Vaught v. East Tennessee Tel. Co.

Decision Date08 October 1910
Citation130 S.W. 1050,123 Tenn. 318
CourtTennessee Supreme Court

Error to Circuit Court, Hamilton County; M. M. Allison, Judge.

Actions by J. H. Vaught and by one Thomas against the East Tennessee Telephone Company. From judgments dismissing the actions plaintiffs bring error. Affirmed.

J. W Eastman and Jeptha Bright, for plaintiffs in error.

Watkins & Thompson, for defendant in error.


This suit was brought by the plaintiff in error to recover from the defendant in error the statutory penalty of $100 per day provided in section 11, c. 66, of the Session Acts of the General Assembly of this State of the year 1885, upon the alleged ground that, in violation of the terms of the statute, the defendant in error, having agreed to furnish him a telephone in his home, declined to install it until he paid three months' rental in advance, and that this exaction was a "discrimination" against him, inasmuch as the general rule of the defendant in error, under which the exaction was made, was not uniformly enforced against those seeking to become patrons of the defendant in error.

The East Tennessee Telephone Company is a duly organized corporation, with a situs in the city of Chattanooga engaged, as its name would imply, in a general telephone business. This being so, it is well settled that it is a quasi public corporation, and as such bound, under the statute in question, and independently of it at common law to serve the public without partiality or discrimination. In the case of State of Missouri v. Bell Telephone Company (C. C.) 23 F. 539, Brewer, J., said: "A telephone system is simply a system for the transmission of intelligence and news. It is, perhaps, in a limited sense, and yet in a strict sense, a common carrier. It must be equal in its dealings with all. It may not say to the lawyers of St. Louis, 'My license is to establish a telephone system open to the doctors and merchants, but shutting out you gentlemen of the bar.' The moment it establishes a telephonic system here, it is bound to deal equally with all citizens in every department of business; and the moment it opened its telephonic system to one telegraph company, that moment it put itself in a position where it was bound to open its system to any other telegraph company tendering equal pay or equal service." In keeping with this, in Delaware & A. Tel. & Tel. Co. v. Delaware, 50 F. 677, 2 C. C. A. 1, it was said: "It is no longer open to question that telephone and telegraph companies are subject to the rules governing common carriers and others engaged in like public employment. This has been so frequently decided that the point must be regarded as settled. While it has not been directly before the Supreme Court of the United States, cases in which it has been so determined are cited approvingly by that court in Budd v. New York, 143 U.S. 517, 12 S.Ct. 468, 36 L.Ed. 247. While such companies are not required to extend their facilities beyond such reasonable limits as they may prescribe for themselves, they cannot discriminate between individuals of classes which they undertake to serve."

It is equally well settled that statutes providing against discrimination by corporations affected by public use are simply declaratory of the common law. Central Union Tel. Co. v. Fehring, 146 Ind. 189, 45 N.E. 64; State v. Nebraska Tel. Co., 17 Neb. 126, 22 N.W. 237, 52 Am. Rep. 404; State v. Citizens" Telephone Co., 61 S.C. 83, 39 S.E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870; State v. Bell Tel. Co., 36 Ohio St. 296, 38 Am. Rep. 585; Cumberland Tel. & Tel. Co. v. Kelly, 160 F. 316, 87 C. C. A. 268.

Upon examining the statute in question, it will be found that it grants privileges to telephone and telegraph companies, and prohibits in general terms "discrimination among patrons," leaving to the courts to determine in each particular instance whether illegal "discrimination" has been made. Inasmuch as this is but a statutory declaration of a principle of the common law, applied alike to all quasi public corporations, it is necessary to refer to the authorities dealing with the question to ascertain whether, without a violation of this principle, such a corporation can extend credit, for service rendered, to one or more of its patrons, and exact payment in advance from others.

Before going to the authorities, it is not improper to observe that it would be difficult to give any sound reason why a privilege enjoyed by individuals and all private corporations should be forbidden to a common carrier of freight or passengers, or in fact to any other quasi public corporation. In private enterprises the necessities of business require the exercise of a prudent discrimination between those who are and those not entitled to an extension of credit, and a rule so essential to the successful conduct of these, it would seem, should be accorded to those, though engaged in serving the public, who are seeking returns on their labor and capital invested.

As has been seen, the courts recognize that telephone and telegraph companies are in a strict sense common carriers, and, as to their privileges and liabilities, classify them with railroads and express companies. One of the common-law rights or privileges of these companies is that of requiring payment of carrying charges from any one or more of its customers at will. This right or privilege, it is well understood, is not within the inhibition of the interstate commerce law providing against discrimination. In Oregon Short Line v. Northern Pacific (C. C.) 51 F. 472, Field, J., says: "A railroad corporation, like any other common carrier, has a right to demand that its charges for transporting goods shall be paid in advance, and is under no obligations to receive goods for transportation unless such charges are paid, if demanded." This case was affirmed by ...

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4 cases
  • Home Tel. Co. v. People's Tel. & Tel. Co.
    • United States
    • Tennessee Supreme Court
    • December 16, 1911
    ... ... 270 HOME TELEPHONE CO. v. PEOPLE'S TELEPHONE & TELEGRAPH CO. et al. Supreme Court of Tennessee.December 16, 1911 ...          Appeal ... from Chancery Court, Knox County; Will D ... Telegraph Co. v ... Nashville, 118 Tenn. 1, 101 S.W. 770; Vaught v. East ... Tennessee Telephone Co., 123 Tenn. 318, 130 S.W. 1050 ... It is a doctrine of the ... ...
  • Danaher v. Southwestern Telegraph & Telephone Co.
    • United States
    • Arkansas Supreme Court
    • February 3, 1919
    ... ... court. Danaher v. Southwestern Tel. & Tel ... Co., 94 Ark. 533, 127 S.W. 963 ...          On the ... ...
  • Mooreland Rural Telephone Company v. Mouch
    • United States
    • Indiana Appellate Court
    • October 27, 1911
    ... ... 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 ... State (1886), 105 Ind. 250, 55 ... Am. Rep. 201, 5 N.E. 178; Vaught v. East Tenn ... Tel. Co. (1910), 123 Tenn. 318, 130 S.W. 1050, 31 L. R ... ...
  • Johnstown Telephone Company v. Berkebile
    • United States
    • Kansas Court of Appeals
    • May 24, 1926
    ... ... would be immaterial. (26 R.C.L. p. 538; Vaught v. Tele. Co., ... 123 Tenn. 318, 130 S.W. 1050.) It is claimed that ... ...

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