102 Ark. 547 | Ark. | 1912
(after stating the facts). The telephone company has the right to make and enforce reasonable rules and regulations for the guidance of its subscribers, and, in case the subscriber refuses to obey such regulation, may refuse to furnish telephone service, without being guilty of discrimination, and such right was recognized by the court on the former appeal of this case. We held in addition, on the former appeal, that where a subscriber refuses to pay charges for past services but properly asked the telephone company to reinstate his telephone in his residence, his demand for reinstatement is not barred by his refusal to pay for past service which he claims he does not owe. Mr. Justice Battle, speaking for the court, said:
“A telephone company, being a public servant, can not refuse to serve any one of the public in that capacity in which it has undertaken to serve the public when such one offers to pay its rates and comply with its reasonable rules and regulations. It can not refuse to serve him until he pays a debt contracted for services rendered in the past. For the present services, it has a right to demand no more than the rate of charge fixed for such services. It transcended its duty to the public when it demanded more. (Citing authorities.)
“A tender or payment to the telephone company of its rate or charge for service or rent of telephone for any particular time and offer to comply with its reasonable rules and regulations would entitle the applicant to such service or rent. Should the telephone company incur a penalty by refusing to rent or render such service, it could prevent the increase thereof by rendering or offering to render the applicant such service.” Danaher v. Southwestern Tel. & Tel. Co., 94 Ark. 533.
The decision on the former appeal is the law of the case. Therefore, under the undisputed evidence as disclosed by the record, and as stated above, we think the present appeal is controlled by the decision on the former appeal.
Counsel for the defendant with great earnestness and with much force have undertaken to escape this conclusion. The effect of their argument, as we understand it, is that there is no discrimination under the statute where the defendant enforces an unreasonable rule against all who refuse to obey it, but that discrimination arises where the company enforces an unreasonable rule against some and not all, of its subscribers who refuse to obey it. The fallacy of their argument is that by such a course the defendant, by enforcing an unreasonable rule against all of its subscribers who refuse to obey it, could entirely abrogate the statute, release the defendant from the penalties expressly prescribed by the statute, and remit subscribers who refuse to obey its unreasonable rules to their remedy by mandamus or such other remedy as might be available under the common law. They contend that telephone companies under the common law are prohibited from making discrimination in the performance of the service required of them, and that section 7948 of Kirby’s Digest is merely declaratory of the common law. This may be true, but it is equally true that the object and purpose of the statute is to compel telephone companies to perform the duties required of them, both in supplying telephone service and in preventing discrimination to its subscribers. Having held on the former appeal that a telephone company can not refuse to furnish telephone connection to one until he pays a debt contracted for services rendered in the past, it seems to us' that it necessarily follows that the plaintiff is entitled to recover for the forty days during which her telephone was disconnected and telephone service was refused her. She was ready, willing and able to pay and did pay for the service, and was in the same situation as all other persons who had telephones installed in their residences.
In regard to the twenty-three days subsequent to the 8th of May, the defendant did render her services, but charged her fifty cents more than it did to other subscribers for residence telephones. They say they did this for two reasons: First, because she refused to pay their claim for past services, and second, because under their rules, they allowed no discount to subscribers who were in arrears for past services. It follows from the ruling in the former appeal that the defendant could not make a rule or regulation whereby they would charge a subscriber who was in arrears to them for past services a greater sum for telephone services than it did for those who had paid their bill. The evidence shows that all persons having telephones in their residences received a discount of fifty cents if they paid for the service before the 15th of the month. The plaintiff belonged to this class of persons, and it was a discrimination against her to charge her more than it did other persons who had telephones in their residences. See, also, Southwestern Tel. & Tel. Co. v. Murphy, 100 Ark. 540.
Telephone companies, by the necessities of commerce and by public use, have become common carriers of communications, and as such must supply all alike who are alike situated, and can not discriminate in favor of or against any one. The plaintiff, as above stated, was a resident of the city, and, as above stated, was ready and willing and able to pay for the reinstallation of telephone service in her residence and did pay for the same. Therefore, she was in a similar situation to all other persons who were receiving telephone service in their residences, and, as stated in our former opinion, the telephone company could have obviated the payment of a penalty in this case by rendering to the plaintiff the telephone service.
The judgment will be affirmed.
