145 N.Y.S. 414 | N.Y. App. Div. | 1913
Lead Opinion
This action is brought to recover statutory penalties which plaintiff claims defendant incurred under section 103 of the Transportation Corporations Law (Consol. Laws, chap. 63; Laws of 1909, chap. 219) as the result of cutting off his telephone service on the 1st, 2d and 3d days of February, 1912. Section 103 of the Transportation Corporations Law, which it is urged defendant violated, provides as follows: “ Every such corporation shall receive dispatches from and for other telegraph or telephone lines or corporations, and from and for any
Plaintiff is a physician and surgeon residing and practicing his profession in the city of Syracuse, and defendant is a public service corporation furnishing- telephone service in such city and elsewhere. On July 25, 1905, the respondent entered into a contract with the Central New York Telephone and Telegraph Company, defendant’s predecessor, to place a telephone in his office at 503 University Block in the city of Syracuse, respondent agreeing to pay for the use thereof and for local service at the rate of forty-eight dollars per year. Said contract contained the following provision: “ Either party may terminate this contract at or after the expiration of the first year by not less than ten days’ previous notice in writing to the other party.”
Subsequently to the making of said contract the defendant company succeeded to the rights of the Central New York Telephone and Telegraph Company thereunder. The rate of forty-eight dollars provided by said contract was a special one accorded to physicians. Shortly before the discontinuance of service to plaintiff of which he complains and for which he seeks to recover a penalty, the defendant company had inaugurated a change of rates abrogating the special rate at which it had theretofore furnished service to physicians and rendering all direct connection service at a uniform rate of sixty dollars a year. On January 19, 1912, in accordance with the terms of the contract with plaintiff above quoted, the defendant company served upon plaintiff a notice to the effect that the rate which he had theretofore paid was not in accordance with the standard rate for such class of service as he had enjoyed, and that thereafter a uniform rate would be charged to all users, including physicians, of sixty dollars a year. Said notice requested plaintiff to enter into a new contract in accordance with such rates, as amended, and
The plaintiff contends that defendant’s action in discontmuing service was in bad faith, and that defendant’s refusal to permit him to talk over his telephone with patients and others
Moreover, it seems to me that, applying the doctrine that the statute in question must be strictly construed in favor of the defendant company, the plaintiff failed to show facts sufficient to bring himself within the statute. The statute provides that “every such corporation shall receive dispatches * * * from and for any individual, and on payment of the
But indulging in what seems to me the unwarranted assumption that the discontinuance of plaintiff’s service constituted a violation of the statute referred to, I think there are other reasons which compel a reversal of the judgment rendered. The learned trial court submitted the case to the jury upon the sole question as to whether or not the evidence given upon the trial indicated bad faith on the part of the defendant company, and I believe the court in this respect correctly charged the
From a careful perusal of the testimony produced upon the trial I am unable to find any evidence sufficient to show bad faith on the part of the defendant company. It surely had a right to discontinue the contract on the ten days’ notice, and at the time plaintiff’s service was cut off the defendant was acting wholly within its rights. It is entirely apparent that defendant’s refusal to furnish plaintiff the service of which he complains grew out of a mistake and was in no manner due to bad faith on the company’s part. The statute does not contemplate a penalty unless partiality, bad faith or discrimination is shown. The record here, I think, is barren of either. Whatever bad faith there was seems to have been entirely on the part of the respondent. His service was cut off January 30, 1912. On the nineteenth day of January previous he had received notice that unless he conformed to the amended rates
I am of the opinion that the evidence fails to show any partiality, bad faith or discrimination on the part of the defendant company. In the absence thereof there can be no recovery of a penalty herein.
Mr. Justice Foote, in a well-considered opinion in the recent case of Wysocki v. Erie Railroad Co. (155 App. Div. 798), clearly states the rule in relation to actions for a penalty. Referring to another penal statute, Mr. Justice Foote says: “ This is a penal statute. To recover under it plaintiff has the burden of bringing the case clearly within its terms, and defendant is entitled to the benefit of any reasonable doubt of the application of the statute to the case as made.”
In Wichelman v. W. U. Tel. Co. (30 Misc. Rep. 450), which was an action to recover a penalty under section 103 of the Transportation Corporations Law for failure on the part of the defendant to transmit messages with impartiality and in good faith and in the order in which they were received, Mr. Justice Leventritt thus states the rule: “The provision invoked is penal and must be strictly construed. (Romberg v. Kouther, 27 Misc. Rep. 227.) The imposition of the penalty must be limited to acts of partiality, bad faith, or preference, in the order of transmission. To sustain his position the plaintiff would import into the statute other elements unwarranted
And in the case of Gifford v. Glen Telephone Company (54 Misc. Rep. 468, 470), also involving an action for a penalty under section 103 of the Transportation Corporations Law, Mr. Justice McLaughlin thus interprets the statute: “ The statute imposes the penalty not for an error of judgment of one of defendant’s operators, a defective instrument, or a misunderstanding as to whether a required charge for a message has been paid, but solely for the refusal to transmit dispatches with impartiality, good faith and in order of their reception, after payment of the usual charges as established by rules and regulations of such corporation.”
This case is entirely lacking in any evidence to show any bad faith on the part of the defendant company, and without such evidence the plaintiff cannot recover the penalty provided by the statute.
The judgment and order appealed from should be reversed and judgment absolute ordered for the defendant.
All concurred, Robson and Lambert, JJ., in result only, except Kruse, P. J., who dissented in a memorandum and voted for affirmance.
Dissenting Opinion
I dissent upon the following grounds:
1. I am of the opinion that a refusal by a telephone company in bad faith to send a prepaid message at all is as much a discrimination within the statute as where it shows partiality in sending messages out of the order in which it receives them; also that the statute applies to a message whether it is offered at a public station or through a private telephone connected with the public station, and that, I think, is so whether the payment is made for the specific message offered and refused, or included in a payment for messages covering a given period of time.
2. Bad faith may be found from the evidence in the record.
I think the learned trial judge clearly and correctly submitted the case to the jury and that his order in refusing to set the verdict aside should not be disturbed.
Judgment and order reversed and judgment directed for the defendant dismissing the complaint, with costs, including the costs of this appeal.