State v. Kinloch Tel Co.

• Decision Date: 18 March 1902
• Citation: 67 S.W. 684,93 Mo. App. 349
• Parties: STATE ex rel. PAYNE et al. v. KINLOCH TEL. CO.
• Court: Missouri Court of Appeals

67 S.W. 684

93 Mo. A. 349

STATE ex rel. PAYNE et al. v. KINLOCH TEL. CO.

Court of Appeals of St. Louis, Missouri.

March 18, 1902.

TELEPHONE COMPANIES — RELATION TO PUBLIC — PRIVATE SERVICE — RIGHT TO REFUSE — EXACTION OF CONDITIONS — PAYMENT OF BACK RENT — MANDAMUS.

1. A telephone company sustains such relations to the citizens of the territory in which it operates that it is bound to enter into a contract with a citizen to furnish him private service when requested and accompanied with an offer to pay the usual charge in advance; and where an instrument has been removed, and the customer is solvent, and it is fairly doubtful if any back rent is due, or the subscriber has paid for all the actual former service rendered, it cannot exact as a condition that it be made whole for back rent claimed and the cost of the reinstallation; and the fact that it maintains public toll stations for the use of the general public would not justify its refusal to furnish service.

2. When a telephone company unjustly refuses to furnish a customer with service, mandamus will lie to compel it to do so.

Appeal from St. Louis circuit court.

Application for mandamus by the state, on the relation of O. E. Payne and others, against the Kinloch Telephone Company. A peremptory writ was denied, and relators appeal. Reversed.

D. D. Holmes, for appellants. Geo. W. Easley and Boyle, Priest & Lehmann, for respondent.

GOODE, J.

An alternative writ of mandamus was issued at the instance of appellants commanding the respondent to rent to the appellants a telephone instrument, and place the same, together with the usual appurtenances, in their building, connect it with the wires of the respondent's telephone system, and so maintain it as to afford the plaintiffs the customary facilities for receiving and transmitting messages over the wires of the respondent throughout the city of St. Louis, or show cause to the contrary. Appellants constitute a copartnership doing business under the style of the Keystone View Company. The respondent, the Kinloch Telephone Company, is a corporation organized under the laws of this state, and is engaged in operating a telephone system in the city of St. Louis for the transmission of news and messages for hire between its customers within said city by means of the apparatus and appliances pertaining to such a system. According to its return, it operates two systems, — one consisting of instruments located in public places, like hotels or drug stores, which any person may use at any time for a small toll; and the other a system of private instruments, placed in the offices or buildings of subscribers under special contract, and under just and reasonable rules governing their use. By its answer respondent contends that it is a common carrier in respect to the first or public system, but that as to the other it is not a common carrier, and is only bound to serve persons with whom it contracts on terms, conditions, and regulations made by the respondent. In March, 1900, the following contract was made by the parties, under which appellants subscribed for an instrument to be placed in their business quarters: "St. Louis, Mo., March 7, 1900. We hereby agree to rent of the Kinloch Telephone Company at our place of business, No. 3443 Laclede avenue, one telephone on copper wire metallic circuit, for the period of five years, upon the following terms and conditions: (1) To pay $60 per annum, in quarterly payments, said payments to be made in advance. (2) We agree to use said telephone as long as we require the use of a telephone, not to exceed five years. (3) The time of the beginning of the term to date from the installation of the instrument. (4) The telephone furnished to be and remain the property of the Kinloch Telephone Company, which company shall have authority to remove the same for nonpayment of the rental, after reasonable notice. Keystone View Company, per M. I. Payne, Pres." Appellants paid the hire of the telephone for which they subscribed until the 1st day of October, 1900, it seems, or two quarters. It worked badly, and messages could not be received or transmitted over it satisfactorily. Appellants complained of its defects from time to time, and attempts were made to put it in good working order, but without success, until about the 15th day of December. In the meanwhile appellants became so dissatisfied with the appliance, and tired of waiting for it to be adjusted properly, that they notified the respondent on the 31st day of August — that is, a month before the expiration of the time for which they had paid, to remove it. Respondent disregarded several notices of this kind, and on the 15th day of December the instrument was finally adjusted so that it rendered good service, and the appellants were willing and desired to retain the use of it, and so notified the respondent, tendering them on the 3d day of January the sum of $15 for the quarter next ensuing and offering to pay them $5 for the service during the time the instrument had been efficient prior to said date. Respondent demanded pay for the entire time the instrument had been in appellants' house, regardless of whether it worked or not, — that is, insisted on being paid for the time from October 1st to December 15th, — though there was no evidence tending to prove the telephone was of any use to the appellants during that interval. In spite of said tender and appellants' notification that they wished to retain the instrument after it became efficient, respondent removed it on the 4th day of January, 1901, and has since that time refused to restore it unless paid for all the time it was in the building at the usual rates. The claim is put forward that one rule of the company is not to reinstate a telephone which has been removed for nonpayment of rent until all back payments have been made and the cost of reinstallation, amounting to $17, also paid in advance (although the latter item was waived by the manager or superintendent of the company in this instance). The alleged rule in regard to when an instrument will be restored to a subscriber or reinstalled on his premises is not among any of the printed rules of the company furnished to subscribers, nor is it in the form of a printed rule at all, nor was it communicated to appellants when they made the contract with the respondent, or ever communicated to them until they demanded a continuance of service by the respondent.

The facts in this case are undisputed, the precise issue being whether or not the respondent is bound to install a telephone on the appellants' premises on their demand and tender of one quarter's rent in advance, plus the unpaid rent for the time they enjoyed good service by the other telephone; and whether, if there is an obligation of that kind on the respondent, it may be enforced by this remedy. Such a controversy might often turn somewhat on the regulations of the telephone company, its contracts with customers, and the behavior of the latter while using the telephone system. But, aside from the special circumstances that may arise in any case, a larger question is raised by the return to the alternative writ of mandamus in the present one, namely, whether the respondent, or any other telephone company, sustains such a relation to the citizens of the territory in which it operates its system that it is bound to enter into a contract with a citizen to furnish him telephonic facilities when requested and accompanied with an offer to pay the usual charge in advance. Notwithstanding the recency of the use of telephone communication as an aid to the transaction of social and commercial affairs, that use has increased with so much rapidity, and has become so widespread, that this question has been already presented to and passed on by the courts several times, and passed on, too, without much doubt, or difficulty; for the principle involved and to be applied to the solution of the question was well settled. Telephone companies have been held from the first to be common carriers in the sense that they are bound to furnish service to any one offering to comply with their reasonable requirements, not only in respect to their public stations system, but also as to the so-called private system of instruments installed in offices, residences, and places of business. State v. Bell Tel. Co. (C. C.) 23 Fed. 539; State v. Delaware & A. Telegraph & Telephone Co. (C. C.) 47 Fed. 633; State v. Bell Tel. Co., 36 Ohio St. 296, 38 Am. Rep. 583; Chesapeake & P. Tel. Co. v. Baltimore & O. Tel. Co., 66 Md. 399, 7 Atl. 809, 59 Am. Rep. 167; Bell Tel. Co. v. Commonwealth (Pa. Sup.) 3 Atl. 825; Hockett v. State, 105 Ind. 250, 5 N. E. 178, 55 Am. Rep. 201; Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Central Union Tel. Co. v. State ex rel. Falley, 118 Ind. 194, 19 N. E. 604, 10 Am. St. Rep. 114; Same v. State ex rel. Hopper, 123 Ind. 113, 24 N. E. 215; State v. Bell Tel. Co., 22 Alb. Law J. 363; State ex rel. Webster v. Nebraska Tel. Co., 17 Neb. 126, 22 N. W. 237, 52 Am. Rep. 404. In the cases above named the duty of an incorporated company operating a telephone system in a certain locality to treat all citizens of that locality alike, and to give them all equal privileges in regard to the use of the system by entering into contracts with them and installing instruments on their premises, is recognized and upheld, as well as the power of the courts to compel the observance of this duty by a writ of mandamus. Some of the decisions are founded on statutes more or less positively prescribing the duty, and others on the common-law rule that a common carrier, or other company or person holding...