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Opinion, per DONAHUE, J.
thority to the writing of contracts of indemnity which contain terms consistent with its provisions. State, ex rel. Turner, Atty. Gen., v. Employers' Liability Assurance Corporation, Ltd., supra.
In view of the fact that Section 9510-1 subrogates the injured workman to all the rights of the employer under any contract or policy of insurance of this character, the contracting parties cannot provide in the contract that no suit can be brought upon the policy except by the employer himself. It is equally clear that the further provision in the contract, that action cannot be brought thereon by the employer until after the judgment is satisfied and paid in full, is also void, for such a provision would likewise defeat the right of the employe to subrogation, and deprive him of all the benefits intended to be conferred by this statute.
This contract of indemnity provides in terms that when suit is brought by an injured workman against the employer, the employer shall cause every summons, process and other paper relating to such suit to be delivered to the insurance company as soon as served on the employer; that thereafter the company will, at its own cost, defend the suit in the name of and on behalf of the employer; and that the employer shall not interfere in any legal proceedings relative to or growing out of any casualty covered in whole or in part by the policy of insurance, nor with the negotiations for the settlement of any claim arising from such casualty, nor shall such employer settle any such claim or incur any expense in connection with such casualty save such as may be necessary in providing at the
Opinion, per DONAHUE, J.
time of the accident imperatively needful surgical relief.
If under the provisions of Section 9510, General Code, a contract of indemnity may contain a binding agreement that a stranger to the litigation may for a price assume the entire burden of the defense, including costs, and deprive the real party in interest of the right to settle the litigation at terms satisfactory to himself, certainly the other party to the suit should be compensated in some way for the increased burdens of litigation that such a contract necessarily imposes upon him.
Section 9510-1, General Code, recognizes the justice of this situation by subrogating the injured employe to the rights of his employer under the contract of indemnity, whenever he has reduced his claim for damages to judgment.
Under this contract the insurance company had its day in court, with full opportunity to defend against the claim for which it is ultimately liable. It prevented the possible settlement and adjustment between the real parties to the controversy; it controlled the litigation and compelled the injured workman to establish by proof the justice of his claim and the amount of damages he had suffered by reason of the injuries received in the course of his employment, through the fault or negligence of his employer. It is but fair that the contract should then inure to his benefit for the satisfaction of the judgment he has obtained, notwithstanding the intervention and activities of the insurance company in the defense of the suit.
Statement of the Case.
The judgment of the common pleas court, and the judgment of the court of appeals affirming the same, are hereby reversed, and judgment is entered for plaintiff upon the agreed statement of facts filed in the common pleas court of Cuyahoga county.
Nichols, C. J., WANAMAKER, NEWMAN, JONES, Matthias and Johnson, JJ., concur.
THE CITY OF CINCINNATI, ETC., v. THE PUBLIC
UTILITIES COMMISSION OF OHIO.
Public utilities commission — Powers restricted to statute - Com
mission may not summarily fix gas rate, when — Municipal contract Suspension of new ordinance — By filing referendum petition — Requirements of Section 614-16 et seq., General Code.
1. The powers of the public utilities commission are conferred by
statute and it possesses no authority other than that thus vested
in it. 2. The public utilities commission is not authorized by statute to
summarily fix a rate to be charged consumers of natural gas subsequent to the expiration of a contract between the public utility and the municipality served during the period within which the operation of a new ordinance prescribing such rate
is suspended by reason of the filing of a referendum petition. 3. In the absence of an effective ordinance prescribing rates for
service by a public utility, such rates should be established in accordance with the provisions of Section 614-16 et seq., General Code.
Statement of the Case.
The city solicitor of the city of Cincinnati on November 16, 1916, filed with the public utilities commission of the state an application in which it was recited that on October 3, 1916, the council of said city had passed an ordinance fixing the rate of charge for natural gas in the city of Cincinnati for a period of five years from and after November 4, 1916, which ordinance was duly approved by the mayor of said city; that The Union Gas & Electric Company which was then and theretofore furnishing gas to consumers within said city duly accepted said ordinance and agreed to abide and be bound by the terms thereof; and that on October 30, 1916, a referendum petition was filed requiring a submission of said ordinance to a vote of the people.
By said application the public utilities commission was asked to strike from its files and records a schedule filed with it by said gas company on November 6, 1916, setting forth the rates it proposed to charge the various classes of consumers of natural gas in said city, which schedule according to its terms cancelled and superseded schedules previously filed with the public utilities commission. Such application also prayed that the public utilities commission fix and put in force an emergency rate of charge for natural gas in the city of Cincinnati during the period of suspension of operation of the ordinance passed October 3, 1916, brought about by the filing of such referendum petition.
Upon consideration of such motion and application the public utilities commission found that it
Opinion, per MATTHIAS, J.
had no authority to fix and put in force an emergency rate as requested in said application, entered its finding adverse thereto, and ordered that the same be dismissed.
Thereafter a petition for rehearing of such motion and application was filed, and the same having been denied a petition in error was filed in this court seeking a reversal of the finding and order of the public utilities commission.
Mr. Charles A. Groom, city solicitor, for plaintiff in error.
Mr. Edward C. Turner and Mr. Joseph McGhee, attorneys general; Mr. Freeman T. Eagleson; Mr.
; Lawrence Maxwell and Mr. Miller Outcalt, for defendant in error.
MATTHIAS, J. The record discloses that from December 26, 1905, to and including October 26, 1916, natural gas was furnished to the city of Cincinnati and to private consumers therein by The Union Gas & Electric Company and The Cincinnati Gas & Electric Company at a net rate of 30 cents per thousand cubic feet, in accordance with the provisions of ordinances prescribing such rate, in operation and effect throughout that period.
Under the provisions of Section 614-44, General Code, the municipality was authorized at any time within one year prior to the expiration of its contract with the gas companies, which was October 26, 1916, to proceed under the provisions of Sections 3982 and 3983, General Code, and fix by ordinance the rate to be charged for natural gas in said