Gwynn v. Citizens' Tel. Co

• Decision Date: 23 July 1904
• Parties: GWYNN v. CITIZENS' TELEPHONE CO.
• Court: South Carolina Supreme Court

48 S.E. 460

69 S.C. 434

GWYNN

v.CITIZENS' TELEPHONE CO.

Supreme Court of South Carolina.

July 23, 1904.

TELEPHONE COMPANIES—COMMON CARRIERS— CONTRACTS — PUBLIC POLICY — REFUSAL TO FURNISH TELEPHONE CONNECTION—DAMAGES.

1. Telephone companies are common carriers.

2. In an action for failure of defendant, as a common carrier, to furnish plaintiff connection over its telephone system, damages arising to defendant out of breach of contract may be set up as a counterclaim under Code 1902, § 171.

3. A contract by a telephone company with a customer to put in a telephone on condition that the customer will not use another system is against public policy.

4. The grounds for objection to evidence must be stated when the testimony is offered.

5. Plaintiff sued a telephone company for vindictive damages for refusal to put in a telephone. There was evidence that its switch board and lines were so full that the additional wire could not be put on, and also that other applicants were refused for the same reason. Held, that such evidence, though not admissible as a defense, was competent in mitigation of damages.

6. In an action against a telephone company for failure to put in a telephone, an instruction that if the company intentionally does an act with intent to deprive a citizen of the right to use one of its phones after tender of pay therefor, such company is guilty of such willfulness and wantonness as will warrant a verdict against it for vindictive damages, is erroneous, as on the facts.

7. Punitive damages are allowable only when there is misconduct and malice, and a tort committed by mistake in the assertion of a supposed right, or without wrong intent, will not warrant exemplary damages.

Appeal from Common Pleas Circuit Court of Spartanburg County; Buchanan, Judge.

Action by J. B. Gwynn against the Citizens' Telephone Company. From judgment for plaintiff, defendant appeals. Reversed.

Simpson & Bomar, for appellant

Sanders & De Pass, for respondent

GARY, A. J. The complaint alleges that on or about the 8th day of February, 1900, the plaintiff applied to and demanded from the defendant the use of the Citizens' telephone in plaintiff's store in said city, and for proper connections with all of defendant's subscribers, but that the defendant negligently and willfully failed and refused plaintiff the use of said telephone unless plaintiff would consent to a prohibition against the joint use of the Bell telephone of the Southern Bell Telephone & Telegraph Company, which prohibition plaintiff refused to consent to; that plaintiff was thereby deprived of the use of said telephone, and was cut off from telephonic connection with many of his customers, who had said Citizens' phone only, thereby losing their custom, and was otherwise injured, to the great annoyance, trouble, loss, and damage of plaintiff in the sum of $2,000. The defendant denied the allegations of negligence and willfulness, and set up as a defense substantially the allegations which were also pleaded as a counterclaim. The defendant also alleged that at the time demand was made upon it to put in another telephone for the plaintiff its switchboard and lines were so crowded, and there were so many demands upon it, that it could not at that time have complied with plaintiff's demands, even upon the terms upon which the original agreement was made.

The counterclaim was as follows: "For further answer to the complaint herein, and as and for a counterclaim against the plaintiff, the defendant alleges that some time prior to February 8, 1900, the plaintiff, for value received, made and entered into a written contract with this defendant, whereby the plaintiff agreed, in consideration of the low rate charged for the use of defendant's telephone and telephone service, that he would for five years from the date of saidcontract take and use the telephone and the service of this defendant exclusively in his place of business, and would not during the time of the existence of said contract use any other telephone in connection therewith; that for a time the plaintiff complied with the terms of the said contract, but that shortly before the said 8th of February, 1900, the said plaintiff willfully, wantonly, and maliciously, and with the intention of causing injury to the defendant, rented and began the use of another telephone in his place of business, in violation of the terms of his said contract, and continued to rent and use the same, and willfully refused to comply with the terms of said contract—all of which tended to the disorganization of defendant's business, causing it great annoyance, inconvenience, and loss, and that because and by reason of the said acts and conduct of plaintiff this defendant suffered damage in the sum of $2,500, and for this sum defendant sets up a counterclaim herein."

The plaintiff moved to strike out the allegations of the answer on the ground that they were irrelevant and redundant, and interposed a demurrer to the counterclaim on the ground that it did not state facts sufficient to constitute a counterclaim. His honor the presiding judge ruled that the allegations set up as a defense should not be struck out, as they contained allegations properly to be considered by the jury in mitigation of damages. He sustained the demurrer to the counterclaim. The jury rendered a verdict in favor of the plaintiff for?400.

The defendant appealed upon the following exceptions:

"(1) In holding that the portions of defendant's answer referred to in the plaintiff's notice to strike them out did not constitute a defense in this action, in that the defendant was a common carrier, and was bound upon demand to furnish the plaintiff a telephone, and, having failed to do so, was liable for damages therefor; and that the previous failure of the plaintiff to keep his contract constituted no ground for the defendant's failure to furnish him a phone, and no ground in this action to defeat plaintiff's right to damages for such default of the defendant; when he should have held that the defendant, under the Constitution and laws of the state of South Carolina, was not and is not a common carrier; and that it had the right, if plaintiff had failed to keep his contract with the defendant, to refuse further to furnish him one of its telephones.

"(2) In holding that the portion of defendant's answer referred to in the plaintiff's demurrer thereto did not constitute a cause of action as a counterclaim against the plaintiff, and in sustaining the demurrer to that portion of the answer, (a) If the plaintiff had previously made a contract with the defendant, and he had broken his contract, the defendant had a right of action against him for damages therefor, (b) Having such right of action against the plaintiff, the defendant had a right to set it up as a counterclaim in this action, as such cause of action arose out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, and was connected with the subject of the plaintiff's action.

"(3) In holding that the plaintiff had the right to show by testimony that the defendant threatened to take the telephone out of plaintiff's residence, when there was no allegation in the complaint to which this testimony was responsive, and in not sustaining the defendant's objection to the plaintiff's testimony with reference thereto.

"(4) In holding that the defendant did not have the right to show by the evidence, in justification of its contract with the plaintiff and others for the exclusive use of its telephones, the kind and character of the competition it then had with the Bell Telephone Company, and the financial strength of said company; and in sustaining the plaintiff's objection to the testimony of H. B. Carlisle, one of the directors of the defendant company, with reference to this matter.

"(5) In holding that the defendant did not have the right to show by testimony, in support of the allegation in its answer that it did not have the means to supply telephones to the plaintiff and others then desirous of using them, that other persons besides the plaintiff were unable to get instruments from the defendant at that time for that reason, and in sustaining the plaintiff's objection to the testimony of J. R. Bain tending to show these facts.

"(6) In not sustaining the defendant's motion for a nonsuit on the grounds upon which it was based, to wit: (a) That, so far as compensatory damages were concerned, there was no evidence tending to show that the plaintiff had suffered any damage or loss whatsoever in the matters complained of in the complaint, (b) That, so far as vindictive damages were concerned, there was no evidence tending to show that the defendant had been guilty of any malicious, willful, or wanton conduct in refusing the use of one of its telephones to the plaintiff. For these reasons the defendant insisted upon its motion for a nonsuit, and insists...