Hamilton v. McKenna

• Decision Date: 10 April 1915
• Docket Number: 19,422,19,423
• Parties: S. B. HAMILTON, Appellant, v. F. J. MCKENNA, Appellee. J. F. RESSELL, Appellant, v. F. J. MCKENNA and ADDIE MCKENNA, Appellees
• Court: Kansas Supreme Court

147 P. 1126

95 Kan. 207

S. B. HAMILTON, Appellant, v. F. J. MCKENNA, Appellee.

J. F. RESSELL, Appellant, v. F. J. MCKENNA and ADDIE MCKENNA, Appellees

Nos. 19,422, 19,423

Supreme Court of Kansas

April 10, 1915

Decided. January, 1915.

Appeal from Anderson district court; CHARLES A. SMART, judge.

Judgment modified.

SYLLABUS

SYLLABUS BY THE COURT.

1. DAMAGES--Amount Involved Less than $ 100--Not Appealable. A pleading charged that the operator of a mutual telephone company refused the plaintiff, who was a member of the company, the services due a member unless he would pay an excessive and unauthorized charge, which refusal damaged the plaintiff in his business in the sum of one thousand dollars. It appeared, however, from all the allegations that the amount in controversy did not exceed one hundred dollars exclusive of costs. Held, that a cause of action was stated but not for an appealable amount.

2. DAMAGES--Duty to Mitigate Damages. The rule that one seeking to hold another for damages must use reasonable efforts to mitigate such damages--followed.

3. SLANDER--Words Not Slanderous. A statement made to the plaintiff in the presence of others, "All I want you to do is to pay your honest debts," held not slanderous.

4. SLANDER--Action Appealable. An action for damages for slander is appealable regardless of the sum claimed.

R. H. Bennett, R. E. Cullison, both of Iola, and C. F. Richardson, of Garnett, for the appellants.

Charles W. Garrison, Manford Schoonover, and Noah L. Bowman, all of Garnett, for the appellees.

West J. Dawson, J., West, J., Marshall, J., dissent.

OPINION

WEST, J.

The only question presented by this appeal is whether or not the amended petition (both cases being treated as one) states a cause of action, the plaintiff having appealed from an order sustaining a demurrer thereto.

In substance the pleading alleges that in Colony there was a mutual telephone company operating as a joint-stock concern for the purpose of rendering service to any one in the vicinity who would purchase stock therein. The plaintiff was a stockholder, but upon removing temporarily from Colony he transferred his stock to another company. The defendant owned and operated an independent system and maintained a switchboard and had connected with this system a number of patrons using his telephones; that the defendant proposed to take over the switchboard of the mutual company and all their business and perform all their services himself, leaving the mutual company to conduct the business pertaining to this organization and the extension of its system and the control of its relation with its own members; that this proposition was accepted and the switchboard was removed to the defendant's place of business, after which he undertook to perform towards the members of the mutual company all the obligations of that company. The mutual company undertook to furnish its members telephone service at cost, each member to contribute twenty-five cents a month, the price regularly charged his patrons by the defendant being one dollar a month; that upon returning to Colony the plaintiff tried to purchase stock in the mutual company but was prevented by intimidation and other improper influence of the defendant upon the officers of the company and was thereby rendered unable to procure telephone services for his home or office unless he accepted the telephone of the defendant and paid the price demanded by him; that prior to January, 1912, he installed one of the defendant's instruments in his house and paid one dollar a month therefor; that he had become an owner of certain stock in the mutual company, entitled to all the rights of a member; that he so advised the defendant and demanded that connection be made with his office to operate his office and home telephones as mutual telephones, which the defendant refused to do, and refused to allow any service to the plaintiff as a member of the mutual company. Plaintiff's office telephone was connected with one of the rural lines running into the city over which the defendant agreed to furnish free service and all telephone connection with the members, and the plaintiff demanded that his instrument be so connected, which the defendant refused to do; that after making the agreement between the mutual company and the defendant the only switchboard in Colony used in connection with these companies was the one operated by the defendant and the plaintiff had no means of connection except through these boards; that in March, 1913, it was agreed that the plaintiff should pay the defendant one dollar a month for his office telephone upon condition that if it should finally be determined that he was entitled to the rights of a member of the mutual company the defendant should repay him the excess over the charge required of members. Whereupon the office telephone was connected; that after the state utilities commission had settled a certain controversy between the patrons of the mutual line and the defendant, including the rights of the plaintiff as a member of the mutual company, it was ordered by the commission that the plaintiff's home telephone be placed upon the list at twenty-five cents a month; that afterwards the defendant presented a bill for $ 5.40. The plaintiff demanded the return of $ 12 overcharge, which left still due the plaintiff $ 6.60 which the defendant refused, and he has since refused to switch the office phone or allow the plaintiff to use it; that because of business transactions by the plaintiff his office phone was a matter of pressing necessity and to be deprived of its use was a continuing injury, and that by reason of the defendant's refusal to allow plaintiff to use his office telephone during January and February, 1912, and since November 7, 1912, he had been damaged in the sum of $ 500, and by reason of the excess charge the defendant was indebted to him in the sum of $ 6.50, with interest.

The defendant argues that if all the matters in controversy were settled by the utilities commission nothing was left but the overcharge. But such is not the allegation. There is no attempt to allege what controversy was thus settled except the plaintiff's rights as a member of the mutual company which was "One of the matters heard and determined by said board, and it was the decision of said board that the plaintiff at all times from the first of January, 1912, was a member of said Mutual Telephone Company and entitled to all the rights, privileges and benefits accruing to the members of said company including their rights under the arrangements hereinbefore referred to with said defendant." ...