Stephens v. Ohio State Tel. Co.

• Decision Date: 14 February 1917
• Docket Number: 166.
• Citation: 240 F. 759
• Parties: STEPHENS et al. v. OHIO STATE TELEPHONE CO.
• Court: U.S. District Court — Northern District of Ohio

240 F. 759

STEPHENS et al. v. OHIO STATE TELEPHONE CO.

No. 166.

United States District Court, N.D. Ohio, Western Division.

February 14, 1917

[Copyrighted Material Omitted]

Marshall & Fraser, of Toledo, Ohio, for complainants.

L. T Williams, of Toledo, Ohio, for defendant.

J. A Cline, of Cleveland, Ohio, for Local 245, International Brotherhood of Electrical Workers.

H. W. Fraser, Sp. Atty., of Toledo, Ohio, for the United States.

KILLITS District Judge.

December 12, 1916, A. C. Stephens and others, each claiming a cause of action similar in character and occasion to that offered by every other, and alleging that they were suing in a representative capacity in behalf of numerous other persons similarly situated, filed a complaint in this court against the Ohio State Telephone Company, a corporation organized under the laws of Ohio, and doing business in Toledo, of which city each of the complainants is a resident.

The complaint asserts that the defendant is engaged in the business of transmission of messages to points within and without the state of Ohio over telephone lines and cables of its own extending into neighboring states, and through its connections with other companies, and that each of the complainants, and each of the numerous persons in whose behalf also the complainants profess to act, are patrons of said telephone company, with an interest as such in the maintenance of its facilities for interstate communication by virtue of their several contracts with defendant, whereby complainants, severally, are entitled to enjoy local and long-distance telephone facilities to points within and without the state of Ohio.

It is further alleged that the defendant is obligated, by the terms of its charter and franchise for the use of the streets of Toledo, to furnish adequate facilities for telephonic communication to points in the city and within and without the state of Ohio to all persons willing to pay the fixed charges prescribed for such services by the company; that it has over 20,000 telephones connected in the city of Toledo with central exchanges by the usual and necessary wires and other constructions, and maintains a so-called 'long-distance' exchange physically connected by wires and other instrumentalities to similar long-distance exchanges and central exchanges located in many cities, villages, and towns in the state of Ohio and in adjoining states, and that thereby the defendant company serves the community as an instrumentality of interstate commerce; that the defendant company has suffered and permitted its lines, cables, and other facilities to become so greatly out of repair that it is impossible for complainants to obtain and to have service for which they pay, and which defendant is obligated to furnish, and that it has become impossible for the patrons of the telephone company to have reasonably full use of the company's lines; that at 25 or more places in the city, designated in the complaint, defendant's lines and cables have become cut and are permitted to remain out of repair, to the end that over 2,500 patrons of the defendant company have been entirely deprived of telephone service, including many of the prominent manufacturing and business establishments of the city, in some of which the complainants are severally interested; that the working force of the defendant company, of operators, linemen, and repairmen, has been permitted by the company to become so depleted that it is unable to and fails to keep its lines and facilities in reasonable repair, and that the situation presents a matter of grave concern to the prosperity and well-being of the city of Toledo and its inhabitants, including the several complainants, in that the legitimate business and commerce of the city to points within and without the state of Ohio are seriously and very largely interfered with, to the very great damage of community interests; that the complainants have no adequate remedy at law, and that the defendant indicates neither ability nor disposition to comply with the requirements of the several contracts alluded to, and with the obligation to maintain adequate facilities for intra and inter state communication.

It is asked, therefore, that the company be cited to answer the bill; that a preliminary order be issued to the defendant, requiring the defendant to immediately repair and put its plants, lines, wires, and facilities in reasonable order and condition for operation, and to observe its duties and obligations as an interstate carrier and as a public utility under the several acts of Congress and its contracts; and that it be determined and decreed that the rights and interests of the public and of the complainants, representing the public, are paramount in all respects to the private interests of the defendant, its officers, and employes, and all other persons whomsoever.

A few days after the filing of this complaint, a Michigan corporation, known as the Home Telephone Company of Grass Lake, filed a complaint against the Ohio State Telephone Company, alleging substantially the same condition of affairs as in the former complaint, with additional circumstances, setting forth the Michigan corporation's particular interest in the maintenance of the facilities and obligations of the local company, because the latter is the medium by which the former company maintains its interstate long-distance communication with points in the state of Ohio, and that its business in Ohio was interrupted by the failure of defendant to maintain its lines in proper repair.

Before any action was taken by the court these cases were consolidated, and thereupon the court, after notice, found that 'within the past three weeks the cables of defendant company have been cut, damaged, or destroyed' at the several points set forth in the complaint, and that this situation was the result of depredations by divers persons unknown to the telephone company; that thereby followed large, but unascertainable, losses of money and business to the complainants and others and the community, and an interruption of the free flow of interstate commerce; that the defendant company should immediately proceed to the repairing of the several cables located at or about the places mentioned in the order, and should thereafter maintain and keep all other cables, lines, wires, and appliances in good state of repair and in condition for operation. Then followed this provision:

'It is further ordered, adjudged, and decreed that the defendant company, its officers, agents, servants, and employes, those in concert or participating with them, and all persons whatsoever, and particularly all persons having notice of this order, be and are hereby enjoined and restrained from interfering in any way, or in any manner, with the cables hereinbefore enumerated, or with the repair of said cables, or with workmen engaged in repairing said cables, or with employes of defendant company when in the company's service; and all said persons and parties are enjoined and restrained from doing any acts or things which may interfere in any respect with the performance of the duties and obligations of the defendant company as a common carrier.'

The answer of the defendant company, filed some time after the entering of the preliminary order, admitted many of the allegations of the complaint, but, putting the complainants upon proof as to many others of important character, which need not be discussed here, set up the fact by way of excuse that it was suffering a strike on the part of its operators and linemen, and that it was having great difficulty in maintaining its working force, because its striking employes and their sympathizers were conspiring and combining to prevent the defendant from continuing in the operation of its telephone system and from employing operators, linemen, cablemen, and other electrical workers to repair the lines upon which depredation had taken place, and from maintaining the facilities of the company in operation; that their loyal employes were subjected to intimidation, abuse, and violence; and that its cables and lines were being destroyed and cut, as charged in the complaints, by the striking employes and their sympathizers.

Prior to the coming in of this answer, however, one Bert Hoffman, representing himself as a resident of the city of Toledo, applied for leave to intervene by answer and intervening petition in behalf of himself and the several members of Local 245 of the International Brotherhood of Electrical Workers, of which he was a member, and in behalf of said union. After a finding that he did in fact sue in behalf of the said union and its members, permission was granted, and his answer and intervening petition allowed to be filed. In these admissions were made of substantially the facts set forth in the complaints, except that Hoffman denied that either he or any of the parties for whom he attempted to speak were guilty of the depredations of the lines and facilities of the defendant company. An attempt was made also in Hoffman's pleadings to raise the merits of the labor controversy between the striking employes and the company, an issue which the court has not yet considered. Hoffman's pleadings in behalf of himself and his fellows assert their intention:

'To do and perform, singly and in concert with others, by peaceful and lawful means, all acts which he is able to perform by peaceful and lawful means, to compel said company to re-employ its striking employes, and to establish fair wages and decent working conditions; that until said company shall comply with said demands of its employes this petitioner will, in every peaceable and lawful manner possible, interfere with the business of said telephone

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