Godwin v. Carolina Tel. & Tel. Co

• Decision Date: 18 October 1904
• Citation: 136 N.C. 258,48 S.E. 636
• Court: North Carolina Supreme Court
• Parties: GODWIN v. CAROLINA TELEPHONE & TELEGRAPH CO.

48 S.E. 636

136 N.C. 258

GODWIN

v.CAROLINA TELEPHONE & TELEGRAPH CO.

Supreme Court of North Carolina.

Oct. 18, 1904.

telephones—installation—mandamus— prostitute as relator.

1.Under the direct provisions of Laws 1901, p. 854, c. 610, amending Code, § 258, when a corporation is a party the verification of any pleading may be made by a managing or local agent thereof, as well as an officer.

¶ 1.SeeCorporations, vol. 12, Cent. Dig. §§ 2018, 2050.

2.Relator is not entitled to mandamus against a telephone company to compel the installation of a telephone where she admits being a prostitute and keeper of a bawdy house in which she desires the telephone installed.

Appeal from Superior Court, Lenoir County; Ferguson, Judge.

Mandamus by Jane Godwin against the Carolina Telephone & Telegraph Company.Judgment for defendant, and plaintiff appeals.Affirmed.

Dortch & Barham and Loftin, Mitchell & Varser, for appellant.

Wooten & Wooten, for appellee.

CLARK, C. J.The exception to the verification of the amendment to the answer is without merit.Since Phifer v. Ins. Co., 123 N. C. 410, 31 S. E. 716, the General Assembly has amended section 258 of the Code by providing (Laws 1901, p. 854, c. 610) that when a corporation is a party the verification of any pleading may be made by a "managing or local agent thereof" as well as by an officer, who alone, formerly, was authorized to make verification in such cases.

This is an application for a mandamus to compelthe defendant to put a telephone, with necessary fixtures and appliances, in the dwelling house of the plaintiff in the town of Kinston, and admit her to all the privileges accorded to other subscribers to the telephone exchange operated by the defendant in said town.It was admitted by the plaintiff that "she is a prostitute, and keeps a bawdy house within the corporate limits of the town of Kinston, and desires to have said telephone put in said bawdy house."The court being of opinion that the plaintiff was not entitled to a mandamus for such purpose, the plaintiff took a nonsuit and appealed.

There was no error.A mandamus lies to compel a telephone company to plaee telephones and furnish telephonic facilities, with out discrimination, for those who will pay for the same and abide the reasonable regulations of the company.This is well settled State v. Nebraska Telephone Co.(Neb.)22 N. W. 237, 52 Am. Rep. 404;27 Am. & Eng. Enc. (2d Ed.) 1022;19 Am. & Eng. Enc. (2d Ed.) 877;Joyce on Electric Law, § 1036; and numerous cases cited by all these.In Telegraph Co. v. Telephone Co., 61 Vt 241, 17 Atl. 1071, 5 L. R. A. 161, 15 Am. St. Rep. 893, it is said: "A telephonic system is simply a system for the transmission of intelligence and news.It is, perhaps, in a limited sense, and yet in a strict sense, a common carrier.It must be equal in its dealings with all."That case cites many authorities, which are, indeed, uniform, that the telephone business, like all other services fixed with a public use, must be operated without discrimination, affording "equal rights to all, special privileges to none."Telephones "are public vehicles of intelligence, and they who own or control them can no more refuse to perform impartially the functions that they have assumed to discharge than a railway company, as a common carrier, can rightfully refuse to perform its duty to the public, " is said in Telephone Co. v. Telegraph Co., 66 Md. 399, at page 414, 7 Atl. 811, 59 Am. Rep. 167, which is another very instructive and well-reasoned case upon the same subject.Telephone companies are placed by our corporation act on the same footing, as to public uses, as railroads and telegraphs, and the corporation commission is authorized to regulate their charges and assess their property for taxation.But while it is true there can be no discrimination where the business is lawful, no one can be compelled, or is justified, to aid in unlawful undertakings.A telegraph company should refuse to send libelous or obscene messages, or...