117 A. 264 | N.H. | 1922
The plaintiff's declaration sets out a contract with the defendant and alleges a negligent failure to perform the same. That no action sounding in tort can be maintained for such a fault is the settled law of this jurisdiction. Dustin v. Curtis,
The defendant is a public service corporation. P. S., c. 81, s. 13. It is upon this proposition, and this alone, that it is claimed that a liability exists here. It is therefore necessary to examine the law as to the nature and extent of the obligations and burdens imposed by law upon those who enter upon a public calling of this class. The business of transmitting intelligence through the instrumentality of electricity has called for the determination of how far the analogies of the law furnished guides to the limitations surrounding these callings. None of these questions have heretofore arisen in this state, and resort must be had to other jurisdictions for precedents dealing directly with the matter in hand.
As the telegraph is much earlier in date, most of the authorities relate to cases involving that business; but it is like that of the telephone companies in so many respects, that all the cases involving the nature and extent of the liabilities imposed have been treated generally as authorities upon the questions in any particular case.
It was at first thought that the analogy to the situation of the common carrier of goods was substantially a perfect one, and that the telegraph company was liable as an insurer for the transmission of messages. But the fallacy of this view was soon recognized. It was abandoned, and is nowhere held at the present time.
The English authorities are explicit to the effect that the only liability is one arising from contract and that the company's liability is limited as it would be in case of a private agreement. Playford v. Company, L. R. 4 Q. B. 706. *356
A few courts in this country have gone to the opposite extreme and have held that there is a tort liability, in the broadest sense, and that all damages traceable to the company's neglect may be recovered. McPeek v. Company,
The case of Hodges v. Railroad,
The greater number of American courts have avoided both extremes and adopted the rule just quoted. Recognizing the essential principles which should apply to all public service agencies — the duty to serve all alike and for a fair price, and the status of the party as "that of one held to service" (McDuffee v. Railroad,
"These damages are disallowed, not because they cannot be traced directly as the immediate and undoubted effect of the breach, but because they are in their nature uncertain and contingent, and, perhaps more decidedly, because they are not such as would naturally flow from such a breach, and could not fairly be considered as having been within the contemplation of the parties at the time of entering into the contract." True v. Company,
"A rule of damages which should embrace within its scope all the consequences which might be shown to have resulted from a failure or omission to perform a stipulated duty or service would be a serious hindrance to the operations of commerce and to the transaction of the common business of life. The effect would often be to impose liability wholly disproportionate to the nature of the act or service which a party had bound himself to perform and to the compensation paid and received therefor." Squire v. Company,
The rule as stated in these cases has been generally accepted as defining the limits of the liability imposed upon these companies, and has been recognized many times. Baldwin v. Company,
While there are no cases in this state dealing with the liabilities of telegraph or telephone companies, yet the limitation which has been declared as to the liability of a common carrier, is in accord with the prevailing rule as to the more modern public utilities. Although a common carrier is liable as an insurer for the value of the goods committed to his care, it does not follow that he is liable for all the consequential damages which are incident to such loss because *358
of the peculiar facts of the particular case. That he is not so liable in the absence of notice, but that his responsibility is limited by the general rule before stated, was decided in England in the leading case of Hadley v. Baxendale, 9 Ex. 341. This rule was approved in Deming v. Railroad,
Whether this decision was intended to apply to the right of the plaintiff to recover the remoter damages in any form of action, might perhaps be left in doubt by the ambiguous remarks upon it in the opinion in Cate v. Cate,
As before stated, the authorities are almost unanimous against the right of recovery here set up. Nor are these authorities inapplicable here because of the rule in this state that the question of proximate cause is one for the jury. It is true that in a few cases a recovery has been denied upon a conclusion as to proximate and remote cause which conflicts with the local law upon that subject. But the great majority of the cases rest upon the proposition that the nature of the duty imposed upon the companies is such that the contract rule, rather than the tort rule, as to damages applies. They do not deny the soundness of the tort rule as here defined, but hold that the rule is not applicable to the situation.
The obligation of the companies is held to be a general one, so that, *359
for example, the sendee of a message may recover in certain cases. Big., Torts, 130. But the measure of damages is determined by the application of the general principles governing the liability of one who makes default of a contract obligation. This view treats the wrong complained of as being what it in substance is a the mere failure to keep an agreement. In the language before quoted, there is "a stipulated duty or service." Squire v. Company,
The rule of law by which the telephone company is held to promise service to every one is applied for the purpose of protecting the public against discrimination. Its sole aim is to compel the company to be ready to serve, and to serve all alike, at a reasonable price. There is no sound reason for extending the unusual burden imposed beyond that which will effectuate the purpose in view. When the company is held to the obligation it would have had if, as a private citizen, it had made an express contract upon the terms here imposed by law, the whole object of the law is attained. Anything beyond this puts an unreasonable burden upon the public servant.
It early became apparent to courts that the peculiar rules theretofore applied to one who pursues a public calling and so "exercises a sort of public office" (McDuffee v. Railroad,
It may be true that the liability imposed is not capable of an exact definition expressed in the terms of earlier classifications of rights *360 and remedies. 2 Sed. Dam. s. 875. It has developed, as most common law rules have, from the application of established principles to new situations. It has the support of sound reasoning and the great weight of judicial opinion. It has been heretofore recognized in a measure in this state.
Whether the application of the rule to cases of misfeasance, as distinguished from mere non-feasance, as illustrated by the decided cases, can be sustained, is a question not involved in the present instance. The charge here is a negligent failure to perform a duty to render service. If the suit were between private parties, an action sounding in tort could not be maintained. It is not now necessary to go further than to hold that the fact that the defendant is engaged in the public service, does not make its mere failure to perform its duty to serve a wrong different in character from what it would be in the case of a private agreement.
When there are no special circumstances tending to show that the company was chargeable with knowledge of facts from which the likelihood of special damage should be inferred, the plaintiff can recover no more than the ordinary value of the service for which he paid, or to which he was entitled. Hurt v. Hickey,
In the present case there was no evidence and no allegation of such knowledge. It is not a case where the defendant knew there was an emergency and thereafter failed to act. It is not a case where the defendant's negligent performance of its contract misled or otherwise injured the plaintiff. It is not a case where the plaintiff did or omitted to do any act relying upon the defendant's obligation, or upon the performance thereof. Whether in such cases, or in any of them, there might be a pure tort liability, so that the broader rule of accountability for damage would apply, is a question which is not involved in this case and upon which no opinion is expressed.
The evidence in this case shows a typical instance of a contract for the usual and ordinary service, with no knowledge or notice of any emergency. The only wrong complained of is the negative one of failing to perform a service to which the plaintiff was entitled under his contract, or because of the promise of service implied from the nature of the defendant's business. In such a case there is no recovery for the results of the unforeseen situation which thereafter arose.
Exception overruled.
YOUNG, J. dissented: the others concurred. *361