224 Wis. 93 | Wis. | 1937
The following opinion was filed January 12, 1937 :
The facts, which are either undisputed or have basis in the testimony, may be summarized as follows: On April 10, 1935, the plaintiff owned a sawmill situated in Shawano county, four and a quarter miles from the village of Bowler. The mill was a two-story building, twenty-six feet wide and eighty feet long. Three of the outside walls of the basement thereof were of stone construction. The mill otherwise was of wood construction. Close to the mill and
The question for determination is whether the evidence, rationally considered, is sufficient to permit of the inference to a reasonable certainty, that had the defendant promptly complied with the request for a connection with Kriewaldt’s residence, property of the reasonable value of $1,500 would have been saved by the Bowler fire department.
The defendant contends, (1) that there can be no liability on the part of the defendant for any damages which the plaintiff sustained, because there was no obligation on the part of the Bowler fire department to attend a fire outside of the village, and because the maintenance of a fire department by a village is a governmental function, and the village would not have been liable to the plaintiff for failure to respond to a call or for negligence in doing so, even though the mill had been located within the village. Engel v. Milwaukee, 158 Wis. 480, 149 N. W. 141; Highway Trailer Co. v. Janesville Electric Co. 187 Wis. 161, 204 N. W. 773; (2) that since there was no legal obligation on the part of the village
Before discussing the cases cited, attention is directed to the provisions of two sections of our statutes which materially bear upon this controversy. Sec. 180.19, Stats., so far as here material, provides :
“Damages for nondelivery of message. Persons owning or operating any . . . telephone . . . line . . . shall be liable for all damages occasioned by the failure or negligence of their operators, ... in receiving, . . . transmitting or delivering . . . messages. ...”
Sec. 175.06, Stats., provides in substance, and so far as here material, that it shall be the duty of every telephone company engaged in the business of leasing telephones to the public or supplying the public with telephones and telephonic service, upon payment of the usual or customary charges therefor to furnish to every person without unreasonable delay a telephone with all the proper or necessary fixtures as well as connection with the central office or telephone exchange, if desired, and to connect the telephone of such person with the telephone of any other person having a connection with the same whenever requested to do so. It is clear, under the latter statute, that it was the duty of the defendant company, upon being requested so to do, to connect the plaintiff’s telephone with Kriewaldt’s residence and with
In Forgey v. Macon Telephone Co., supra, recovery was sought on the ground that the telephone company had negligently failed to answer a call put in to notify the city fire department of a fire. The court held, on appeal from an order sustaining the defendant’s demurrer to the plaintiff’s complaint, that since there was no legal duty on the part of the city to respond, had it been notified of the fire, there could be no liability on the part of the telephone company. The decision was obviously ruled by the prior holdings of that court to the effect that a water company, under contract with a city to furnish a sufficient and adequate supply of water to extinguish fires, where the city maintains a fire department whose duty it is to respond at all times to fire alarms, is not liable to a property owner for the destruction of his property
“It would seem to follow that if a water company cannot be held liable for damages for negligence in not supplying the city fire department with sufficient water to extinguish fires, whereby the citizen’s house is destroyed by fire, a telephone company cannot be held liable for negligently failing to answer a call for the fire department by one of its subscribers, to notify said department of a fire at such house.”
There is nothing in the opinion indicating that Missouri had adopted a statute similar in its purpose to that of sec. 180.19, which expressly provides for the recovery of damages occasioned by the failure or negligence of the operator of a telephone company.
In Lebanon, Louisville & Tex. Tel. Co. v. Lanham Lumber Co., supra, — a case involving a claim for damages based on the assertion that a telephone company had negligently failed during an interval of twenty to thirty minutes to effect a telephone connection between the night watchman at the plaintiff’s plant and the local fire enginehouse, during which time the fire had gained such headway as to be beyond control when the fire company finally reached the scene of the fire, the supreme court of Kentucky held, on demurrer, that under the allegations of the petition the claim rested upon speculation and conjecture. The court said:
“The loss in this case was due to the fire. This was the primary cause, and, in order to make the negligence of defendants intervene and become the efficient cause, it must be established with certainty that but for their negligence the fire would have been confined to the boiler room. Now, does the petition state such facts as warrant the inference that but for the negligence complained of the fire would not have spread? We think not. The petition proceeds upon the hypothesis that all of the independent intervening agencies*102 would have worked together harmoniously, promptly and efficiently. This is a mere conclusion of the pleader. If the agent of defendant companies had acted promptly, the watchman in the fire tower would have likewise done so, and so on down through the list of the different agencies called into play. Theoretically this is all right, but, as a legal proposition, it is unsound.”
The intervening agencies referred to were: That if a connection had been promptly furnished between the watchman and the fire department, the man in charge thereof would have promptly answered his call and would have promptly sounded the alarm by ringing the fire bell; that the members of the fire department would have heard the fire bell when rung and would have promptly answered the call, and would have reached the fire at least thirty minutes sooner than they did and before it had spread from the boilerhouse to the main buildings; that after having reached the fire the department would have put it out before it spread to the main buildings, and that the plaintiff would have suffered comparatively no loss. Those agencies were described by the court as the independent links which had to be forged into ^nd joined in order to connect the negligence of the defendant’s operator with the plaintiff’s loss. It seems clear that had all of the so-called agencies been properly pleaded and proved to a reasonable certainty upon a trial, legal liability would have been found even by the Kentucky court.
In Volquardsen v. Iowa Telephone Co., supra, recovery of damages was sought on the ground that the company’s servants had failed promptly to connect the plaintiff by telephone with the fire department after the plaintiff had discovered that his factory was on fire. The plaintiff asserted that but for such negligence he would have been able to give the alarm to the fire department promptly and much of his factory building and all of his machinery would have been saved. Under an Iowa statute similar to ours the proprietor
“The fire was the primary cause of the loss. The defendant did not start it, or have ought to do with its origin. The charge against it is that the negligence intervened as the efficient cause in the omission to do that which would have resulted in the extinction of the fire. Of course, if the failure to put out the fire was the direct and natural consequence of the unreasonable delay in making the connection, then there could be no doubt as to defendant’s liability. But several links in the chain of sequences are involved in doubt and speculation. The fire was burning not only before plaintiff reached the receiver, but before he was awakened by his wife, who had heard the crackling of flames. Conceding that he was at the telephone nine or ten minutes, though minutes seem hours at such times, and that connection was made at the central office within two minutes thereafter, yet, as the hose company had been notified by another, there could not have been a delay of more than ten or twelve minutes, and, when the firemen arrived, the fire was beyond control. At what time must they have been on the ground to have*104 saved the property? No one can answer save from conjecture. All realize that in such emergencies time is precious, but who can say from the situation as presented in this case how many minutes meant the loss of the plaintiff’s property? Suppose the connection at the central office had been made promptly, would the firemen in charge of the fire station have responded promptly and promptly have rung the fire bell? Would the members of the department have heard and promptly have repaired to the scene? Was the apparatus for extinguishing the fire in working order and the water supply accessible and sufficient? Would all of these intervening agencies have operated harmoniously and efficiently and with such promptness as to have put out the flames in time to have avoided a total loss ? Manifestly these are matters of speculation, and yet all this must be assumed if the loss is to be traced to defendant’s negligence. Each of these independent agencies necessarily must be linked together in a line of causation in order to connect it with the loss. None of them were under the direction or control of the telephone company. Moreover, how far the fire had spread at the time the firemen would have been likely to have reached the scene had the connection been promptly made is left by the evidence a matter of speculation merely. And then there are the weather conditions and the character of the material to be taken into account. After the experience of ages, fighting fire, even with modern machinery and apparatus, is precarious business, and uncertain in its results. Had everything worked out as calculated after the fire was over probably some of the building and machinery might have been saved. But the basis for a legal inference of this kind was not furnished by the evidence. The negligence of the telephone company may be ascertained, but that falls short of connecting it with the loss which is only possible through agencies entirely independent. If it, as the dominating force, acted through the intervening agencies, as mere instruments or vehicles in a natural line of causation, to the loss, there would be ground for saying defendant was liable. But the intervening agencies were independent, and what might have happened pure matter of speculation.”
In Providence Washington Ins. Co. v. Iowa Telephone Co., supra, it was held that damages asserted to have been
In Cody v. New York Telephone Co. 3 N. J. Misc. 1176, 131 Atl. 221, it was held under the facts adduced that whether the damages would have been less if the telephone company had made a prompt connection was so speculative as to permit no recovery.
While the burden resting upon a plaintiff in a case like the present must ever be a heavy one, it certainly is not one that never can be met. If that were so, the statute which permits a recovery of all damages occasioned by the refusal or unreasonable delay of a telephone company to furnish a connection would amount to nothing in cases like the present. The Iowa court did not hold that recovery for refused or delayed telephone service could never be had in a fire case. Quite the contrary conclusion is justified by the language of the opinion.
In our opinion, the views expressed by the Missouri and Kentucky courts should not be approved by us, especially in view of the statute which the legislature in its wisdom has seen fit to enact. Granting an unreasonable delay in furnishing a connection or a wholly unjustified refusal to furnish any connection at all to a subscriber in good standing, the question as to what damages were caused thereby is a question of fact to be determined by the jury and upheld bv the
The defendant further contends that the court erred to its prejudice in permitting several witnesses to express their opinion regarding the length of time it would have taken the Bowler fire department to check, control, and extinguish the fire, as they themselves had observed it to be, at 9 :30 and at 9:45. Most of the witnesses who ventured such opinions had had some experience as fire wardens or in fighting fires. While the witnesses, other than those connected with the Bowler fire department, were not in our opinion competent to testify as experts and should not have been permitted to express their opinions, the error was not prejudicial, since the court pretty clearly evaluated such testimony when objection was made to it by saying “It really isn’t of much value, but you may answer,” and again by saying, in connection with another witness, “It is a matter of guess, that’s all, but you may answer the question.” All of the witnesses, whose testimony was incompetent, stated that, in their opinion, the damages to the mill proper would have been quite insignificant had the fire department reached the mill at 9 :45 or a little thereafter. It is evident from the verdict that the jury did not give much consideration to such testimony, since the total damages sustained, according to the testimony, amounted to $2,600 to $3,000, and the jury found the damages which were occasioned by the refusal of the defendant to give a connection, to be $1,500.
The defendant further contends that certain telephone tickets produced by the defendant, which were made by the operator at Marion at the time the call for a connection with
By the Court. — Judgment affirmed.
A motion for a rehearing was denied, without costs, on March 9, 1937.