Home Telephone Co. v. Sarcoxie Light & Telephone Co.

• Decision Date: 03 July 1911
• Parties: HOME TELEPHONE COMPANY, Appellant, v. SARCOXIE LIGHT & TELEPHONE COMPANY
• Court: Missouri Supreme Court

139 S.W. 108

236 Mo. 114

HOME TELEPHONE COMPANY, Appellant, v. SARCOXIE LIGHT & TELEPHONE COMPANY

Supreme Court of Missouri

July 3, 1911

Appeal from Jasper Circuit Court. -- Hon. David E. Blair, Judge.

Reversed and remanded.

Hugh Dabbs and McReynolds & Halliburton for appellant.

(1) A court will grant injunction to protect contract right, and it is not necessary that the injury should be irreparable and defendant insolvent. Brewing Co. v. Water Works, 34 Mo.App. 119; Gordon v. Mayfield, 84 Mo.App. 367; Tool Co. v. Springs Co., 93 Mo.App. 530; Musser v. Brink, 80 Mo. 350; Jones v. Williams, 139 Mo. 1; Electric Works v. Magnet Co., 9 Am. & Eng. Ann Cases, 975. (2) A court of equity has the right to specifically enforce the contract between plaintiff and defendant. Railroad v. Railroad, 144 N.Y. 152; Tel. Co. v. Harrison, 145 U.S. 549; Tel. Co. v Railroad, 129 F. 849; Fashion Co. v Siegel-Cooper, 157 N.Y. 60; Joy et al., 138 U.S. 1. (3) The contract between the plaintiff and defendant is made by authority of and is especially authorized by Sec. 3329, R. S. 1909. Under this section it is held that railroad companies may make an exclusive operating contract with another company or carrier, and such contracts are held not to be in restraint of trade and not a monopoly. Ferry Co. v. Railway, 73 Mo. 389; Ferry Co. v. Railway, 128 Mo. 224; Railway v. Railway, 135 Mo. 173; Railroad v. Car Co., 139 U.S. 79; Richmond v. Railroad, 26 Iowa 191; Railroad v. Richmond, 19 Wall. 584; Bridge Cases, 10 U. S. App. 98; Board v. Christie, 198 U.S. 237. Sec. 2329, R. S. 1909 (Sec. 1254, R. S. 1899) having authorized telephone companies to make contracts like the one in issue and being a special statute relating to telephone and telegraph companies alone, and the anti-trust sections being general, if in conflict, the special act must be taken to be intended to constitute an exception to the general act, and is not repealed by the general law, even though the latter should be passed subsequent in point of time to the former. Manker v. Faulhaber, 94 Mo. 441; Rushburg v. Railroad, 161 Mo. 85; State ex rel. v. Hostetter, 137 Mo. 644; Donnell v. Lee, 101 Mo.App. 191; State v. Kessell, 121 Mo.App. 233; State v. Bunswanger, 122 Mo.App. 78; State ex rel. v. Foster, 187 Mo. 590; State ex rel. v. Wilder, 197 Mo. 27; Endlich on Inter. of Stat., sec. 181; Sutherland on Stat. Cons., secs. 157-8; Lough v. Outerbridge, 38 N.E. 292. (4) The contract set out in the petition is not invalid as being in restraint of trade, monopolistic, or violation of Secs. 10298, 10299 and 10301, R. S. 1909, the restraint, if any, being only partial, and the restriction reasonable, and not so large as to interfere with the rights of the general public. Skrainka v. Scharringhausen, 8 Mo.App. 522; Long v. Toll, 42 Mo. 545; Ferry Co. v. Railroad, 73 Mo. 389, 116 U.S. 615; Finck v. Granite Co., 187 Mo. 269; State v. Oil Co., 218 Mo. 379; Eddy on Combinations, sec. 224; Cook's Combinations and Monopolies, sec. 145; State v. Cadwallder, 87 N.E. 650; Tel. Co. v. Tel. Co., 112 N.Y.S. 425; Joy v. Railroad, 138 U.S. 1; Fashion Co. v. Railroad, 68 Am. St. 749; Tel. Co. v. Railroad, 68 L. R. A. 970; Railroad v. Railroad, 144 N.Y. 152; Tel. Co. v. Harrison, 145 U.S. 549; Railroad v. Railroad, 5 DeG. & M. 138; Railroad v. Railroad, 163 U.S. 560; Railroad v. Railroad, 5 McLean (U.S.) 450; Railroad v. Railroad, L. R. 16 Eq. 433; Railroad v. Railroad, 24 F. 516; Tel. Co. v. Railroad, 129 F. 849; U. S. v. Pipe Co., 175 U.S. 211; Cates v. Atlanta Co., 46 L. R. A. 431; Donovan v. Pacific Co., 119 U.S. 276; Railroad v. Car Co., 135 U.S. 79; Railroad v. State, 99 Tex. 34; State ex rel. v. Tel. Co., 36 Ohio St. 296; People ex rel. v. River Co., 19 Abbott's New Cases, 479; Woods v. Whitehead, 165 N.Y. 545; Grasselli v. Loudon, 11 Ohio St. 357; Brass v. McConnell, 114 Iowa 401; Railroad v. Railroad, 110 U.S. 680; Railroad v. Express Co., 117 U.S. 34; Railroad v. Car Co., 139 U.S. 79; State v. Brown, 10 Dec. Ohio, 38; Snyder v. Depot Co., 30 O. C. C. 368; Ferry Co. v. Railroad, 73 Mo. 389; U. S. v. Tel. Co., 50 F. 28; Steamboat Co. v. Railroad, 45 N.Y.S. 109; Richmond v. Railroad, 26 Iowa 191; Greenhood on Public Policy, p. 208; Cook on Monopolies, sec. 142.

Thomas & Hackney for respondent.

(1) The said contract in so far as it attempts to prevent either party from permitting any other person or corporation to make connections with their lines and in so far as it attempts to prevent either of said corporations from transmitting messages and allowing the use of their lines to persons or corporations other than the appellant and respondent is void as being contrary to Sec. 3030, R. S. 1909. Contracts entered into in violation of a statute are void notwithstanding such contract is not expressed to be void by the terms of the statute. 9 Cyc. 366; 15 Am. & Eng. Ency. Law (2 Ed.), 941; Haggerty v. Railroad, 143 Mo. 238; Assn. v. L. & C. Co., 138 Mo. 394; Sumner v. Summers, 54 Mo. 340; Miller v. Ammon, 145 U.S. 421; Pernn v. Bornman, 102 Ill. 523; Sawyer v. Sanderson, 113 Mo.App. 233; Sharp v. Teese, 9 N. J. L. 352; Bank v. Owens, 27 U.S. 527; Harris v. Runnels, 12 How. 79. (2) The respondent having furnished telephone facilities to the appellant cannot refuse to furnish like facilities to all other telephone companies, notwithstanding it is forbidden to do so by its contract with the appellant. Such a contract is void at common law governing monopolies in restrain of trade, as well as void under the statute. Telephone companies are common carriers though not liable as insurers. Through voluntarily undertaking to serve the public in their chosen capacity, they assume at least one obligation incident to the relation of a common carrier. This obligation the common law annexed to the use of their instruments which operates to fix the duty upon such companies to furnish impartial service to any one offering to comply with their reasonable requirements not only in respect to their public station system, but also to the private use of instruments installed in office, residence and place of business. The obligation arising from the use is to furnish each and all equal facilities for connection without unjust discrimination. State ex rel. v. Tel. Co., 93 Mo.App. 349; Tel. Co. v. Tel. Co., 17 A. 1071; State ex rel. v. Cadwallader, 87 N.E. 644; State ex rel. v. Tel. Co., 17 Neb. 126; State ex rel. v. Tel. Co., 61 S.C. 83; State ex rel. v. Tel. Co., 23 F. 539; State ex rel. v. Tel. Co., 47 F. 633; Tel. Co. v. State ex rel., 50 F. 677; State ex rel. v. Tel. Co., 36 Ohio 296; Tel. Co. v. Tel. Co., 66 Md. 399; Hockett v. State, 105 Ind. 250; Tel. Co. v. Bradbury, 106 Ind. 1; Tel. Co. v. State ex rel., 118 Ind. 194; Tel. Co. v. Tel. Co., 3 A. 829; Tel. Co. v. Tel. Co., 171 F. 130; 27 Am. & Eng. Ency. Law (2 Ed.), 1021; Jones on Telephones, sec. 243; Tel. Co. v. Tel. Co., 147 Mo.App. 216. (3) The exclusive privilege in the contract now sought to be enforced is violative of the public policy of the State. Sec. 10298, R. S. 1909; Sec. 10299, R. S. 1909; State ex rel. v. Oil Co., 218 Mo. 1. (4) Counsel for appellant in their brief seem to rely exclusively on Sec. 3329, R. S. 1909, to uphold the validity of the contract in issue. Said section certainly cannot be so construed by this court as to permit appellant to enter into a contract with respondent which would violate Secs. 3328 and 3330. While the respondent and appellant had the right under Sec. 3329 to enter into a contract by which their respective lines would be connected, yet the respondent had no right to disable itself by such contract from performing its duty to the public, enjoined upon it by Sec. 3330. Jaicks v. Merrill, 201 Mo. 91; St. Louis v. Klausmeier, 213 Mo. 119; Ewing v. County, 216 Mo. 681; State ex rel. v. Ferry Co., 208 Mo. 622. In conclusion, respondent maintains that the identical question involved in this case is settled adversely to appellant by the St. Louis Court of Appeals in the case of Tel. Co. v. Tel. Co., 147 Mo.App. 216.

OPINION

In Banc

GRAVES J.

Plaintiff sues defendant to enjoin it from violating a certain agreement made between them May 4, 1905, concerning the exchange of business on their respective lines. The material portions of the agreement read:

"This agreement, entered into by and between the Home Telephone Company, a corporation of Joplin, Missouri, first party, and Sarcoxie Light and Telephone Company, a corporation of Sarcoxie, Missouri, second party.

"Witnesseth that whereas, the first party is operating telephone exchanges at Carthage, Carterville, Webb City and Joplin Missouri, and the second party operating an exchange at Sarcoxie, Missouri, and both operating local lines that toll business is handled over, connecting principal points in Jasper county, and arrange for the interchange of business with independent or opposition exchanges or toll lines in said county, and if desirable and practicable, extend such service beyond said county, under such arrangements as will be advantageous.

"Now therefore, the parties hereto, for themselves their successors and assigns, in consideration of the mutual promises herein made, covenant and agree as follows, to-wit:

"First. The first party agrees to build and maintain a metallic No. 10 iron, or a copper No. 10, telephone line or lines from Carthage to Sarcoxie, then to connect with the party of the second part's line to be run from the city limits to its exchange for the purposes herein specified.

"Second. Each party hereto grants a license to the other party to connect with the telephone exchange or system of the other party through its switch board at Carthage and Sarcoxie so that an interchange of business may at all times be carried on between said parties. Such connection...