Marion Steam Shovel Co. v. Columbus, D. & M. Elec. Co.

162 N.E. 725, 28 Ohio App. 351, 6 Ohio Law. Abs. 561, 1928 Ohio App. LEXIS 456

• Court: Ohio Court of Appeals
• Decided: May 9, 1928
• Docket: 687
• Status: Published

Opinion

JUSTICE, J.

The controversy here primarily exists by reason of the parties placing different interpretations on section 14 of the contract. This section, so far as pertinent here, provides:

“However should the electric company by reason of unavoidable accidents temporarily discontinue service for any part of one _ working day, then there shall be credited to the shovel company for each day or fraction thereafter, that said interruption of service exists, a sum equal to two thirtieths of the monthly bill rendered for the month in which said interrupted service occurs, the excess of said credit if any there be, over said monthly bill to be applied on any subsequent monthly bills rendered hereunder to the Shovel Company.”

It is the contention of the plaintiff that, under this contract, it is entitled to a credit of two-thirtieths of the monthly bill for any interruption or interruptions that occur in any one day. It is the contention of the defendant that under this contract, plaintiff is not entitled to credit unless the interruption covers at least one full day.

We are asked to interpret said section 14 but, as we see this case, it is of no moment here which interpretation is correct, because plaintiff cannot prevail in this suit, even if it has tendered to the defendant all that is due and owing to it under the contract, for the reason that plaintiff has failed to allege and prove that the contract in question was filed with and approved by the Public Utilities Commission.

Section 614-17, so far as applicable here, provides that:

“Nothing in this act shall be taken to prohibit a public utility from entering into any reasonable arrangement with its customers * * * or providing for a minimum charge for service to be rendered * * *. No such arrangement * * * minimum charge * * *' shall be lawful unless the same shall be filed with and approved by the commission.”

Obviously, the parties had a right, under this statute, to enter into the contract in question. But, after the contract was executed it was their duty, before entering upon its performance, to file it with the commission and obtain its approval thereto, because until so filed and approved, the contract is by this statute, declared to be unlawful.

In the instant case, plaintiff sues on the contract. There is, of course, no presumption that the contract was filed with and approved by the commission. Clearly, in the absence of an averment and proof that the requirements of the statute have been complied with, plaintiff is not entitled to relief at our hands. To hold otherwise would defeat the purpose for which the statute was enacted, namely to put all such contracts under the supervision of The Public Utilities Commission.

Holding these views, it follows that the petition should be dismissed, and that an entry should be entered as was entered in the Court of Common Pleas. Decree accordingly.

(Before Judges Crow, Hughes and Justice.)