a contract for a telephone to be put into his residence some years previous to the date at which this suit was brought and subsequently, his wife having a store, he saw the manager of the telephone company, and asked him to place a telephone in this store, which the company did. At the time the company's servants went out to place the telephone in the storehouse of his wife, Hobart himself was not present, and the telephone company, presenting a contract to be signed, the clerk in the store signed it in the name of Mrs. Hobart, so that the telephone company had a contract with Hobart for the telephone in his residence, and a contract with Mrs. Hobart, signed for her by the clerk, for the telephone in the store. It is stated in the testimony that the telephone company believed that the contract was signed by Hobart, he having spoken to the company about it, and that the charge for rent of the telephone in the store was placed on the books to Hobart, though the written contract was in the name of his wife, so far as the store was concerned. About a month after the telephone had been placed in the store, Mrs. Hobart sold...