Mooreland Rural Telephone Company v. Mouch

Decision Date27 October 1911
Docket Number6,964
Citation96 N.E. 193,48 Ind.App. 521
PartiesMOORELAND RURAL TELEPHONE COMPANY v. MOUCH
CourtIndiana Appellate Court

From Henry Circuit Court; Ed Jackson, Judge.

Suit by Joseph Mouch against the Mooreland Rural Telephone Company. From a decree for plaintiff, defendant appeals.

Affirmed.

Forkner & Forkner, for appellant.

Eugene H. Bundy and N. Guy Jones, for appellee.

OPINION

MYERS, J.

This was a suit by appellee against appellant, to enjoin the latter from removing a telephone from the former's residence. A demurrer for want of facts was sustained to appellant's amended answer, and on its refusal to plead further, a decree was entered for appellee.

The errors assigned call in question the sufficiency of the complaint for want of facts, by an independent assignment and also by an assignment based on the failure of the court to carry the demurrer to the answer back to the complaint and the ruling of the court on the demurrer for want of facts to the amended answer.

It appears that appellant is a corporation engaged in the general telephone business, with its home office and principal place of business at the town of Mooreland. Appellee is a resident of said town, and is there conducting and operating a grain elevator, and doing a general grain business. Aside from his elevator, in which he has an office, he maintains a dwelling-house, in which the telephone in question is located. Since the organization of said telephone company appellee has been a stockholder, and, under its rules, is entitled to two telephones. Prior to September, 1907, he had one telephone in his residence and one in his office, paying for each $ 1 a month, the uniform charge under the rules of the company. The answer avers that on August 17, 1907, the stockholders at a general meeting adopted the following resolution: "That all business men, including doctors, stock-dealers that ship on an average of one car each month, blacksmiths, contractors, real estate agents, etc., be charged twenty-five cents more each month for each business telephone, commencing September 1, 1907." This resolution was in force at the time this suit was commenced. On September 6, 1907, the board of directors of said company, at a special meeting, ordered the removal of all telephones classed as business telephones, unless the patrons having such telephones would pay the increased rate. Appellee refused to pay the extra charge for the use of the telephone in his office, and it was thereupon removed. Thereafter said board classed the telephone in appellee's residence as a business telephone, on the theory, as averred in appellant's amended answer, that appellee, after the removal of the telephone from his office, maintained no other telephone for business purposes, "and from that time to the present time he has unlawfully and without right used the telephone in his residence for business purposes, and has constantly transacted his business over said telephone, and refuses to pay any additional charge therefor, over and above the regular and ordinary charge for a residence telephone," and because of such refusal appellant intends to and will remove the telephone from appellee's residence. The complaint alleges that the action of the board in classing the telephone in appellee's residence as a business telephone, and demanding of him twenty-five cents extra each month over the rate charged users of other telephones classed as residence telephones, was unreasonable, arbitrary, unjust and partial, and imposed upon appellee a condition and restriction not imposed upon or required of other patrons of the company having telephones in their residences; that his use of said telephone is not different from the usual and ordinary use of telephones by patrons of the company in their different residences, and that he has complied with all the rules and regulations of the company, other than the payment of the extra twenty-five cents a month demanded of him on account of the telephone in his residence.

The gist of this suit is discrimination and partiality, and on this subject the legislature has enacted the following statute: "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 company's 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." Acts 1885 p. 151, § 5802 Burns 1908. Appellee is both a stockholder and a patron of the company, and while his rights as a stockholder are not involved, he claims that the threatened action of appellant will invade his rights as a patron.

It is clear from the nature of appellant's business and field of operations that it must be regarded as a common carrier of news, and impressed with a public interest. Central Union Tel. Co. v. State, ex rel. (1889), 118 Ind. 194, 10 Am. St. 114, 19 N.E. 604. If this be true, then at common law, its obligations to the public within the local limits of its business require that it serve all alike situated, who will comply with its reasonable rules, without discrimination or...

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