Southwestern Telegraph & Telephone Co. v. Sharp & White

Hart, J., (¡after stating the facts). This snit was brought under an act approved February 25, 1913. See Acts 1913, p. 346. Section 1 of that not is ¡as follows: “Section 1. That ¡section 7948 of Kirby’s Digest shall be ¡amended so as to read as f ollows: “Section 7948. 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, within ten days after written demand therefor; provided, such applicants comply or offer to comply with the reasonable regulation 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 a penalty of one hundred dollars, ¡and five dollars per day for each day from the expiration ¡of said notice until said ¡demand is complied with or suit is instituted for penalty for f ailure to comply with said demand, for such discrimination, 'after 'oompliaiiice or offer to comply with the reasonable regulation's of such company and the time to furnish ithe same has elapsed, to 'be recovered by the applicant whose ¡application is so neglected or refused. And iany persons denied such telephone facilities shall also have the right to proceed by mandamus or other proper remedy to enforce the furnishing of same and the courts shall hear ,sucth applications either in vacation or in term time and make such temporary orders relative to the furnishing of such facilities as the facts may justify, 'and may enforce compliance therewith, until such orders are vacated by order of the court or the judge at chambers, or such suit is finally determined.” In the case of the Southwestern Tel. & Tel. Co. v. Danaher, 102 Ark. 547, we held that telephone companies have the right to make ¡and enforce reasonable rules and regulations for the guidance of their subscribers and, in case the subscriber refuses to obey such regulations, may refuse to furnish telephone service without being guilty of discrimination. The statute under consideration there was practically the same as that in this case except in regard to the penalty prescribed for its violation. (1) Being public service corporations, telephone companies take land hold their charters subject to the obligation of rendering service at uniform and reasonable rates and without discrimination. In recognition of the right of the telephone company to prescribe and enforce reasonable rules and regulations for the guidance of its subscribers, this court has held that a telephone company may require its charges to be paid in advance and may extend credit for such charges to isueh persons as it may deem desirable, without rendering itself liable to a charge of discrimination. Yancey v. Batesville Telephone Co., 81 Ark. 486. (2) It is the general rule that telegraph and telephone companies may make rules and regulations which require that charges shall be paid for a reasonable time in advance by their subscribers and may enforce such regulations by the refusal of service to persons who do not comply therewith. See case note to 34 Am. & Eng. Ann. Gas., at page 119. (3) In the ¡case (before us there was no refusal of credit to plaintiffs hut under the rules and regulations adopted by the telephone company subscribers were required to pay for all long ¡distance messages which originated from the subscriber's telephone. The plaintiffs refused to pay for long distance messages originating from their office telephone unless these messages were ■from themselves or were O. K’d. by them. We think the regulation ¡adopted by the telephone company wias a reasonable one, ¡and that it had a right to enforce it. The undisputed evidence shows that Jonesboro was a growing city; that there were 1,033 subscribers to the Jonesboro exchange and .about 200 service stations in the country; that they were also connected with the Nettleton exchange which had about 200 telephones in town and Country; ‘that on ¡account of the number of subscribers it was ¡difficult for the operators to recognize the voices of the persons making long distance calls and in order to keep the telephone company from ■being imposed upon it ¡was nedessary that long distance ¡calls be ¡charged to the telephone from which they originated. It was ¡also shown that it was an easy matter for the subscriber to control the use of his phone. Of course when the plaintiffs were in their ¡office they could personally control it; ¡and when they were out the telephone could be locked in the desk so that no ¡one else could use it. Hence we are ¡of the opinion that the rule adopted by the telephone company was a reasonable one ¡and that it had a right to enforce it. It is contended by counsel for the plaintiffs that, however just ¡and proper the rules were in themselves, they were ¡so enforced as to constitute ¡an unjust discrimination against them. We do not think the evidence in the record shows that the rule ¡sought to be enforced against the plaintiffs was ignored in regard to others in like situation. In ¡order to ¡sustain this issue plaintiffs introduced two witnesses each of whom stated that at one time ¡the ¡company had charged his office with a message which had not been authorized by him and that he refused to pay it. The evidence on the part of the telephone company tends to ¡show that they uniformly attempted to enforce this rule 'and the mere fact that they did not enforce it on the two occasions in question does not amount to a discrimination against the plaintiffs. (4) It was also shown by the plaintiffs by several, other witnesses that 'frequently the long distance operators asked them to O. K. messages which came from their phones. The mere fact, however, that in some instances the long distance operators requested subscribers to O. K. messages was not sufficient to show that the rule under consideration had been abrogated or wias not being enforced. The operators, at the times mentioned, may have had a suspicion that the subscriber was being imposed upon land did this for the purpose of protecting the subscriber. At any rate, we do not think the fact that the long distance operators would sometimes request that messages be O. K’d. by subscribers is sufficient to show either- an abrogation of the rule or its nonenforcement. It was ¡also shown by plaintiffs that the company frequently received calls which were “reversed.” For instance, a person would be in Jonesboro and would desire to talk to his home or office in Paragould, Arkansas, and would request the long distance operator to call Ms office or home and charge the message to that end of the line. This testimony did not tend in any way to show that the rule in question had been abrogated or was not being enforced. The reversing of calls had nothing whatever to do with the rule in question. It was an entirely different rule and adopted for an entirely different purpose. The testimony on the part of the telephone company, wMch was not disputed, tended to, show that this practice was permitted for the benefit of its subscribers; that when the operator became satisfied that the person talking was a subscriber to a phone in ¡another town, he was permitted to have his message charged to -his home phone; that the company so far had not lost 'anything- (by 'adopting this rule; .and that if as the exchange grew larger it 'should be found that this rule operated injuriously to the best interest of the company or should not be beneficial to tbe .subscriber, it would be abrogated. The record shows that the agents of the defendant tried in every way to induce the plaintiffs to 'accept service in accordance with its rales .and regulations -and never 'at any time refused to iserve them until they had refused to comply with its rales 'and regulations in regard to the use of the long distance telephone. We think the undisputed testimony shows that the telephone company sought to enforce the rale under consideration tagainst its subscribers alike -and that it only restricted the use of the long distance telephone when requested to do so by its subscriber or when they refused to obey the regulations in regard thereto. It follows that the court erred in not directing >a verdict for the defendant und for that error the judgment will he reversed; and, inasmuch 'as the case appears to have been fully developed, tbe cause of action of plaintiffs will be here dismissed.