Smith v. Southwestern Telegraph & Telephone Co.

• Decision Date: 16 June 1913
• Citation: 158 S.W. 975,109 Ark. 35
• Parties: SMITH v. SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY
• Court: Arkansas Supreme Court

158 S.W. 975

109 Ark. 35

SMITH v. SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY

Supreme Court of Arkansas

June 16, 1913

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge affirmed.

STATEMENT BY THE COURT.

Appellant brought this suit against the telephone company, claiming the penalty denounced by law for discrimination against him in failing to supply him with telephone service at his residence at 1304 Olive street, in Argenta, Arkansas.

The complaint alleges that he was a resident within the corporate limits of Argenta, within the boundaries of the territory where the defendant operates a telephone system in said city. That it maintains a telephone system and lines for the use of the public in said city; that he applied to the defendant to furnish him the usual telephone service, signifying a willingness to comply with all the reasonable requirements and all lawful demands the defendant might make, but that the defendant refused to comply with his request and wilfully discriminated against him, its action being contrary to and at variance with a practical compliance of the request of the plaintiff, "and discriminatory in that other subscribers in said vicinity were receiving and are receiving the services of the defendant as above requested by the plaintiff, under conditions entailing no greater expense or hardship upon the defendant than would have been entailed by compliance with the plaintiff's demand and request."

The answer denies that the plaintiff demanded on December 8 1911, that he be furnished with telephone service at his residence address and that he offered to comply with the reasonable rules and regulations of the telephone company or pay its reasonable charges as the condition of compliance with his request and that it discriminated against him. It denied that he resided within the territory where it operated and that it was supplying other customers within the vicinity of his residence with telephone service under conditions entailing no greater expense or hardship than would have been incurred on compliance with his demands. Alleged that it was under the statute and the common law permitted to establish reasonable rules and regulations for the government of its business in supplying the public with telephone service. That in the proper exercise of its discretion it had prescribed the rules requiring persons desiring telephone service and connection for local exchange service whose residence was more than two blocks distant from the defendant's pole line to deposit with it a sum of money sufficient to reimburse it for the extra expense of building to such residence or place of business. That it had uniformly enforced said rules and regulations against all persons similarly situated with the plaintiff; that it did not discriminate against him in enforcing said rules and regulations which were adopted in good faith and under the belief that it had the right to make them both under the statute and under the common law and its franchise with the city of Little Rock and "that it offered to install a telephone and furnish plaintiff telephone service at said number on Olive Street, Argenta, provided he would comply with its rule and regulation, by depositing with it sufficient money to reimburse it for the extra expense of building to his residence; that he declined to do this, and that, for this reason, it refused to install said telephone at said place; that said rule and regulation was reasonable and not arbitrary; that it protects the defendant from waste, and benefits the public."

It alleged further that it uniformly enforced the rule for the purpose of conserving its resources and property and to enable it to economically and profitably serve the public. That it was adopted and enforced in good faith in the belief that it was reasonable and just. The city of Little Rock regarded it so. Alleged further that it was operating a telephone exchange in the city of Little Rock under a franchise from said city. That the city of Argenta was located across the river therefrom and that it had no exchange in said city and no contract or franchise with it, binding it to operate one; that it has never held itself out as engaged in furnishing telephone service to all of the citizens or inhabitants of Argenta; that as to Argenta and its inhabitants, it has only undertaken to serve certain districts therein; that it adopted this course from necessity; that the city of Argenta covers a large area of territory and embraces within its corporate limits many sparsely settled communities and a great many communities inhabited by people who can not afford and do not wish telephone service; that plaintiff resides in one of such communities, his residence facing a large unplatted field, and being surrounded on the other side by the homes of negroes and people who are unable to afford and do not wish telephone service.

From the testimony it appears that Clement A. Smith, appellant, is a physician, and living at 113 North Olive Street, Argenta, in December, 1911, but moved therefrom on the 15th of said month to 1304 Olive Street, which was three blocks from Main Street, and which extends out to Twenty-seventh Street, beyond the plaintiff. He applied for his phone to be changed to his new address just before moving, went to the office of the telephone company in Little Rock, asked for the manager and talked with the lady, who said she was the assistant manager; told her he desired the phone moved from 113 North Olive Street to 1304 Olive Street, and she told him to come back in two or three days and she would let him know about it. When he returned, Mr. Stout, the manager, who was in the office, being told he was the man who desired the phone removed, said he would send a man out to investigate it; and later told him, "We have sent a man over to investigate and we find that you are not living near the line and you can not get a phone;" he said, "the only way you can get a phone is you will have to get poles and put wires up yourself, and if you do that we will connect with you;" told the plaintiff he could either do this or move on to the line of the company, to which he replied he was a physician and needed the phone and was willing to do anything reasonable to get it, but could not do that. He was then told he would have to build the line himself; this was upon the second conversation, following that with the lady and the first conversation had with the manager. He said further that the demand was made on December 8 and the phone never had been put in and the suit was brought on the 11th or the 12th of January following.

Not being pleased with the manager's statement, he wrote the company a letter, asking the company to give him service. Said letter is as follows:

"Southwestern Telegraph & Telephone Company, Little Rock, Ark.:

Dear Sirs: In regard to moving my phone, 2586, 113 Olive Street, Argenta, Ark., you said I would have to build my line. I was talking to a man in the country; he said he could furnish the poles at 12 1/2 cents per foot. If I buy the poles, will I have to have them put in, or will you pay for any kind of work being done? Please let me know soon. Yours truly,

(Signed)

C. A. Smith."

To which he received the following reply, on December 20:

"Little Rock, Ark., December 20, 1911.

Dr. C. A. Smith, 102 South Magnolia Street, Argenta, Ark.:

Dear Sir: Replying to your letter of the 18th inst., will say that we would connect with a line which you would build from your residence to our construction. This is, of course, if you build and furnish entire line. We do not, under any circumstances, build a portion of the line. We will install telephone and make necessary connection, if you will do as per above. Before you take any steps toward building this line, it would be best that you take the matter up with authorities in Argenta, as to the right to place poles on the streets of that city; that is, of course, if the streets on which you are to place poles are within boundary of the city limits.

Yours truly,

(Signed)

C. Stout,

District Manager."

He testified that his residence was within the city of Argenta, the limits of which extended thirteen or fourteen blocks beyond him. That the telephone company served the residents of Argenta as such, placing phones in various stores and houses; that the nearest phone to his residence was two blocks distant, at the St. Louis Cotton Compress No. 2. Another was three blocks distant on Thirteenth and Main. Another at the public school, three blocks from the plaintiff. That there were five or six phones within a radius of two or three blocks of his residence, all furnished by the defendant. He then went into a particular description of the location as to the different places at which phones were installed in relation to his residence.

In January he again wrote the defendant as follows:

"Southwestern Telegraph & Telephone Company, Little Rock, Ark.:

Sirs: I wrote you, but have never heard from you. I want telephone connection at 1304 Olive Street, Argenta, Ark. I have been living at 113 Olive Street, Argenta, Ark. I would like to have my phone moved to 1304 Olive. I am willing to pay proper toll of same usually charged. Trusting to hear from you by return mail,

Yours truly,

(Signed)

C. A. Smith, M. D."

He said he had a talk with Mitchell, one of the defendant's employees and the contracting agent of the defendant after his application for a phone was put in, that he had also written him a letter, to which he had no reply.

The stenographer in the manager's office stated that on about December 15 or 16, the plaintiff came to the office and made an order to remove his...