
    The Cincinnati & Suburban Bell Telephone Co. v. The Cincinnati Street Ry. Co.
    (Decided January 22, 1934.)
    
      Messrs. Frost & Jacobs, for plaintiff in error.
    
      Messrs. Taft, Stettinius S Hollister, for defendant in error.
   Hamilton, P. J.

This case is here on a petition in error filed by The Cincinnati & Suburban Bell Telephone Company, a bill of exceptions, and separate findings of fact and conclusions of law made by the trial court.

At the conclusion of all the evidence counsel for plaintiff, and also counsel for defendant, moved the court for an instructed verdict, whereupon the jury was dismissed and the trial court rendered judgment for the defendant, The Cincinnati Street Railway Company, dismissing the plaintiff’s case at its costs.

The facts and issues in the case are in substance as follows:

The telephone company, under and by virtue of a grant given it by the commissioners of Hamilton county in 1912, constructed and maintained underground conduits on the Bridgetown Pike from Gurley Road to Ferguson Road, and from Ferguson Road to Lick Run, for the purpose of supplying telephone service. Pursuant to the grant the telephone company constructed a conduit system in Bridgetown Pike. The conduit with manholes was constructed practically in the center of the roadway. In 1928, the defendant, the street railway company, desired to extend its street ear tracks along said Bridgetown Pike from Cleves and Warsaw Pikes to Prosperity Place. The construction of the street car tracks as planned would in the main be over the plaintiff’s conduit, and would result in the destruction of a part of the manholes and interfere with the use of others. Thereupon, the officials of the street railway company communicated with some of the officials of the telephone company relative to the removal of the conduits. Just what took place in the negotiations is somewhat in dispute, but there are some facts which are not in dispute.

The telephone company claims that through the superintendent of the street railway company it was directed and instructed to make changes in the location of its conduits, removing them from the center of the road to the side thereof, it agreeing to pay the costs thereof if legally bound. At the time of negotiations between the telephone company and the street railway company, an action was pending growing out of the improvement of Delta avenue in the city of Cincinnati, testing the question of whether or not the telephone company could be forced to move its conduits to make way for an improvement projected by the city of Cincinnati, which required placing of the street railway tracks over the conduits of the telephone company, threatening the destruction of the conduits.

There is in the record a letter dated August 27,1928, addressed to the Superintendent of The Cincinnati Bell Telephone Company, and signed by J. B. Stewart, Jr., general manager of The Cincinnati Street Railway Company. That letter is indicative of the basis of negotiation for the removal by the telephone company of its conduit and manholes, and is as follows:

“THE CINCINNATI STREET RAILWAY CO.,
“August 27,1928.
“Mr. T. C. Reed, Supt. of Plant,
“The Cincinnati & Suburban Bell Telephone Co.,
“ Cincinnati, Ohio.
“Dear Mr. Reed:
“Confirming telephone conversation with you last Saturday in regard to interference of telephone manholes and ducts on Bridgetown Pike in Overlook, with the construction of our track extension to the new Western Hills High School, we will be very glad if you will proceed to make the necessary changes in the manholes along this street which will permit the construction of our track, and also to lay whatever additional ducts may be required to properly handle your service.
“As this is another instance where the question of responsibility of a Public Utility Company for moving its facilities when another Public Utility Company is installing additional facilities, is to be decided, I would suggest that the question of paying for the cost of making the change on Bridgetown Pike shall be held in abeyance until such time as the proposed conference on this subject shall be held and a definite decision arrived at. I believe that all concerned will have returned from their vacations by the 15th of September and would suggest that a meeting be held shortly after that date.
“You are conversant with the fact that the people on Price Hill are extremely anxious that this extension be completed in time to transport children to and from the new Western Hills High School when it is opened, September 10, and we are bending every effort to have our part of the work completed and ready for service. We therefore appreciate the splendid spirit of cooperation evidenced by you when you agreed to proceed with this work and let the question of responsibility be decided at a later date.
“Yours very truly,
“J. B. Stewart, Jr., General Manager.”

From this letter it is noted that the street railway company was in great haste to extend its tracks in order to transport children to and from the new Western Hills High School. The letter mentions the spirit of co-operation by the telephone company. It was suggested that the question of paying for the cost of making the change could be held in abeyance until “such time as * * * definite decision arrived at.”

It is in the evidence that the question of paying was held up by reason of the suit filed in the Delta Avenue mátter, as to whether or not the telephone company could be required to remove its conduits at its own cost. That the suit was in the minds of the parties at the time is confirmed in the testimony of Mr. Stewart. The telephone company thereupon, without further negotiations, proceeded to make a drawing of its plans to move its conduits and manholes entirely to the side of the road, which would straighten, and, in a way, add to the use by the telephone company of its conduit. Whether or not this plan was submitted to the superintendent of the street railway company and approved by him is in dispute. The fact remains that the telephone company did, in accordance with its plans, remove its conduits and manholes to the side of the road at a cost of $2,933.71. Later, the Delta Avenue case was decided by this court, and this decision was affirmed by the Supreme Court. The Delta Avenue case is entitled City of Cincinnati v. Cincinnati & Suburban Bell Telephone Co., and is reported in 123 Ohio St., 174, 174 N. E., 586. The last paragraph of the opinion is:

“The city is attempting, in effect, to authorize and command one public utility company, the street car company, now operating in the street, to relocate and use its property in a position and manner which must inevitably completely destroy the property of another public utility company, the telephone company, whose rights in the street are at least equal to the rights of the street car company therein. The action of the city in this regard, must, in law, be held to be arbitrary, unreasonable, and not in accord with good conscience. ’ ’

The telephone company’s rights in the street, therefore, under its prior grant, are at least equal, if not superior, to the rights of the street railway company.

It is admitted that the construction of the street car tracks would seriously damage the conduit system, by damaging part of the manholes and interfering with the use of the others.

There was no express contract under which the railway company was to pay the cost of making the change by the telephone company. However, the telephone company was put in a position where it became necessary for it to protect its property, and was led to make the change by the representation of the general manager of the street railway company when he urged prompt action, payment of the cost to be held for future consideration.

The third paragraph of the syllabus in the case of Columbus, Hocking Valley & Toledo Ry. Co. v. Gaffney, 65 Ohio St., 104, 61 N. E., 152, is directly in point. It is there stated:

“Where it is averred in a petition that the plaintiff performed services for the defendant ‘at his instance and request,’ the averment may be supported by evidence of the circumstances under which the services were performed tending to show a contract; evidence of an express request is not required.”

In the instant case, as above stated, the changes were made at the instance of the street railway company. There is no evidence that the telephone company had under consideration any change in the location of its conduits until requested to make the change by the street railway company. It is clear from the evidence that the telephone company expected to be paid for the changes. It is also clear that the street railway company intended to pay if legally liable; the liability to be determined by the decision in the Delta Avenue case.

Our conclusion is that under the facts and the law the telephone company is entitled to be compensated for the necessary and reasonable cost in changing the location of its conduits and manholes, to preserve its property and its uses, and that there was an implied promise on the part of the street railway company to compensate the reasonable cost thereof, if legally liable, that liability to be determined by the decision in the Delta Avenue case.

We are not holding that the telephone company may collect the whole cost of the changes that it made. It may be that the change was made in such a way as to materially benefit the telephone company, in addition to the protection of its property and the accommodation of the street railway company. If more money was expended for the location and removal of the conduits than was necessary, the street railway company could not be liable for that excess cost. We are holding the street railway company liable for the necessary and reasonable cost, as above indicated. The petition sets up that the net cost of the work, the changes and the material supplied, amounted to $2,933.71, for which payment was demanded and payment refused, and asks judgment for that sum. The petition does not in the fourth cause of action declare upon an express contract, neither does it clearly set up a cause of quantum meruit, but under the liberal construction to be given to pleadings, under the statute, we are of opinion that the petition does state facts which would authorize a judgment based upon quantum meruit.

We have not discussed in this opinion the separate findings of fact made by the trial court, for the reason that the suit was an action at law, triable by a jury, and the case is here on error, with a bill of exceptions, containing all the evidence offered at the trial.

The trial court erred in refusing any recovery by the telephone company from the defendant, the street railway company. The judgment will be reversed and the cause remanded for further proceedings on the question of the amount of the recovery.

Judgment reversed and cause remanded.

Cushing and Ross, JJ., concur.  