Smith v. Southwestern Telegraph & Telephone Co. , 109 Ark. 35 ( 1913 )

Kirby,. J.,

(after stating,the facts). It is insisted, first, that there is no evidence to support the verdict, that incompetent testimony was introduced and that the court erred in giving said instructions numbered 1 and 2.

There is no doubt but that the telephone company did refuse to furnish facilities and service to the address of Doctor Smith, except upon the condition of a compliance with its rules, nor can it be doubted that in reply to his letter about building the extension of the line to his residence it replied that it would not build any portion of the line, but would install a telephone and make necessary connections if he built and furnished the line. This does not show, however, that Doctor Smith offered to comply with the rules and regulations of the company, relative to furnishing service to persons situated in like condition with himself. The manager of the defendant company, its assistant manager, the contracting agent and the line construction foreman all testified that they told Doctor - Smith of the rule requiring the deposit of money for the expense of construction and six months’ phone rent in advance before connection was made with a subscriber located more than two blocks beyond the pole line of the company, unless enough subscribers could be procured in the locality to justify the expense, and that the appellee had the district canvassed for other subscribers and none could be obtained. These witnesses say that appellant did not accept nor indicate any intention of accepting the proposition as required by the rule and the manager testified that he (Smith) suggested building the line himself and was told by him that the company would make the connection if he did so, and that the letters in evidence were written relative to that proposition only. The testimony was in conflict on this point, hut the preponderance of it appears in the company’s favor, and in any event the verdict of the jury against appellant settled the question of fact.

The ordinance of the city granting the franchise under which the appellee company operated, permitting the charge to he made upon which its rule was founded was also introduced in evidence, and the contracts with Bostick and Menea in Argenta, as well as other contracts and applications introduced in evidence, show that it was not only the rule hut the custom of the company to require a compliance with it in order to the supplying of telephone service to the class of subscribers desiring it and like situated with appellant more than two blocks beyond the pole lines of the company both in Argenta and in Little Rock.

The statute, section 7948, Kirby’s Digest, provides:

“Every telephone company doing business in 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 applicant that is not imposed impartially upon all persons or companies in like situation,”

In Danaher v. S. W. Tel. & Tel. Co., 94 Ark. 536, the court, construing the statute, said: “The telephone company in devoting its property to a use in which the public has an interest, becomes a public servant and is bound to serve the public impartially. It is like common carriers in that it is bound to serve those applying to it impartially and upon equal terms. * * * Being a public servant, it 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.”

In the same case, 102 Ark. 550, 144 S. W. 926, S. W. Tel. & Tel. Co. v. Danaher, the court said: “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 regulations, may refuse to furnish such telephone service without being guilty of discrimination. * * * Telephone companies by the necessity of commerce and by public use have become common carriers of communications, and as such must supply all alike who,,are alike situated and can not discriminate in favor of or against any one.”

In Younts v. Telephone Co., 192 Fed. 200, the court, construing this statute, said: “It is only when these facilities are granted generally to persons similarly situated as the plaintiff that the refusal to extend to him the same privileges may become a discrimination within the meaning of the statute.”

It is true, the statute says that telephone companies engaged in the general telephone business shall supply all applicants for telephone connection and facilities without discrimination, etc., but certainly the statute was not intended to require that telephone service should be furnished all applicants therefor. It only denounces a penalty against discrimination and after an offer on the part of the person demanding service to comply with its reasonable regulations. It is prohibited from imposing any condition or restriction upon any applicant for service that is not imposed impartially upon all persons or companies in like situation; and the proof shows that the telephone company acquainted the applicant for service with its regulations requiring the payment of six months’ rent in advance and the deposit of the cost of construction of the excess of the line over two blocks, where an extension is necessary to connect and give service, and that it required all persons in a like class or similarly situated with appellant to comply with said rules and regulations, and, such being the case, there could have been no discrimination against him within the meaning of the statute, the rule being reasonable. It was not contended that the rule was unreasonable, but rather its existence and application was denied, and the court in the first instruction complained of declared it to be reasonable, and it was a matter for the court to determine. Thompson on Electricity, 200.

It is also true section '17 of the ordinance introduced in evidence as the rule of the company, relates only to furnishing service within the city of Little Rock, authorizing the charge therein to be made, but this did not prevent the company applying it, which the proof shows it did do as a rule and regulation to be complied with by all persons demanding service in localities where it operated without regard to whether it was within the limits of the city of Little Rock, or the sister city of Argenta across the river, and we fail to see the force of. appellant’s objection to instruction numbered 1 on account thereof. Neither do we see that instruction numbered 2 complained of was incorrect in declaring that the burden was upon the plaintiff to show by a preponderance of the testimony that he offered to comply with the defendant’s reasonable rules and regulations, and if the jury should find that the residence where he desired the service was more than two blocks distant from the defendant’s line of poles that the burden of proof would be upon him to show that he tendered the defendant six months’ rent in advance, and, in addition thereto, offered to deposit with it a sum of money sufficient to. cover the cost of furnishing and building said line in excess of two blocks, failing to show which that the verdict should be for the defendant. Since the ruie required the payment in advance of the six months’ rental, plus the cost of the extra construction, we can see ho objection to telling the jury that the burden was upon the defendant to show he had tendered such amount, for his last letter, in which he said he was “willing to pay proper toll of same usually charged,” certainly would not be regarded as an offer to pay said sum, neither was it intended to be such an offer, as explained by Doctor Smith, who said he did not even know that there was any such rule. This letter must be taken in connection with the other two, and also with the negotiations which had been carried on between the parties and conld not be considered a compliance or an offer to comply with the rule that would subject the company failing thereafter to comply with the demand, to the penalty denounced by the statute. It may be that if plaintiff had offered to pay in advance the required amount a tender thereof would not have been necessary, if the defendant had expressed an intention not to extend the service any way, but all the testimony shows, except that of appellant, that the company was willing to extend its facilities and give the service upon the compliance with its rule; that it canvassed the district to see if enough subscribers could be procured to give the service without requiring a compliance with the rule and that no disposition upon the part of appellant was shown to make the required payment in advance, the testimony, except his own, showing that he was unable to, or did not care to do so, and his own letter, relative to the building of the line, rather corroborates the statement of the manager that he himself suggested or asked if the service could be given if he constructed the line himself. The testimony on the part of the appellee showed the requirements of its rule; that it informed appellant of such requirement and the necessity for the payment in advance of the rental with the excess cost of the line, which would not be constructed and the service given except upon a compliance therewith upon the part of appellant, and we see no objection to the court having told the jury that after he was so advised that it was necessary on his part to show a tender of the money, and a failure thereafter of the telephone company to give the service, in order for him to recover the penalty for its failure to do so. Nothing else but a tender under such circumstances would have amounted to an offer to comply with its reasonable regulations within the meaning of the statute. Danaher v. S. W. Tel & Tel. Co., 94 Ark. 533.

It was probably not necessary for appellee to introduce some of the testimony complained of, but it was done in order to meet questions raised by appellant in the introduction of its testimony and to show in detail that there had been no failure on its part to comply with its ■ rule in connecting with other residences and places of business nearest the residence of appellant; the jury might otherwise have inferred from some of the testimony, but for the introduction of this, that because such telephones were located near to' this place, the company was required to give the service demanded by appellant and subject to a penalty for having failed to do'so.

We find no prejudicial error in the record, and the judgment is affirmed.