Danaher v. Southwestern Telegraph & Telephone Co.

Decision Date03 February 1919
Docket Number88
Citation209 S.W. 74,137 Ark. 324
PartiesDANAHER v. THE SOUTHWESTERN TELEGRAPH & TELEPHONE CO.
CourtArkansas Supreme Court

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge reversed.

Judgment reversed and cause remanded.

T. S Buzbee, W. S. Danaher, M. Danaher and Palmer Danaher, for appellant.

The court erred in sustaining the demurrer and refusing a new trial. The law of this is settled and the statute is not unconstitutional. Arbitrary discrimination was proven and appellant had paid all dues for service and complied with all the rules and regulations. 94 Ark. 533; 102 Id. 547; 238 U.S. 482. The complaint stated a cause of action and this court has twice held that the statute is not unconstitutional. 93 Ark. 11. See also 64 Ark. 650; 7 Ark 405; Ib. 542; 10 Id. 186; 26 Id. 17; Ib. 133.

Walter J. Terry, for appellee; D. A. Frank, of counsel.

This court has said the statute was unconstitutional, the regulations being unreasonable. 102 Ark. 547; 45 P. 700. The law is settled and binds this court. 63 N.W. 953; 118 F. 557; 55 C. C. A. 323; 117 Ind. 26; 110 P. 226; 102 Id. 635; 73 N.E. 1098; 107 P. 699; 238 U.S. 1409 (Lawy. Ed.); 19 U.S. (Lawy. Ed.) 224. The statute is arbitrary, oppressive and unreasonable as held by this court and the U. S. Supreme Court. Supra. See also 52 U.S. (L. Ed.) 108; 123 Tenn. 318; 130 S.W. 1050; 141 Id. 845; 154 Id. 531. The question of indebtedness is immaterial as the statute is held to be unreasonable. The demurrer should be sustained and the cause dismissed.

OPINION

WOOD, J.

On May 30, 1908, the appellant sued the appellee alleging in substance; that the appellee operated a telephone exchange in the city of Little Rock for the purpose of supplying its residents with telephone connections and facilities; that she had been a subscriber for service by appellee for a number of years, and during which time she had a telephone in her residence connected with appellee's exchange; that the appellee had refused to allow appellant to use her telephone during the months of March, April, and May, notwithstanding the fact that appellant had actually paid the rental charges for the use of such phone for those months; that appellee discriminated against appellant and showed partiality to other subscribers over the appellant by permitting them to use the telephones at their residences and giving them connections through appellee's telephone exchange that they denied appellant; that other subscribers to appellee's exchange in Little Rock were permitted to use their telephones provided they paid to appellee on or before the fifteenth day of each month the rental price of $ 2.25 per month; that appellant offered to pay this amount to the appellee before the fifteenth day of April, but the appellee refused to accept and forced the appellant to pay the sum of $ 2.75 for rental, and notwithstanding that fact it refused to serve her at all during the month of April, 1908; that before the fifteenth day of May, 1908, she offered to pay appellee $ 2.25 as such rental for the use of her telephone but appellee refused to accept the amount and forced her to pay $ 2.75 for that month and then refused to give her service during the first eight days of that month, notwithstanding that she had paid a greater amount than was demanded of other subscribers.

Appellant alleged, that by virtue of the statutes of this State, it was the duty of appellee to furnish all applicants telephone connections, service, and facilities without discrimination or partiality, provided such applicants complied with appellee's reasonable rules and regulations, which appellant did.

The above are substantially the facts alleged in the appellant's original complaint and the amended complaint. In the original complaint she set up that the discrimination had lasted for forty days and had subjected the appellee to a penalty under the law of $ 100 a day, for which she prayed judgment. In her amended complaint she set up that appellee had discriminated against her twenty-three days, subjecting itself to an additional penalty of $ 2,300 for which she also prayed.

The appellee demurred, in short, to the allegations in the complaint and the amended complaint, which demurrer was sustained, and appellant duly prosecutes this appeal.

This is the third appeal in this case. At the first trial the court instructed the jury to return a verdict in favor of the telephone company and that judgment was reversed by this court. Danaher v. Southwestern Tel. & Tel. Co., 94 Ark. 533, 127 S.W. 963.

On the second trial judgment was rendered in favor of Mrs. Danaher, the appellant here, and that case was appealed and that judgment was affirmed. Southwestern Tel. & Tel. Co. v. Danaher, 102 Ark. 547, 144 S.W. 925.

Appellee appealed to the Supreme Court of the United States and that court reversed the judgment of this court. Southwestern Tel. & Tel. Co. v. Danaher, 238 U.S. 482.

Upon filing of the mandate of the Supreme Court of the United States in this court, this court rendered its judgment and remanded the case to the circuit court for a new trial. In the circuit court the cause was heard upon a demurrer to the complaint, which being overruled this appeal was duly prosecuted.

On the former trials of this cause on the merits, it developed that the controversy grew out of the refusal of the appellee to give appellant telephone service after the 30th of March, 1908, for the reason that the appellee claimed that appellant owed it for telephone service, theretofore rendered, which claim the appellant denied.

The law applicable to the facts on the former appeals was announced as follows: "A telephone company, being a public servant, can not refuse to serve any one of the public in that capacity in which it has undertaken to serve the public when such one offers to pay its rates and comply with its reasonable rules and regulations. It can not refuse to serve him until he pays a debt contracted for services rendered in the past. For the present services, it has a right to demand no more than the rate of charge fixed for such services. It transcended its duty to the public when it demanded more.

A tender of, or payment to the telephone company of its rate or charge for service or rent of telephone for any particular time and offer to comply with its reasonable rules and regulations would entitle the applicant to such service or rent. Should the telephone company incur a penalty by refusing to rent or render such service it could prevent the increase thereof by rendering or offering to render the applicants such service." See Danaher v. Southwestern Tel. & Tel. Co., supra; Southwestern Tel. & Tel. Co. v. Danaher, supra.

The defendant below, appellee here, in the above cases, offered to prove that appellee disconnected appellant's telephone because she had refused to pay for two months prior services; that appellant asked a discount of fifty cents on the arrears, which request the appellee refused to grant and appellant then refused to pay for the two months arrears preceding; that appellant had frequently been requested to pay the rentals for the two months that she was in arrears and that she knew that the telephone would be disconnected if the payment was not made; that the regulations requiring the payment of past rentals as a condition of present service had been in force for several years and had been applied to all delinquent patrons, without partiality or discrimination; that appellant was refused the discount and denied the use of the telephone only for the reason that she was delinquent in the payment of the rentals.

The above testimony offered on behalf of the appellee company, on the last of the former trials, the trial court excluded and the company excepted to the ruling.

Appellant had requested the court to give the following instruction: "If you find from the evidence that the defendant enforced against plaintiff the same rule and regulation that he enforced against all others in like situations with the plaintiff the verdict will be for the defendant."

The court refused the above prayer and instructed the jury instead that "if the defendant refused plaintiff services because she had not paid a debt contracted for past services that the verdict should be for the plaintiff." The appellee company duly excepted to the ruling of the court for giving and refusing instructions.

It was upon such a state of record that this court in Southwestern Tel. & Tel. Co. v. Danaher, 102 Ark. supra, affirmed the judgment of the lower court. On writ of error to the Supreme Court of the United States t...

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  • St. Louis Southwestern Ry. Co. v. Jackson
    • United States
    • Arkansas Supreme Court
    • March 3, 1969
    ...Ark. 609, 19 S.W. 13; United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43, 195 S.W. 392, 1 A.L.R. 1259; Danaher v. Southwestern Tel. & Tel. Co., 137 Ark. 324, 209 S.W. 74; Ft. Smith Lbr. Co. v. State of Arkansas, 138 Ark. 581, 211 S.W. 662; Stuart v. Barron, 148 Ark. 380, 230 S.W. 56......
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    ...Ark. 609, 19 S. W. 13; United States Annuity & Life Ins. Co. v. Peak, 129 Ark. 43, 195 S. W. 392, 1 A. L. R. 1259; Danaher v. S. W. Tel. & Tel. Co., 137 Ark. 324, 209 S. W. 74; Ft. Smith Lbr. Co. v. State of Arkansas, 138 Ark. 581, 211 S. W. 662; Stuart v. Barron, 148 Ark. 380, 230 S. W. 56......
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