520 SOUTHEAST ARK. TEL. & Pow. Co. v. ALLEN. [191 SOUTHEAST ARKANSAS TELEPHONE & POWER COMPANY v. ALLEN. 4-3976 Opinion delivered October 14, 1935. 1. CORPORATIONS—SUCCESSION TO CORPORAT ION .—The mere fact that one corporation succeeded another in the conduct and management of a business would not make it liable for any debt or obligation of its predecessor. 2. TELEGRAPHS AND TELEPHONES—FAILURE TO GIVE SERVICE—EVIDENCE.—In an action to recover statutory penalties upon a telephone company's failure to connect and give service, admission of plaintiff's testimony that defendant was successor to another telephone company held not error. 3. TELEGRAPHS A ND TELEPHONES—RULES. — A telephone company can • make and enforce reasonable regulations governing its business and dealings with its customers, and to enforce such rules by requiring that prospective customers comply therewith as a condition precedent to rendering service. 4. TELEGRAPH S AND TELEPHONES—RU LES.—A telephone company could not require a customer to surrender a claim for statutory penalties as a condition upon which it would render service to the customer. 5. TELEGRAPHS A ND TELEPHONES — WRITTEN NOTICE FOR SERV IGE. —In a customer's actfon to recover the statutory penalties against a
ARK.] SOUTHEAST ARK. TEL. & POW. CO . v. ALLEN 521 telephone company for failure to connect a telephone and to give service, admission of testimony that plaintiff had given notice through a third person not an officer held not erroneous, since there is no requirement of service by an officer, and because defendant's manager . admits having received the notice. 6. APPEAL AND ERROR-PRESUMPTION FROM ABSENCE OF INSTRUCTIONS. —The Supreme Court will presume that instructions given that were not abstracted were correct and supplied alleged deficiencies in instructions criticized in appellant's brief. Appeal from Grant Circuit Court ; ii. B. Means, judge ; affirmed. Sid J. Reid, for appellant. Isaac McClellan and IV. H. McClellan, for appellee. BAKER, J. W. T. Allen sued the Southeast Arkansas Telephone & Power Company for the penalties provided for in § 10,251 of , Crawford & Moses ' Digest, upon failure of the telephone company to connect the . telephone in - his residence with the telephone exchange, and tO give him service. He alleged that he had been a renter of the telephone for many years, but that the telephone at his residence had been disconnected since August 8, 1931, although his*rentals were then paid up and in advance. On August 26, 1933, after repeated demands, he made demand in writing for service, and offered to comply with the requirements of the telephone company, but the company discriminated against him, refused to give him any service, and by reason thereof he was entitled to the penalties provided in the above arid foregoing section of the statutes, amounting to $100, and $5 per day, for 165 days of alleged delinquency, on the part of the telephone company. The answer to the complaint made specific denials of the allegations set forth therein. It was also pleaded that the defendant had adopted certain rules for the operation of its business, among these was a requirement for the payment of an installation fee kind monthly rental in advance. • Upon these issues the case was developed, but the abstract furnished us contains a report meager in -details, with very little order or continuity. From it, and from statements made in argument, we get the following facts :
522 •SOUTEA:ST ARK. TEL..8:, Pow. CO. v. ALLEN. [191 Consumers Utilities Company was a prior owner of the telephone properties.. It served appellee, but became hankrupt. Its exchange and other properties were sold, and appellant became the purchaser. The Consumers Utilities Company had required customers to pay at least one month's rental, of $1.50, in advance, and also made an installation ch . a ..r ge. We do not know what this fee or charge was. It appears that the plaintiff had paid to the Consumers Utilities Company $20. Of this amount, $2, if not more, was, a payment s in advance,. and this subscriber was insisting that the new company, appellant here, after its purchase' of the properties, should give him credit .for this payment. The appellant at the time of.its purchase took over all . of the . properties belonging to , the former compariY, including bills and accounts receivable, but it did not assuine the obligations 'of the former company. • The appellee filed his claim in the bankruptcy court for some am:hint, not shown in this record; which he-al-.leged was due him by the Consumers UtilitieS Company. On account of the attitude . of 'the plaintiff and his insistence, even at the time of .the trial, that he .had paid the telephone company in advance, appellant seriously objected and briefs the proposition that appellee was. permitted to testify that the appellant is a successOr to Con-.sumers Utilities Company. The appellant might as well have admitted this fact. No . liability would have followed on account thereof. The..mere 'fact that one company succeeded another in the conduct and management of the business would not make' it liable for any debt or Obligation of the predecessor: • The question and 'answer could have implied nothing more than the fact that one corn-pahy succeeded or followed another in the same, business; that is to say, the question and answer • showed the relative order in time in which the twO -coMPanies were engaged in the -telephone business at Sheridan and surrounding community.- If the question and 'answer meant anything more than that, there is not Sufficient abstract of related : facts to indicate it. Hence there was no error in the admission of this testimony.
ARK.] SOUTHEAST ARK. TEL. & POW. CO . V. ALLEN: 523 The undisputed 'testimony, s however, shows that the plaintiff made a written demand. upon the aPpellant • for service, and this • demand • was • 'made by letter; dated-August 26, 1933, delivered, according to the testimony, on the same date, by Ralph Wilson, to L. D. Murphy; who was _then the manager : of the telephone company. He admitted the receipt of the letter. • .L. On September, 1933, the appellee and W.-A..Hines met, and Hines, an employee of the appellant, solicited Allen to become a subscriber, and he testified that Allen refused, and said that the company_ owed him :money ; that he refused to comply with the advanced rental ,requirement, and refused to pay the installation charge. In response to -this testimony, the appellee, however, testified that he told Hines that he would pay the rentals in advance, but that ,Hines advised him that he would have to pay the advanced rentals and installation. fee and, "drop this thing,". that is, his claim for penalties, in oyder to . get.the service. Appellant complains that it , was not permitted to, show its rides and . regulations. Hall, one , of appellant's witnesses, testified that itS rules and regulations were With the 'referee at Little Rock. By that statement We Understand the appellant tOcontend that it was following the rules and regulation§ of the Consuiners Utilities company,- a bankrupt.. The appellant might, if it so desired, have effectively adopted its.Predecessor's rules sand „ regu-lotions as its own rides :and regulations. But there iS na testimony it didthi g. • • The .court, howeer, permitted the coMpany tO prove that it operated under a bu§iness cuStom, that all - cuStomers must pay rentals in 'advance and' must tidy installation charges. The proof . Was undiSputed:' Therefore; .the 'only rule- appellants insisted 'upon was eStah-fished. Tbeir rule as to payment of . rentals in .adVance does not appear to• unreaSonable, • but Teasonable and enforceable: In this eaSe; hOWever, Ve do nOt see' the neeessity . or i.. ason -for an installation charge against the' appellee.. • •. `rid§ is particularly true when it is. 'rernembered that the4elephone had been in . the appellee's house, installed,
524 SOUTHEAST ARK. TEL. & POW. CO . v. ALLEN. [191 for eighteen years, but, if it were meant by an installation charge, that there should be some fee paid for the new connection, and the amount was reasonable, the charge might well have been made. These matters are not more fully developed. . These statements in regard to the installation charge must be treated as speculation, because of the meager facts abstracted for our cOnsideration, we are unwilling to be committed to a proposition of correctness of such charge as may have been contemplated. We are only attempting to sa.y that the appellant had a right to make and enforce reasonable rules and regulations governing and controlling its business and dealings with its • customers, and to enforce such reasonable rules by requiring that prospective customers comply therewith, as a condition precedent to the delivery of service. Yancey v. Batesville Telephone Co., 81 Ark. 486, 492, 99 S. W. 679; S. W. Tel. & Tel. Co., v. Sharp & White, 118 Ark. 541, 545, 177 S. W. 25 ; Southwestern Telephone Co. v. Dana-her, 238 U. S. 482, 35 S. Ct. 886, L. R. A. 1916 A, 1208. The foregoing was the only rule of the telephone company, so far as appellant has shown us, of any importance to a proper settlement of this case. Appellee offered to comply with this rule. He says that he was prevented from doing so, by a requirement that he surrender his right to sue for penalties accruing to him by reason Of The alleged 0iscrimination. The telephone companY did not have the right to require him to yield or surrender any claim for penalties as a condition upon which it wonld render him the service. It is argued also that it was error for the court to permit the appellee to prove that he had givol this written notice, by having the same served or delivered by Ralph Wilson. This contention is without merit, because of the fact that it is not only in testimony, given by the appellee, that he wrote the letter, signed it, gave it to Wilson for delivery to the telephone company, but the manager of the telephone company admits the receipt of this notice and demand. There is .no legal requirement that such notice shall be served by any officer, or that
ARK.] SO -CITHEAST ARK. TEL. & Pow. CO. v. ALLEN. 525 the return of any officer would be prima facie evidence of serVice. • It is argued also in regard to some of the instructions that the• court did not state therein that the jury should find the facts only upon a preponderance of the evidence:. This is urged as to instructions NO. I . 'and No. 2, given- at request of plaintiff. It was also . suggested as error that the court did hot tell the jury that plaintiff must comply with all reasonable rules before he could recover. Whatever merit there may have been in these criticisms of . the instructions does not appear. Other instructions givemmay have 'covered the suggested deficiencies: Appellant does not-contend there were not other instructions. The legal presumption by Which we are bound is that other instructions were correct -and met or supplied any alleged deficiencies in those criti. cised in the brief. Sovereign Camp, W. 0. W. v. -Condry, 186 Ark. 129, 52 S. W. (2d) 638 ; .Mo. Pac. Railroad Co. v. Treece, 188 Ark. .68, 64 S. W. (2d) 561 ; Standard Oil Co. v. Richerson, 188 Ark. 882, 67 S. W. (2d) 1003 ; Bea-son v. Withington, 189 Ark. 211, 71 S. W. (2d) 461 ; Fries v. Phillips, 189 Ark. 712, 74 S. W. (2d) 961. It is also argued that the court erred in not allow- inw ''' the appellant the privilege of showing by testimony of jurors Warren Douglas and Wilbur Shearer that they were employed by plaintiff, and that they failed to disclose that fact on direct examination by the court and on voir dire. This record is not abstracted. We cannot tell from what is furnished us What was asked any juror, nor what answer any juror made. Nor is there any evidence that any juror fraudulently imposed himself upon the court or parties to the litigation. Gribble v. State, 189 Ark. 805, 75 S. W. (2d) . 660 ; Newton. v . State, 189 Ark. 789, 75 S. W. .(2d) 376. . This proposition was fully discussed in the Newton case just cited. It is unnecessary to reargue the matters there set out. Only one other matter deserves to be mentioned. That is that the appellee at one time sent his check to the appellant company as an advanced fee for service. The check, however, instead of being payable to the ap-
526 [191 pellant, was payable to the Consumers Utilities Company, then out of business. The cheek was held for a time, and then returned to the appellee.. It must be recognized that the check .should have been-payable to the• defendant company, apd we presume that • the errdr the designation of the payee is the reason for the return:of the check. It does not appear, however; that Upon the return of the check to the appellee any explanation was made as to why it was returned, nor that any request was made- to correct the check by naming the appellant as the payee. . . . This presentation of this controversy may Appear to the reader as somewhat pointless and_ disdonnected, shot through with uncertainties and speculations, but it is our best effort to arrive at 'and state the • ssues from the presentation made to us upon . the. briefs, and to decide them. We must assume that all Matters counsel desire to have us consider have been presented. • - Appellant has shown us no reason or -cause for the reversal of the judgment, and we Must therefore assume there was no error.- It is affirmed. •
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.