Crouch v. Arnett , 71 Kan. 49 ( 1905 )

The opinion of the court was delivered by

William R. Smith, J.:

This was an action in mandamus, brought by plaintiff in error in the district court to compel the firm of Arnett & Hobart, doing business as the Iola Telephone Company, to replace in his residence a telephone instrument which, it is alleged, was arbitrarily removed therefrom by the company.

Evidence was offered by the plaintiff showing that defendants, when this controversy arose, had been operating a local telephone system in Iola and vicinity for about seven years, and that the residence in which Crouch lived had been supplied with an instrument during that time. Three other persons, however, had lived in the premises during the time previous to the occupancy of plaintiff. There were 460 patrons of the telephone company in Iola and vicinity, 26 of whom were outside the city limits. The company also maintained telephones in connection with the Iola exchange at Gas City, three and one-half miles east, and at La Harpe, three miles further distant.

The residence of plaintiff was situated on grounds adjoining the city but not within the corporate limits. The pole from which the wire extended into Mr. Crouch’s home was thirty feet from the house and situated within the corporate limits of Iola. A dispute arose between the company and Mr. Crouch respecting the payment of telephone charges, resulting in threats by the former to remove the instrument, but before it was taken out a payment was made, so that the question of the delinquency of the plaintiff is not a factor in the case.

Testimony introduced on behalf of the telephone company tended to show that telephones were installed in manufactories outside of the city — cement plants and brick-works — but that none of them was in the vicinity of Mr. Crouch’s residence, the nearest being about half a mile. The zinc smelter adjoining the city to the northwest, the ice plant, a laundry, the water-works company and the pest-house west of the city limits were also supplied with telephones. Instruments were also furnished at the residences of four persons outside of the corporate limits of Iola, but these persons either furnished or paid for their own lines and poles.

Defendants in error were granted by ordinance the right to construct a telephone line in the city of Iola, and to use the streets and alleys for the erection of poles.

A trial before the court, without a-jury, resulted in a judgment in favor of the telephone company, and plaintiff complains.

It may be conceded that defendants below, by devoting their property to public employment, and by putting it in the service of the public, thereby subjected it to the regulation of the legislature and control of courts to the same extent as other common carriers are controlled. (State of Missouri v. Bell Telephone Co., 23 Fed. 539; Delaware & A. Telegraph & Telep. Co. v. State of Delaware, 50 Fed. 677, 2 C. C. A. 1.) We also agree with counsel that such companies cannot lawfully discriminate between subscribers of.' the same class, and that a company or partnership doing a general telephone business in a city must treat impartially all persons whom they undertake to serve-. Also, when doing a general business outside a city, all patrons in the vicinity must be dealt with impartially. The question of fact tried and considered by the court, below was whether the telephone company was doing a general business outside of Iola and in the vicinity thereof. general finding of the trial court determined the question in the negative, and that the limits of the company’s general business outside the city did not embrace the plaintiff’s residence. While the company was serving several manufactories beyond the city limits, they were not in the class with the plaintiff, and the owners of residences outside the city who had telephones were supplied at their own expense or paid for the poles and wires used to connect them with the exchange. If Mr. Crouch had resided in the city his rights would have been clear. Being outside, a question of fact was presented whether in removing his instrument a discrimination was practiced on him — a right infringed which he enjoyed in common with others situated similarly. A telephone company operating wholly within the corporate limits of a city could not be compelled to supply instruments to residents beyond the boundaries of the town and make connections therewith. In this instance it did serve patrons outside of Iola, but the disputed question was whether Mr. Crouch, by reason of proximity and other conditions, was entitled to equal rights with them. This was to be determined from the testimony of witnesses and was peculiarly within the province of the trial court. That there was some evidence to sustain the judgment of the court below cannot be denied. /

The judgment is affirmed.

Greene, Burch, Mason, JJ., concurring.