O'Neal v. Citizens' Public Service Co. of South Carolina

• Decision Date: 16 July 1930
• Docket Number: 12951.
• Citation: 154 S.E. 217,157 S.C. 320
• Parties: O'NEAL v. CITIZENS' PUBLIC SERVICE CO. OF SOUTH CAROLINA.
• Court: South Carolina Supreme Court

154 S.E. 217

157 S.C. 320

O'NEAL v. CITIZENS' PUBLIC SERVICE CO. OF SOUTH CAROLINA.

No. 12951.

Supreme Court of South Carolina

July 16, 1930

Appeal from Common Pleas Circuit Court of Hampton County; T. S Sease, Judge.

Action by M. H. 0'Neal against the Citizens' Public Service Company of South Carolina. From a judgment for plaintiff defendant appeals.

Affirmed.

Randolph Murdaugh, of Hampton, for appellant.

Hugh O Hanna and George Warren, both of Hampton, for respondent.

GRAYDON A. A. J.

This was an action on the part of the plaintiff, M. H. O'Neal against the Citizens' Public Service Company of South Carolina, a corporation, for damages alleged to have been sustained by plaintiff by reason of the discontinuance of his telephone service in October or November, 1928, and also for refusal thereafter to permit plaintiff to use the long-distance pay stations which were operated by the defendant.

The complaint alleged, in substance, in paragraph 1, the residence of the plaintiff and the corporate existence of the defendant and that W. F. Sanders was the agent and manager of the corporation.

Paragraph 2 alleged, in substance, that in October or November, 1928, the defendant, through its agent and manager W. F. Sanders, in the presence of a number of people, presented a telephone bill to the plaintiff in the office of the Western Union Telegraph Company; that plaintiff requested an itemized statement of the charges on said bill for the purpose of checking the same; that the amount of the bill was approximately $30, and that the plaintiff at the time complained that he was being charged for service which was not rendered to him on account of his telephone being out of commission; that the agent of the defendant admitted that the bill was not correct, and in the meantime the plaintiff offered to pay 50 per cent. of the bill and to pay the balance when settlement could be effected; that defendant refused to do this, notifying the plaintiff that, unless the bill was paid at once, the telephone would be cut off.

Paragraph 3 alleged, in substance, that the plaintiff went to a regular pay station and attempted to put in a long-distance call, for which service plaintiff was ready to pay the toll required in advance, that the call was refused, and that W. F. Sanders, the agent of the defendant, admitted that he had given instructions not to permit the plaintiff the use of the pay stations, and that said acts on the part of the defendant were discriminatory and in violation of the rights of the plaintiff.

Paragraph 4 alleged, in substance, that on another occasion plaintiff attempted to put in a call for Savannah, stating that the call was important; said call being placed in through the Hampton Banking Company and ""Okayed" by Mr. Gifford, the cashier, but that this call was also refused.

The fifth paragraph alleged, in substance, that all of the aforementioned acts were to his great damage and were willful, negligent, and conscious invasion of plaintiff's rights, and prayed for the sum of $3,000 as damages.

The answer of the defendant admitted its corporate existence, and denied each and every other allegation in said complaint contained.

It will be seen from the above that the complaint of the plaintiff contained a twofold cause of action--one being based on the alleged improper discontinuance of his telephone service when there was then pending a disputed bill; the other for the refusal of the defendant to permit the plaintiff to use the pay stations upon offer to pay the toll in advance. There was no question made by the defendant that these causes of action were not properly united. Barrett v. Broad River Power Co., 146 S.C. 85, 143 S.E. 650.

The law in South Carolina is that a public service corporation has no right to refuse service to a person or to discontinue his service when there is then pending a legitimate dispute as to the correctness of the bill rendered. The court has held that mandamus is an appropriate remedy in cases of this character. Poole v. Paris Mountain Water Co., 81 S.C. 438, 62 S.E. 874, 876, 128 Am. St. Rep. 923; Benson v. Paris Mountain Water Co., 88 S.C. 351, 70 S.E. 897.

This court has further laid down the rule that, where the bills are admittedly correct, it is the duty of the subscriber to pay such just bill, and the public service corporation has a perfect right to discontinue service under such conditions. This is clearly set forth in the case of Barrett v. Broad River Power Company, supra.

The first ten exceptions of the defendant charge error in the refusal of the circuit judge to grant the motions of the defendant which were timely made, both for a nonsuit and a directed verdict. The theory upon which the defendant claimed both a nonsuit and a directed verdict was that the evidence was clear and conclusive, that the bill was past due, just, and owing, and that there was no legitimate dispute about it. In those exceptions the defendant further claims that the proper remedy was by injunction to prevent the defendant from discontinuing plaintiff's said service.

The plaintiff had a threefold remedy. He could have applied for a mandamus to compel the restoration of service, or for an injunction to prevent the discontinuance, or entered a suit for damages for the unlawful and willful discontinuance of service. The plaintiff chose to adopt the latter of these three remedies, and in doing so he was within his legal rights.

The defendant in the exceptions overlooks the fact that, even if the jury had found that the bill was just and owing and that the defendant had a perfect right to discontinue plaintiff's telephone service, the defendant would have had no legal right to refuse to furnish the plaintiff with service when he offered to pay the legal tolls required of him.

The circuit judge could not have directed a verdict when there was an additional wrong alleged to that of the unlawful discontinuance of service. The circuit judge correctly charged the jury as to the right of the defendant to discontinue service, and then went further and charged the jury on the right of the plaintiff to demand damages under the alleged second wrong. The first ten exceptions are therefore overruled.

Exception 11 alleges in the presiding judge refusing to charge the jury, at the defendant's request, as follows: "I charge you, as a matter of law, that a telephone company has the right to discontinue its service to any of its subscribers, upon the failure of the subscriber, after notice thereof, to pay the recent and just bills for the service given him; and also the right to refuse to give him further service until its bills are paid; and, if you should find from the testimony in this case, that the bill of the telephone company was just and correct and that payment of same was demanded from the plaintiff, M. H. O'Neal, and that he refused to pay same, then and in that event I charge you that you will have to find a verdict for the telephone company, the defendant in this case."

This request was perfectly proper under the first wrong alleged in the complaint, but the circuit judge had already covered this proposition of law in his general charge, and this request would have eliminated from the consideration of the jury the question of the alleged second wrong upon which plaintiff was relying. It would have been error for the Judge to have charged this request in the form presented by the defendant, and this exception is therefore overruled.

Exception 12 alleges error on the part of the Circuit Judge in refusing to charge the jury that where there was a disagreement as to the amount justly due it was proper and correct for the plaintiff to have paid the same under protest, to sue for the return of the same, and to apply to the Court for an order enjoining the defendant from discontinuing his service.

As above stated, the plaintiff did not have to pursue this course, and this was not his exclusive remedy. For this court to lay down such a principle would mean that it would be necessary for a telephone subscriber in a dispute over a small amount to engage in expensive litigation to prevent an injury being done to him by the public service corporation. It would be just as reasonable to say that it was the duty of the public service corporation to sue the plaintiff and secure a judgment against him before discontinuing his service. If the public service corporation relied on the correctness of its bill to discontinue service and such bill is found to be correct, under the Barrett Case, supra, it is an absolute defense. If the bill is not correct, however, then the discontinuance is made at the peril of the company. This also disposes of exception 13.

Exception 14 complains that the judge refused to charge the jury that the bill was just and correct and that plaintiff could not recover, but this exception also overlooks the fact that the plaintiff was relying upon an additional wrong alleged in the complaint.

Exception 15 alleges error in the circuit judge charging the following proposition of law: "I charge you, gentlemen, that the law requires a Public Service Corporation, such as this, to render service at the pay station whether such person is indebted to them or not in any amount. In other words, gentlemen, the company could not refuse the service on the ground that the one that offered to pay the cash was a dishonest man, and would not pay his debt theretofore to the company."

This was a fair and correct statement of the law. The plaintiff although he owed the defendant a bill, had a perfect right to use the pay station upon tender or offer to pay the legitimate toll therefor. Suppose that a man owed a railroad corporation a balance on a freight hill, could such...