Horton v. Interstate Tel. & Tel. Co.

• Citation: 163 S.E. 694
• Decision Date: 20 April 1932
• Docket Number: 334.
• Parties: 202 N.C. 610, 83 A.L.R. 941 v. INTERSTATE TELEPHONE & TELEGRAPH CO. HORTON
• Court: United States State Supreme Court of North Carolina

163 S.E. 694

202 N.C. 610, 83 A.L.R. 941

HORTON v. INTERSTATE TELEPHONE & TELEGRAPH CO.

No. 334.

Supreme Court of North Carolina

April 20, 1932

Appeal from Superior Court, Durham County; Daniels, Judge.

Action by T. J. Horton against the Interstate Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Mandamus held proper to compel telephone company to install telephone.

The judgment of the court below was as follows:

"This cause coming on to be heard and being heard before his Honor, F. A. Daniels, Judge presiding, and being heard upon evidence offered in the form of written affidavits and parole testimony during the regular term of Superior Court of Durham County, North Carolina, beginning on October 26th, 1931, and it being agreed upon by counsel for both of the parties to this action that judgment might be entered at a subsequent time by his Honor, Judge F. A. Daniels while out of the district; now, therefore, upon consideration of the evidence offered and the arguments of counsel, the Court finds the following facts:

"1. That the plaintiff is a citizen and resident of Durham County, North Carolina, and that the defendant is a corporation duly created, organized and existing under and by virtue of the laws of the State of North Carolina, with its principal office in the City of Durham, North Carolina.

"2. That the defendant under the terms of its franchise from the City of Durham owns and operates a telephone company in Durham, North Carolina, and furnishes a telephone service to the public generally in the City of Durham, North Carolina; that the defendant only owns and conducts a local business in the City of Durham and does not own lines and other facilities for long distance telephone messages; and further that the defendant affords its subscribers and patrons long distance telephone facilities under the terms of an agreement which it has with the Southern Bell Telephone Company, and that under the terms of said agreement with the Southern Bell Telephone Company the defendant is obligated and liable for the payment of all long distance calls made by its subscribers. There is no evidence that defendant can not, by agreement with the Southern Bell Telephone Company, keep itself informed as to the number of long distance calls made by defendant's subscribers.

"3. That the defendant requires the payment of a month's rent in advance from all its subscribers which only covers the local service charge and does not include any long distance telephone charges that might be incurred through the use of the long distance telephone service; and that the managers and superintendents of the company follow an established rule of requiring deposits from all persons who have bad credit ratings and/or who are considered financially irresponsible and that said regulation is an established custom of such officers of the company in the management and conduct of its business; and that said deposits range from $15.00 to $25.00, depending upon the nature of the business to be conducted by the applicant, the estimated probable number of long distance telephone calls and the use to be made of the telephone service by the applicant; that this rule has never been formally adopted at a meeting of the stockholders or Board of Directors of the company, and has never been published, but is an established rule that has been in effect by the management over a long period of time.

"4. That T. J. Horton is now a subscriber to the telephone service of the defendant, having a telephone in his residence, and that on two different occasions the telephone service has been temporarily discontinued and on one occasion the telephone instrument removed from the home of said T. J. Horton on account of the failure and refusal of the plaintiff to pay for the telephone service in his home.

"5. That in October, 1927, T. J. Horton was the president of Horton Electric Company, a corporation doing business in the City of Durham, North Carolina, and that at his request the telephone was installed in the place of business of the Horton Electric Company on October 21, 1927, and permitted to remain there until 20th day of August, 1928, that during said time it became necessary to temporarily discontinue said telephone service three times and on August 2Oth, 1928, to remove the instrument from said place of business on account of the failure and refusal of the Horton Electric Company to pay for the service received, the amount of the indebtedness owed at that time being $21.05, of which amount local charges amounted to $10.50 and long distance tolls amounted to $10.55.

"6. That on the 13th day of October, 1931, the plaintiff made application for the installation of a business telephone to be installed at No. 121 Market Street in the City of Durham, North Carolina, and with his application made a deposit of $9.50 to cover installation charges and local rent for one month in advance; and that the defendant issued to plaintiff its receipt for the same in the following language:

"'Account No. --

"'Name T. J. Horton Co.

"'Local --

"'So. Bell --

"'Granville --

"'Misc.

Paid

Oct. 13, 1931.

Interstate Telephone & Telegraph Company.

"'Total $9.50.

"'The installing charge is not a deposit and will not be refunded. All telephone bills are due and payable monthly in advance subject to discontinuance without further notice if not paid by the 10th.'

"That on the next day the plaintiff was informed by V. O. Isenhour, an agent of the defendant, that the defendant held an unpaid bill of the Horton Electric Company, a corporation of which plaintiff had been president and which had ceased to do business, and that unless he paid the bill of $21.05 due by the said Electric Company he would be required to make a cash deposit of $25.00 before the telephone applied for would be installed; that the plaintiff was not liable for the payment of the said bill and declined to pay the same; that thereupon the defendant explained to the plaintiff that it did not know when the contract was made in 1927, that the Horton Electric Company was a corporation and offered to make the installation of said telephone if he would make the further deposit of $25.00 which the plaintiff declined to make: That the defendant did not refuse to install the telephone because the plaintiff refused to pay the $21.05 but because he would not make the deposit of $25.00 as required by the defendant.

"7. That the defendant's officers and agents invoked its rule of requiring a deposit from applicants who have bad credit ratings and/or who are financially irresponsible for the reason that they considered the plaintiff to be financially irresponsible and of a bad credit rating; and that they offered to install a telephone and furnish telephone service to the plaintiff if he would make a deposit of $25.00 as a guarantee of payment for future service in the nature of long distance telephone calls and local service charges; that the plaintiff refused to make said deposit and demanded the installation of a telephone without said deposit.

"8. That the plaintiff is indebted to C. H. Matthews Grocery Store and had been so indebted for a period of two years or more; that he is indebted to two clothing stores in the City of Durham, North Carolina, and has been so indebted for a period of two years or more; that he is indebted to a doctor in the City of Durham, North Carolina, for professional services rendered and has been so indebted for a period of two years or more; that there are two unpaid judgments docketed against Mrs. T. J. Horton for groceries used in the home of the plaintiff and for which payment has never been made; that on two different occasions the plaintiff gave worthless checks to Montgomery Ward & Company and refused to pay the same until after they had been placed in the hands of an attorney for collection; that in four different cases during the year 1928 the plaintiff was indicted and convicted of giving worthless checks which had been drawn by the Horton Electric Company, a corporation, but which was under the management and direction of T. J. Horton personally, and which checks were drawn personally by the said T. J. Horton. That on one occasion the plaintiff vacated a residence after an ejectment proceeding had been instituted against him in the Courts of Durham County and service of summons had been made upon him by a proper officer.

"9. That the plaintiff does not own any real estate and only lists for taxes personal property...