Southwestern Telegraph & Telephone Co. v. Fendley , 123 Ark. 197 ( 1916 )

Kirby, J.,

(after stating the facts). In Southwestern Telegraph & Telephone Company v. Murphy, 100 Ark. 546, the court in construing the statute prescribing the penalty, section 7948, Kirby’s Digest, said:

“The manifest purpose of the statute is to inflict a penalty on a telephone company, not for negligence or inattention in failing to repair its instrumentalities for supplying service, but for wilful refusal to furnish telephone connections and facilities without discrimination or partiality to all applicants who comply or offer to comply with the rules. The statute forbids discrimination, and mere neglect or inattention in repairing instruments does not constitute that. The most that the evidence tends to establish is negligence in failing to repair plaintiff’s telephone. There is nothing to show that this was prompted by any intention to deprive plaintiff of the use of his telephone, and for that reason we are of the opinion that the question of discrimination during that period should not have been submitted to the jury.”

The undisputed testimony shows that all the telephones upon the wires carried by the cable that was burned were disconnected and put out of service thereby, that the telephone company began work immediately to renew the cable and restore the service, working on the cable on the first three days after the fire; that the test from the caíble tu appellee’s residence on the 24th of November showed the ’phone connected, that it was again fixed on December 1, but the service was not good until it was repaired finally on December 8. The trouble resulted from bad connection of the wires in the cable or from defective wires and was remedied as soon as it could be located. The appellee stated that the manager of the telephone company was his 'friend and agreed every time when complaint was made to fix the ’phone immediately.

The delay in restoring the service was due to the failure sooner to locate the trouble and the testimony shows no intention upon the part of the telegraph company to discriminate against or refuse to furnish telephone connection and facilities to the appellee. The testimony at most shows no more than negligence on the part of the company in failing to repair the line, causing the delay in furnishing the service and does not tend to show there was any intention to deprive appellee of the use of his ’phone and is not sufficient to show a refusal to furnish telephone connection without discrimination or partiality and entitle appellee to recovery of a penalty therefor.

The court erred in not directing a verdict in appellant’s favor and the judgment is reversed and the cause dismissed.