Appeal
from Common Pleas Circuit Court of Spartanburg County
Buchanan, Judge.
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 said
contract 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
here that it was error for the circuit judge to refuse it.
(7) In charging the jury that it was utterly immaterial, so
far as actual defenses or justification was concerned,
whether the plaintiff, Gwynn, had broken his contract or not,
as such conduct upon his part was no justification for the
refusal of the defendant to further furnish one of its
telephones, but that the defendant was a common carrier, and
was bound to furnish such telephones, irrespective of
plaintiff's previous conduct; when we submit he should
have charged the jury that the defendant was not a common
carrier, and had the legal right to furnish its instruments
to or to withhold them from the plaintiff, or
any other persons, at its will
and pleasure. In this connection defendant alleges error: (a)
In charging plaintiff's first request to charge 'that
a telephone company incorporated under the laws of this state
for the purpose of transmitting intelligence for the use of
the public is a common carrier of intelligence.' (b) And
in charging his second request to charge 'that a common
carrier of
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