Southwestern Telegraph & Telephone Co. v. Danaher

• Decision Date: 12 February 1912
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY v. DANAHER
• Court: Arkansas Supreme Court

144 S.W. 925

102 Ark. 547

SOUTHWESTERN TELEGRAPH & TELEPHONE COMPANY v. DANAHER

Supreme Court of Arkansas

February 12, 1912

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

STATEMENT BY THE COURT.

This action was here on a former appeal and is reported under the style of Danaher v. Southwestern Telegraph & Telephone Company, 94 Ark. 533. The action is for a recovery of the statutory penalties, under section 7948 of Kirby's Digest, for an alleged discrimination against the plaintiff in refusing her telephone service.

The controversy arose because the defendant company refused plaintiff telephone service until she should pay a claim for past due services, which the defendant contends she owed, and which the plaintiff insists she did not owe. Reference is made to the former decision for a more extended statement of the issues. After the case was remanded for a new trial substantially the following testimony was introduced:

For several years prior to March 30, 1908, the plaintiff had a telephone in her residence in the city of Little Rock; on the date mentioned it was disconnected from the exchange and remained disconnected until the 8th day of May. During this time plaintiff tried to get the central office every day but got no response. The reason for doing this was because the telephone company refused her further service until she should pay a claim it had against her for past due services which she contended she did not owe. She paid $ 2 to the defendant company at its office in Little Rock on March 13 1909, and said that she paid this for services for the month of March. Commencing with the month of April, service for telephone in residences was raised to $ 2.75 per month, but subscribers were given a rebate of fifty cents when they paid before the 15th of the current month. The plaintiff tendered $ 2.25 at the office of the company before the 15th of April but the defendant told her that she was not entitled to the discount unless she paid the back bill, and on the 29th day of April, she paid $ 2.75 to the company. On the 2d day of May she went to the office of the company and told them that she wanted to pay for that month. She first offered to pay $ 2.25, but they told her that she was not entitled to the 50 cents discount unless she paid its claim for past services. She then paid the company $ 2.75 and told them that it was for the month of May.

The following agreed statement of facts was also introduced:

"It is agreed that during the months of April and May, 1908, the defendant had in operation in Little Rock, Arkansas, more than five thousand telephones, a majority of which were in private residences; that under the rules of the defendant during these months all residence telephone subscribers were charged $ 2.75 per month, from which a deduction of fifty cents a month was made in all cases where the rentals were paid by the subscriber on or before the 15th day of said month.

"It is agreed as a fact in the case that the defendant telephone company cut off plaintiff's telephone on the 30th of March, 1908, and refused to give plaintiff further telephone service thereafter for the reason that the defendant claimed that the plaintiff owed it for telephone service theretofore rendered, which claim on the part of the telephone company was disputed by the plaintiff, she claiming that she did not owe the telephone company for any service rental in the past."

The jury returned the following verdict:

"We, the jury, find a verdict in favor of the plaintiff, as follows: "From March 30 to May 8, 1908, inclusive, making forty days at $ 100 (one hundred dollars) per day, for nonservice, making $ 4,000 (four thousand dollars), and, from May 9 to May 31, 1908, inclusive, twenty-three days at $ 100 (one hundred dollars) per day, making $ 2,300 (twenty-three hundred dollars) for discrimination. Making a total verdict of $ 6,300 (sixty-three hundred dollars) in favor of plaintiff."

From the judgment rendered the defendant has duly prosecuted an appeal to this court.

Judgment affirmed.

Walter J. Terry, A. P. Wozencraft and Coleman & Lewis, for appellant.

1. The issues determined on the former appeal (94 Ark. 533) were wholly different and distinct from those raised in the present record. This is a suit for a statutory penalty (Kirby's Digest, § 7948), for discrimination against plaintiff.

2. As to the common law rule of liability of quasi-public corporations, see 160 F. 316; 66 Md. 399; 105 Ind. 250; 106 Id. 1; 61 S.C. 83; 71 S.W. 435. There was also a remedy by mandamus. Jones on Tel. & Tel. Companies, § 495; 61 S.C. 83; 17 Neb. 126; 45 Barb. 136. Also by injunction. 117 F. 726; Jones Tel. & Tel. § 496.

3. For decisions on statutes like ours see 160 F. 316; 72 Ark. 478; 81 Ark. 486. No rule can be laid down by which the credit to which each person is entitled can be determined.

4. The regulations of the company were reasonable; they applied to all delinquents; and there was no discrimination against plaintiff. 160 F. 332; 117 N.W. 780; 40 Ark. 97; 45 Id. 158; 63 S.W. 785; 25 App. Cas. (D. C.) 443; 148 Cal. 490.

Dan. W. Jones, W. S., M. and Palmer Danaher, for appellee.

1. 94 Ark. 533, settles all questions and issues raised here.

2. It is a discrimination to refuse service on the ground of a failure to pay for past service. 94 Ark. 533; 140 S.W. 720. The case of 160 F. 316, is not in point, as the court only held that conduct which would not amount to an illegal discrimination at common law would not be an illegal discrimination under the statute.

3. Where the law fails to fix a reasonable rate, the courts must decide. 41 Am. St. Rep. 283; 94 U.S. 155; 125 Id. 680; 55 Ark. 65; 21 L. R. A. 787. Such statutes are constitutional. 129 U.S. 26; 17 L. R. A. 286; 207 U.S. 73; 24 L. R. A. 504; 86 Ark. 115.

4. Plaintiff was entitled to the same treatment as all others. 5 A. & E. Enc. (2 ed.) 166; 57 Am. St. 546.

OPINION

HART, J., (after stating the facts).

The telephone company has the right to make and enforce reasonable rules and regulations for the guidance of its subscribers, and, in case the subscriber refuses to obey such regulation, may refuse to furnish telephone service, without being guilty of discrimination, and such right was recognized by the court on the former appeal of this case. We held in addition, on the former appeal, that where a subscriber refuses to pay charges for past services but properly asked the telephone company to reinstate his telephone in his residence, his demand for reinstatement is not barred by his refusal to pay for past service which he claims he does not owe. Mr. Justice BATTLE, speaking for the court, said:

"A telephone company, being a public servant, can not refuse to serve any one of the public in that capacity in which it has undertaken to serve the public when such one offers to pay its rates and comply with its reasonable rules and regulations. It can not refuse to serve him until he pays a debt contracted for services rendered in the past. For the present services, it has a right to demand no more than the rate of charge fixed for such services....