Rose v. New York Telephone Co.

GUY, J.

(dissenting). The defendant appeals from a judgment in favor of plaintiffs for the amount of a penalty alleged to have been incurred through defendant’s violation of section 103 of the Transportation Corporations Law (Laws of 1909, c. 219 [Consol. Laws, c. 63]), which provides that:

*1023“Every such corporation shall receive dispatches from and for other telegraph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by individuals for transmitting dispatches as established by the rules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such dispatch and entitled to have the same so transmitted. * * * ”

The evidence shows that plaintiffs had previously entered into an agreement with defendant for telephone service at their place of business at the monthly rate of $4; that they had mailed to defendant checks in payment of the rates for the months of July and August, 1913, which checks had been retained and used by defendant, but, through the negligence or carelessness of defendant’s clerks, had not been credited to plaintiffs; that on August 25, 1913, defendant cut off plaintiffs’ telephone connection and refused to receive further messages from plaintiffs, stating as a reason therefor that plaintiffs had not paid their July bill; that plaintiffs’ representative thereupon called upon the manager of defendant and showed him the canceled check for said payment; that defendant’s superintendent then promised to fix it up; that the following day plaintiffs were again refused service; that plaintiffs’ representative again called at defendant’s office, spoke to defendant’s manager, displayed the canceled checks given in payment for the bills of July and August, and defendant’s bookkeeper then promised to see that plaintiffs were properly credited with the amount; that nothing was then done, however, to restore plaintiffs’ telephone service, and plaintiffs were deprived of the use of the telephone until September 5, 1913.

While the neglect and refusal of defendant to furnish telephone service to plaintiffs might perhaps furnish the basis of an action for breach of contract, it does not constitute a cause of action for the recovery of a penalty, inasmuch as there is no evidence of bad faith. The purpose of the statute is to prevent intentional discrimination on the part of telephone or telegraph companies in the manner of rendering service, and not to impose liability for mere cases of negligence on the part of their employés. While this construction of the statute would seem to practically nullify the statute, because of the difficulty of establishing bad faith on the part of a corporation, it is supported by an unbroken line of authorities. In Kevand v. New York Telephone Co., 159 App. Div. 628, 145 N. Y. Supp. 414, the learned court (Appellate Division, Fourth Department, November Term, 1913) in construing this section of the statute say:

“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 jury when he said: ‘For, as X said before, notwithstanding the service may have been discontinued without right, if the defendant honestly believed that it had the right to discontinue that service, then there can be no recovery, because in that event there would be good faith on the part of the defendant, and it is only where there is absence of good faith, where bad faith eatists, and bad faith calls for the action that is taken and prompts that action, and it is only then that the penalty declared by statute *1024is recoverable of the defendant. * * * Plaintiff must show to your satisfaction that he had a right to that service and that the defendant denied him that service in bad faith, and not because it believed it had a right to discontinue the service.’ ”

See, also, Wichelman v. W. U. Telegraph Co., 30 Misc. Rep. 450, 62 N. Y. Supp. 491; Meyers v. W. U. Telegraph Co., 82 Misc. Rep. 266, 143 N. Y. Supp. 574; Saltzberg v. Telephone Co., 159 App. Div. 51, 144 N. Y. Supp. 309; Cumberland Telephone & Telegraph Co. v. Kelly, 160 Fed. 316, 87 C. C. A. 268, 15 Ann. Cas. 1210.

There is also grave doubt whether the statute is not limited in its application, so far as telephone companies are concerned, to the receipt and transmission of messages at public offices or pay stations, established for the transaction of business with the general public, and whether, being penal in its character, and, therefore, to be strictly construed, it can be extended to cover breaches of contract to install telephone connections in private houses or places of business of subscribers. See In re Baldwinsville Telephone Co., 24 Misc. Rep. 221, 53 N. Y. Supp. 574; Pollard v. Mo. & Kansas Telephone Co., 114 Mo. App. 533, 90 S. W. 121.

The judgment should therefore be reversed, and the complaint dismissed. \