Phillips v. Southwestern Telegraph & Telephone Co. , 72 Ark. 478 ( 1904 )

Hughes, J.

(after stating the facts). This action is brought to recover the penalty imposed by the act of March 31, 1885, f°r discrimination against the plaintiff in failure by the telephone company to supply him at his residence with “telephone connections and facilities.” Acts 1885, p. 176. The eleventh section of said act is as follows:

“Section 11. Every telephone company doing business within this state, and engaged in a general telephone business, shall supply all applicants for telephone connection and facilities without discrimination or partiality, provided such applicants comply or offer to comply with the reasonable regulations of the company, and no such company shall impose any condition or restriction upon any such applicant that are not imposed impartially upon all persons or companies in like situations; nor shall such company discriminate against any individual or company engaged in lawful business by requiring as condition for furnishing such facilities that they shall not be used in the business of the applicant, or otherwise, under penalty of one hundred dollars ($100) for each day such company continues such discrimination and refuses such facilities after compliance or offer to comply with' the reasonable regulations and time to furnish the same has elapsed, to be recovered by the applicant whose application is so neglected or refused.”- Sand. & H. Dig. § 7335.

This court is of the opinion that the complaint fails to state any discrimination, and that the judgment of the circuit court in sustaining the deihurrer is correct,' and must be affirmed. Where a complaint states a cause of action defectively, it is not proper to seek to take advantage of it by demurrer, but it is proper to file a motion to correct the defect. Where the objection is to the form merely, a motion, and not a demurrer, is proper. But where the complaint is defective in substance — that is, does not state facts, in any form, sufficient to make a cause of action — a demurrer is proper.

The plaintiff does not allege that he was discriminated against. Had he done so, without stating the facts constituting the discrimination, it would have amounted only to a conclusion of law. State v. Graham, 38 Ark. 519; Keith v. Freeman, 43 Ark. 305. He merely alleges that the defendant refused and failed to supply him, at his residence, with telephone connection and facilities, after repeated application to it therefor. Then he says “that, by reason of the aforesaid discrimination and refusal, defendant has incurred a penalty under the provisions of the statute.” This does not amount to a statement of facts constituting discrimination. It is only a statement of facts constituting a refusal to furnish telephone connection facilities, and we do not understand that this is actionable. In the case of Ball v. Fulton County, 31 Ark. 381, page 383, it is said: “The distinction between the failure to state a necessary fact to enable the plaintiff to recover, and a defective and uncertain statement of facts, should be kept in view. For the first cause the defendant should demur, and for the second he should move to make that more definite and certain which was improperly stated.”

We are of the opinion that the demurrer in this case challenged the sufficiency in substance of the complaint to state a cause of action, and the judgment of the court in sustaining the demurrer to it is correct.

The judgment is affirmed, but with leave to plaintiff to amend his complaint, if he can lawfully do so, and if so advised; and this cause is remanded to the circuit court for further proceedings in accordance herewith.