Knesek v. Crown Point Telephone Co.

DAUSMAN, C. J. (after making the foregoing statement) : [605] If the plaintiff had called through the medium [606] of her own instrument and asked to be connected with the fire station, and if that service had been denied her, then the mere denial of her request would have constituted a prima facie case of discrimination. Central Union Telephone Co. v. Fehring (1896), 146 Ind. 189. In that event, it would have devolved upon the defendant to show by its answer the justification, if any, for its refusal to make the connection. There is no averment in the complaint, however, that the plaintiff was entitled to use the telephone in the office of the Crown Point Register Company, either in person or by her agent; and there is no inference or presumption to that effect. There is no presumption that the defendant had established a custom whereby its subscribers were privileged to relay messages in the manner attempted by the plaintiff. The penalty is recoverable only for discrimination; and no discrimination is shown. Judgment affirmed. McMahan, J., not participating.