
    Sonstegard v. General Telephone Co.
    [Cite as Sonstegard v. Genl. Telephone Co. (1969), 27 Ohio Misc. 112.]
    (No. 129170
    Decided September 8, 1969.)
    Common Pleas Court of Montgomery County.
    
      Messrs. Baggott, Logan & Gianuglou, for plaintiff.
    
      Messrs. Power, Griffith, Jones & Bell, for defendant.
   Kessler, J.

This matter came before the court upon the pleadings of the parties and the evidence adduced at a hearing of this cause, a jury having been waived by the parties.

The facts of the case touching the gravamen of the matter before the court are relatively simple and uncontested. Plaintiff was a subscriber of telephone service of the defendant, General Telephone Company. Plaintiff’s minor son at the time in question was attending a military school in the state of Kentucky and placed long distance calls to other persons, charging the tariff to the telephone of the plaintiff which had been installed by the defendant. These are known as third-party charges.

Plaintiff notified defendant that this had been done and directed defendant to refuse charges placed by third persons against the plaintiff’s phone account. It is further undisputed that subsequent calls were placed by a third party and the charges were placed against the statement including the account of the plaintiff with the defendant.

The plaintiff refused to pay these charges, as a result of which the defendant terminated the service of the plaintiff, which service was reinstated by the granting of a temporary mandatory injunction.

The defendant’s tariff on file with the Public Utilities Commission of Ohio, which constitutes in effect the contract between the plaintiff and the defendant herein, provides for the discontinuance of service for the nonpayment of any sum due. The court could find no provisions relating specifically to liability for third-party charges in the tariff.

The testimony of the defendant is that if third-party charges are made by strangers to the subscriber, payment is not required, but that if a member of subscriber’s family makes a third-party charge, the company does require the charge for these calls be paid by the subscriber. From the testimony presented to this court, it is our finding that the calls in dispute were, in fact, made by the son of the plaintiff subscriber.

There can be no denial of the importance of a telephone in today’s society. If at any time a telephone could have been considered a luxury that time is long past, and it is of no moment to the parties herein involved as to when this instrument became such an integral part of the daily lives of the people of this country as to, in effect, constitute it a necessity. Thus, in arriving at a determination of the issues here, we believe some regard must be had for a practical determination to insure the successful continuance of such telephone systems as the defendant for the benefit of the general population.

The facts of the within case show that the third-party charges which are in dispute originated in a district serviced by Southern Bell to a party in another division of the Bell system, Ohio Bell. Procedure in such a case is for the originating system then to submit a bill for such call to the system servicing the subscriber. The sophistications of such a billing system from one telephone system to another make it impossible for a subscribing company to refuse to place calls for which charges are made against one of their subscribers as requested by the plaintiff herein. The impossibility then of effectively instituting any course of action to protect itself against conduct such as in the instant case leaves a telephone company in a position of vulnerability to fraud which could conceivably make the operation of a telephone system economically unfeasible.

The plaintiff in the instant case is the only one who could have effectively controlled the course of conduct of his son, who was placing the calls which are in dispute. The defendant telephone company, having no knowledge of the placement of these calls until such time as the charge was submitted to it by another telephone system, was powerless to do anything to prevent this type of situation.

For this reason, it is our finding that the plaintiff has failed to substantiate his petition by a preponderance of the evidence. We further find that the plaintiff has in no way been damaged by the conduct of the defendant, and that judgment ought to be and is hereby rendered in favor of the defendant and against the plaintiff.

It is further ordered that the temporary mandatory injunction and restraining order issued heretofore is hereby dissolved and held for naught. Costs to plaintiff.

Judgment for defendant.  