Irvin v. Rushville Cooperative Telephone Co.

• Decision Date: 16 December 1903
• Docket Number: 19,926
• Citation: 69 N.E. 258,161 Ind. 524
• Parties: Irvin v. Rushville Cooperative Telephone Company
• Court: Indiana Supreme Court

69 N.E. 258

161 Ind. 524

Irvin v. Rushville Cooperative Telephone Company

No. 19,926

Supreme Court of Indiana

December 16, 1903

From Rush Circuit Court; M. E. Forkner, Special Judge.

Action by Arthur B. Irvin against the Rushville Cooperative Telephone Company. From a judgment for defendant, plaintiff appeals.

Affirmed.

S. L Innis, G. W. Morgan, Reuben Conner, Lon Conner and A. B Irvin, for appellant.

B. L Smith, Claude Cambern and D. L. Smith, for appellee.

OPINION

Gillett, C. J.

Action by appellant in ten paragraphs, to recover ten penalties of $ 100 each, under the provisions of §§ 2, 3, Acts 1885, p. 151, §§ 5529, 5512 Burns 1901. A demurrer was sustained to each of said paragraphs, and there was a final judgment that appellant take nothing by his action, and for costs.

The eleventh paragraph of complaint is of a representative character, and an exhibit of that will therefore sufficiently show what is alleged. Said paragraph, omitting the prayer, is as follows: "That the defendant is an incorporated telephone company, duly incorporated under the laws of the State of Indiana authorizing the incorporation of telephone companies, and that it is now, and has been for more than eight years past, engaged in carrying on a general telephone business in the city of Rushville, Indiana; that said company, at the time of its organization, adopted the plan of allowing patrons who desired telephone service to become stockholders in the company, to purchase and own their own telephones, and to purchase and own their own wires leading from the location of their said telephones over the pole lines of the defendant to its exchange, and to pay a rental at the end of each month of a sum sufficient to pay the operating expenses of said company; that under this arrangement the plaintiff purchased and paid for one share of stock in said company, purchased a first-class telephone, and also paid for a line of wire leading from said telephone, which was and is located in plaintiff's dwelling on North Main street, in said city of Rushville, and within the local limits of said telephone business, to the switchboard of the defendant in said city; that on the 20th day of July, 1898, he had said telephone and line in good working order and connected as aforesaid; that he had always complied with the reasonable regulations of said company, and that on said 20th day of July, 1898, he called up the exchange of the defendant and demanded that he be connected with number twenty-nine, which was the line leading from said defendant's switchboard to plaintiff's said telephone, which said defendant unlawfully and wrongfully refused to do; that more than two years before the happening of the grievances hereinafter complained of the defendant, by its board of directors, had adopted a rule or by-law which reads as follows, to wit: '13. All moneys due this company or its toll-line connections shall be payable at the office of the secretary on or before the 5th day of the month succeeding the maturity of such indebtedness, and if not paid on or before said date, the service of such delinquent shall be discontinued until such indebtedness is fully paid.' That said rule or by-law was never enforced by the defendant; that the patrons of said company did not pay the tolls, dues, and demands that the several patrons of said company owed said company at the office of the secretary of said company in compliance with the provisions of said rule, but, on the contrary, said company allowed said rule to remain unenforced, and at no time has said company enforced the same; that on said 20th day of July, 1898, the defendant was justly indebted to the plaintiff in the sum of $ 1.50, and he owed said company on account of rent and tolls the sum of $ 1.05, leaving defendant owing him, after deducting said rent and tolls, the sum of forty-five cents; that long after said telephone service had been refused the plaintiff, as hereinbefore stated, the defendant gave as a reason for refusing said telephone service that the plaintiff had not paid the rent and tolls he owed said company, but at the time said telephone service was refused the defendant gave no reason for refusing said telephone service; that at the time he was refused telephone service, as hereinbefore stated, thirty-five other patrons of the defendant, who were in like situation with the plaintiff, except that the defendant did not owe them, or any of them, any amount, were delinquent and in arrears in the payment of rent and tolls that each of said thirty-five patrons then owed the defendant, and had been in arrears in the payment of said tolls and rents from and beyond the time of the maturing of the indebtedness of $ 1.05 from the plaintiff to the defendant hereinbefore mentioned; that the defendant did not refuse said thirty-five patrons, or any of them, who were in arrears in the payment of their respective rents and tolls, as hereinbefore stated, telephone service, but, on the contrary, continued to render each of said thirty-five delinquent patrons telephone service, though each of said thirty-five patrons remained delinquent and failed to pay what they each owed said company for more than twenty days after the plaintiff had been refused telephone service as aforesaid, though demands had been made upon them for the payment of said dues; but plaintiff expressly avers that the defendant unlawfully and wrongfully discriminated against the plaintiff, and refused to render him telephone service, as hereinbefore stated."

On a former appeal of this case, where there had been a recovery on each of the first ten paragraphs of complaint, which were afterwards dismissed, it was held by the Appellate Court that said by-law or rule number thirteen was valid, and that appellee was not obliged to yield such provision or incur the statutory penalty in case it could be proved that appellant had a set-off greater than the amount of the delinquent rental. Rushville Cooperative Tel. Co. v. Irvin, 27 Ind.App. 62, 59 N.E. 327. Much of the effort of appellant's counsel on this appeal has been to show that the cause of action has been so changed that the decision of the Appellate Court above referred to is not the law of the case. It is claimed that the present complaint is based on an unlawful discrimination. It is further claimed that the question as to the reasonableness of said by-law or rule was not presented to the Appellate Court, and that therefore appellant is not bound by its decision upon that point. In the latter insistence counsel impliedly forget the announced theory of their complaint, but we prefer to put our decision on a broader basis.

Section 5529 Burns 1901 is as follows: "Every telephone company with wires wholly or partly within this State, and engaged in a general telephone business, shall within the local limits of such telephone companies' [sic] business supply all applicants for telephone connections and facilities with such connections and facilities without discrimination or partiality, provided such applicants comply or offer to comply with the reasonable regulations of the company; and no such company shall impose any conditions or restrictions upon any such applicant that are not imposed impartially upon all persons or companies in like situation, nor shall such companies discriminate against any individual or company engaged in any lawful business, or between individuals or companies engaged in the same business, by requiring as a condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise for any lawful purpose."

The claim is made on behalf of appellant that his complaint states a cause...