Northern Indiana & Southern Michigan Tel. Telegraph & Cable Co. v. People's Mut. Tel. Co. of La Grange

• Decision Date: 04 April 1918
• Docket Number: No. 23088.,23088.
• Citation: 187 Ind. 486,119 N.E. 212
• Parties: NORTHERN INDIANA & SOUTHERN MICHIGAN TELEPHONE, TELEGRAPH & CABLE CO. v. PEOPLE'S MUT. TELEPHONE CO. OF LA GRANGE et al.
• Court: Indiana Supreme Court

187 Ind. 486

119 N.E. 212

NORTHERN INDIANA & SOUTHERN MICHIGAN TELEPHONE, TELEGRAPH & CABLE CO.

v.PEOPLE'S MUT. TELEPHONE CO. OF LA GRANGE et al.

No. 23088.

Supreme Court of Indiana.

April 4, 1918.

Appeal from Circuit Court, La Grange County; James Story Drake, Judge.

Action by the Northern Indiana & Southern Michigan Telephone, Telegraph & Cable Company against the People's Mutual Telephone Company of La Grange, Ind., and the Home Telephone & Telegraph Company of Ft. Wayne, Ind., and the Public Service Commission of Indiana to modify or enjoin the enforcement of an order of the latter. Judgments for defendants, and plaintiff appeals. Reversed in part and affirmed in part.

See, also, 184 Ind. 267, 111 N. E. 4.

T. E. Ellison, of Ft. Wayne and Hanan, Watson & Hanan, of La Grange, for appellant. L. A. Foster and F. J. Dunten, both of La Grange, for appellees.

HARVEY, J.

The Home Telephone & Telegraph Company of Ft. Wayne, Ind., an appellee herein, may be described, for the purposes of this case, as a long-distance telephone company, having lines reaching numerous points in Indiana and adjacent states. The Northern Indiana & Southern Michigan Telephone, Telegraph & Cable Company, appellant, may, for like purposes, be described as a company doing a local business at La Grange, Ind., and its vicinity, and having a contract with said Home Company for long-distance service over the latter's lines. This contract is, in terms, exclusive, in that all of the Home Company's long-distance messages to La Grange and vicinity are to be communicated through the Northern Company's exchange at La Grange, and all the Northern Company's long-distance messages are to be communicated over the lines of the Home Company. The People's Mutual Telephone Company of La Grange has an exchange in La Grange, with which are connected several exchanges located in towns of La Grange county, owned and operated by other local companies, and all interested in the People's Company. The latter exchanges have lines radiating in all directions and serving their respective neighborhoods. The People's Company thus serves about 1,500 patrons, but had, at the time hereinafter mentioned, no long-distance connections; and, desiring such long-distance connections, the People's Company petitioned the Public Service Commission of Indiana for an order providing that the exchange of the People's Company be connected with the long-distance lines of the Home Company. The Northern Company, being notified of said petition, appeared before said commission and filed a cross-petition, protesting against the granting of said petition, and asking that the People's Company be required to do its long-distance business through the Northern Company's exchange in La Grange.

After a hearing, the commission, on August 4, 1911, entered an order reciting the foregoing facts and, in addition thereto, that public convenience and necessity required that physical connection be made between the Home Telephone Company's lines at the town of La Grange and the People's Mutual system of lines; that such physical connection can be made without substantial detriment or irreparable injury to the Home Telephone Company or the users of its equipment; that the Home Telephone Company shall provide for and make at the expense of the People's Mutual Company, such physical connection, and furnish long-distance service; and that the Home Company shall file with the commission, subject to its approval, a schedule of rates and charges for such service. The commission further found and adjudged that the systems of poles and lines of the People's Mutual Company and its connecting lines are not maintained at a proper standard of efficiency, and that before such physical connection is made the People's Company and its connecting companies shall repair and improve their said systems of lines and poles, and change all grounded lines to metallic circuits, and that, after an inspection has been made by the commission, it will issue a certificate of approval, if found in satisfactory condition, and that physical connection shall be made within 10 days after the commission shall issue its certificate of approval of the condition of the lines. The petition further ordered that the cross-petition of the Northern Indiana Company be in all things denied. The commission's order provided that it should be in effect for a period of five years. The commission, however, reserved the right, either on its own motion or the complaint of any interested party, to modify or set the same aside.

Thereafter appellant filed in the court below a complaint in two paragraphs, asking that the judgment of the commission be so modified as to order that the long-distance connection of the People's Company with the Home Company be made through the exchange of appellant at La Grange, and asking an injunction preventing the commission, the People's Company, and the Home Company from doing anything to carry out the order of the commission without recognizing the rights of appellant. The second paragraph of this complaint contains more specific and detailed allegations of substantially the facts stated in the first paragraph.

The commission and the People's Company, defendants to said complaint, each demurred to each paragraph thereof. Said demurrers were sustained and judgment rendered thereon in favor of each of said defendants as against appellant.

From this judgment this cause was brought here on appeal, and the appeal was by this court dismissed for the reason that the cause in the court below had not been entirely disposed of, but was pending, undetermined as to the Home Company, the third defendant. Northern Ind., et., Co. v. People's Mutual, etc., Co., 184 Ind. 267, 111 N. E. 4. The court below thereupon overruled the demurrer of the Home Company to each paragraph of complaint. The Home Company answered the complaint by a denial, and the cause was submitted for trial; whereupon the court announced that no remedy, under the circumstances, could be granted appellant as against the Home Company, and the court dismissed said cause as to the Home Company.

The errors now here assigned are: The sustaining of the demurrers of the commission and of the People's Company to the complaint, and the dismissal of the cause against the Home Company, and the overruling of the appellant's motion to modify the order of dismissal.

The complaint alleges there is manifest error in the proceedings of the commission, and that the commission improperly and wrongfully made and entered the order.

[1] The complaint does not point out any lack of jurisdiction in the commission nor any irregularity in its procedure. All presumptions are indulged in favor thereof. Pitts., etc., Co. v. R. R. Commission, 171 Ind. 189, 86 N. E. 328. The complaint, by indefinite allegation, attacks the corporate existence and organization of the People's Company, and some of its associated and connected companies, and alleges that neither of said companies has issues any capital stock, or has “means,” and says that neither the persons nor companies in said aggregation constitute or operate a public utility; that they are not authorized so to operate in serving the general public, which has at all times been excluded from service. Waiving all question of the right of appellant to this question, the corporate existence, powers, or authority of any of said companies, we find sufficient in the complaint to overcome said allegations. The complaint embodies appellant's answer filed with the commission, wherein appellant alleges that the People's Company and several of its connecting local organizations are incorporated under the laws of Indiana, and states details of organizations and the purposes thereof. The complaint alleges that the People's Company has a franchise from the town and county of La Grange; that it and its associates are competitors of appellant, and have sought and received and transmitted for hire messages that would otherwise have been transmitted over appellant's lines. Thus it appears that the People's Company and its associate companies are, for the purpose of this case, corporations authorized and offering to perform public utility service....