Johnstown Telephone Company v. Berkebile

Decision Date24 May 1926
Docket Number15677
Citation283 S.W. 456
PartiesJohnstown Telephone Company, a Corporation, Appellant v. Scott Berkebile, Respondent
CourtKansas Court of Appeals

Appeal from Bates Circuit Court.

Reversed and Remanded.

Ewing C. Bland. Arnold J., concurs; Trimble, P.J., absent.

OPINION
Ewing C. Bland

This is an action to replevin a telephone instrument. There was a verdict and judgment in favor of defendant and plaintiff has appealed.

The facts show that plaintiff is a corporation engaged in operating a telephone system in Bates and Henry counties which, apparently, consisted largely of rural telephone lines. Defendant was one of plaintiff's subscribers on line No. 16. For the purpose of furnishing service plaintiff's predecessor installed a telephone instrument in defendant's house. The Public Service Commission having made a rule allowing plaintiff to collect charges in advance, plaintiff in February or March, 1924, demanded that defendant pay three months in advance for the service. Defendant refused to pay on the ground that he had not been furnished adequate service and upon his said refusal the telephone instrument was demanded by plaintiff, but defendant refused to give it up.

Defendant testified that at the time the instrument was demanded he had paid all of the charges due up to that time; that he told plaintiff's agents that he would pay the amount demanded if he could get proper service; that he was willing at all times to pay the charges in advance if he could get proper service and that the controversy over service was the only one he had had with plaintiff. Over the objection of plaintiff, defendant was permitted to show that the service was not paid on account of the physical condition of the line. Defendant testified that the service that he had been receiving was "mighty poor" and that he had complained about it to plaintiff; that the batteries that plaintiff had furnished defendant had run down and he was required to furnish his own batteries. Numerous witnesses testified that line No. 16 had been neglected for years; that in some instances there were no poles for a quarter of a mile or more; that the wire in places was down and was overgrown with weeds and brush end at intervals was tacked upon trees fences and posts; that some of the poles were broken, leaned over and were supported by trees, fences, brush, etc. The testimony tends to show that the lines were in such condition that good service could not be rendered. Defendant testified that "they have given me some service--, mighty poor * * * I am perfectly willing to pay the company if they will give me service, that is all I ask them to do."

Over the objection of plaintiff the court instructed the Jury on behalf of defendant that if defendant had paid all the rental that had been demanded of him at the time the service was refused, except rental for the three months in advance, and that plaintiff had permitted line No. 16 of the system to become so out of repair and in such condition that defendant was unable to get reasonable service over said line, and at the time defendant refused to pay further rental he was ready, willing and able to pay such rental as soon as adequate service was restored to him, their verdict should be for the defendant even though they believed that plaintiff was the owner of the telephone instrument.

The court refused to give an instruction for plaintiff seeking to tell the Jury that if they found the telephone instrument was the property of plaintiff and that if it was the rule of the company, authorized and approved by the Public Service Commission, that subscribers should pay in advance and demand was made upon defendant to pay in advance and defendant refused to so pay, their verdict should be for plaintiff for the return of the telephone instrument. The court gave the instruction with the following addition, "Provided you further believe from the evidence that plaintiff had furnished defendant with reasonable service."

Complaint is made of the admission of evidence concerning inadequate service and the giving of defendant's instruction and the refusal of plaintiff's instruction and the giving of plaintiff's instruction as amended. Defendant's contention is that--

" * * the duty devolved upon the plaintiff to furnish him (defendant) batteries, and to keep its line in such a condition that it might be used by him; and that until this is done, he is under no obligations to pay in advance especially without any assurance on the part of the plaintiff that its line would be repaired. He contends further that a rule of the public service commission, if there be one, to the effect that payment should be made in advance, for service or that the telephone instrument should be taken out could only be interpreted to mean that these conditions could apply where service was being rendered and not where service was not being rendered. It would be unreasonable and unjust according to plaintiff's (defendant) notion, to require him to pay out money and get practically nothing in return therefor."

It will be noted, though perhaps immaterial, that at the time defendant's service was discontinued and the telephone instrument demanded, plaintiff was not attempting to collect for any charges for past service. Defendant testified that he had paid up to that date. Plaintiff was merely attempting to collect for future service and defendant was contending that he had a right to refuse to pay for service in the future and to deliver the telephone instrument to plaintiff, unless plaintiff furnished adequate service, which had not been furnished in the past. If defendant's action is to be sustained, it will necessarily...

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