Opinion
No. A96329.
1946-11-22
GIORDULLO v. CINCINNATI & SUBURBAN BELL TELEPHONE CO.
Sol Goodman, of Cincinnati, for plaintiff. Frost & Jacobs, of Cincinnati, for defendant.
Action by Frank Giordullo against the Cincinnati & Suburban Bell Telephone Company to recover damages for discontinuing a telephone from plaintiff's premises and to compel the defendant to restore plaintiff's telephone service. On plaintiff's demurrer to defendant's answer.
Demurrer overruled in accordance with opinion.Sol Goodman, of Cincinnati, for plaintiff. Frost & Jacobs, of Cincinnati, for defendant.
STRUBLE, Judge.
This cause is before the court on plaintiff's demurrer to defendant's answer, the ground of which is that the defendant Telephone Company has failed to state facts sufficient to constitute a defense.
The plaintiff alleges and claims that he owns and operates a business located at 791 McMillan Street, Cincinnati, Ohio, known as Frank's Record and Novelty Shop; that the defendant Telephone Company is a public utility having a monopoly of telephone service within the city of Cincinnati, and is obligated to provide all of the people such service at established rates without discrimination; that when plaintiff opened up his place of business the defendant agreed to and did put in equipment and provided him with telephone service which he says is essential for the conduct of his business.
Plaintiff alleges further that there is an arrangement between the Telephone Company and Eugene T. Weatherly, Chief of Police of the city of Cincinnati, whereby the Telephone Company is to withhold telephone service from any person when called upon to do so by Chief Weatherly on his claim that such person is using his telephone for gambling and bookmaking purposes.
Plaintiff denies that his telephone was being used for bookmaking purposes, but he says that without any hearing as to the charges of the Chief of Police and pursuant to the aforementioned arrangement between the Telephone Company and the Chief of Police that his telephone service has been withdrawn and that he is now helpless in the operation and conduct of his business to his damage in the sum of $50,000.00 for which sum he asks judgment and an order compelling the Telephone Company to restore his telephone service.
The defendant Telephone Company by its answer admits that it is a public utility and that it has a monopoly of telephone service within the city of Cincinnati; and that it is required to provide such service to all persons at established rates and without discrimination, but denies that this is an absolute duty.
Defendant admits further that it agreed to furnish telephone service for plaintiff's place of business and that it withdrew the same but denies the other allegations of plaintiff's petition.
Further answering plaintiff's petition the defendant alleges as to plaintiff's place of business that: ‘Said premises were knowingly used for bookmaking purposes and were regularly frequented by certain persons with criminal records. As a result of the fact that the said location and the telephone installed therein had in the past been used by several occupants for bookmaking purposes, the defendant, on several occasions, denied plaintiff's application for telephone service at said premises.
‘Plaintiff then contacted Eugene T. Weatherly, the Chief of Police in the city of Cincinnati, who, after securing plaintiff's promise that he would not use the telephone for bookmaking or other illegal purposes, interceded with the defendant on plaintiff's behalf and defendant furnished plaintiff telephone service at the premises.
‘Thereafter the Cincinnati Police Department determined that plaintiff was using the telephone instrument installed by defendant in the premises located at 791 East McMillan Street, Cincinnati, Ohio, for bookmaking purposes in complete disregard of his promise given to the Chief of Police.
‘Thereupon said Chief of Police, by letter dated January 8, 1946, informed the defendant that plaintiff was using the telephone at 791 East McMillan Street for bookmaking purposes and requested defendant to remove the same as quickly as possible.
‘Subsequently, on January 10, 1946, defendant complied with the instructions of the Chief of Police and discontinued the service that it had been furnishing to plaintiff at the said location.’ End of quotation from answer.
It seems from the allegations in this answer that the telephone company does allow police control of telephone service for the enforcement of the gambling laws. The telephone company admits in this answer that it required the plaintiff to clear his place as to gambling with the Chief of Police before it would install telephone service in his place of business and then upon receiving a letter of date January 8, 1946, from the Chief of Police stating that plaintiff was using his telephone for bookmaking purposes and upon the request of the Chief of Police, the telephone company withdrew plaintiff's telephone service. I might remark that it is a matter of common knowledge that the city police are engaged in yanking telephones from walls and breaking up telephone equipment when and if the same in their judgment is being used for bookmaking purposes. Counsel for the demurrer argues that such actions by the police constitutes police government.
Counsel says that his client is a very much disillusioned young man; that just before he opened up his place of business that he came back from the Army where he and his buddies had been fighting throughout the world to destroy police governments in other countries and then when he gets back home he finds that it has reared its ugly head right here in his home city.
The court agrees with counsel for the demurrer that his client was the victim of police government.
The telephone company required the plaintiff to get the OK of the Chief of Police before it would give plaintiff telephone service and withdrew the same upon the request of the Chief of Police, all without any hearing as to the gambling charges-that is police government pure and simple.
The court agrees with counsel too that such a hook-up between the Telephone Company and the Chief of Police is in utter disregard of the fundamental rights of the citizenry of this city; but the court must disregard the alleged hook-up is passing upon plaintiff's demurrer except to say that the Telephone Company can not excuse its actions in withdrawing plaintiff's telephone service on the claim that it did so upon the request of the Chief of Police.
If the defendant considers that its answer contains several defenses it is to be noted that they are not separately stated and numbered. The court construes defendant's answer as alleging but one defense and that is that plaintiff was using his telephone for bookmaking purposes.
If that is true it seems to the court that the defendant had the right to withdraw plaintiff's telephone service. When it comes to the trial of this case the Telephone Company will be required to prove that defense by preponderance of the evidence and the letter of the Chief of Police requesting defendant to withdraw plaintiff's telephone service will not even be proper evidence in the case.
The court is overruling plaintiff's demurrer having in mind that the defendant's answer sets up the defense that the plaintiff was using or permitting his telephone to be used for gambling purposes which the court concludes, is, if true, a good defense.