Barrett v. New England Tel. & Tel. Co.

• Decision Date: 04 April 1922
• Docket Number: No. 1738.,1738.
• Citation: 117 A. 264
• Parties: BARRETT v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.
• Court: New Hampshire Supreme Court

117 A. 264

BARRETT

v. NEW ENGLAND TELEPHONE & TELEGRAPH CO.

No. 1738.

Supreme Court of New Hampshire. Hillsborough.

April 4, 1922.

Young, J., dissenting.

Exceptions from Superior Court, Hillsborough County; Marble, Judge.

Action by Wilbur E. Barrett against the New England Telephone & Telegraph Company. From an order of nonsuit, plaintiff excepts. Exception overruled.

The plaintiff alleged that he was a subscriber entitled to telephone service at his residence where the defendant had installed an instrument, that on the morning of November 22, 1917, service was interrupted without his fault, that the defendant had due notice of such interruption early in the day, but carelessly and negligently failed to restore the service, that in the evening of the same day the plaintiff's buildings accidentally took fire, that because of the interruption of telephone service the plaintiff was unable to summon the fire department, and his buildings were completely destroyed by fire, and that the greater part of such loss would have been prevented except for the failure of the telephone service.

Trial by jury. At the close of the plaintiff's evidence, a nonsuit was ordered by the court, which transferred the case upon the plaintiff's exception.

Doyle & Doyle, Alvin J. Lucier, and Paul J. Doyle, all of Nashua, for plaintiff.

Pitt F. Drew, of Boston, Mass., and Irving W. Drew, of Lancaster, for defendant.

PEASLEE, J. 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, 74 N. H. 266, 67 Atl. 220, 11 L. R. A. (N. S.l 504, 13 Ann. Cas. 169; Petroski v. Mulvanity, 78 N. H. 252, 99 Atl. 88. But the case has been argued upon the theory that something more than a mere breach of an ordinary private agreement was involved, and, as the defect in the declaration is curable by amendment, the question whether upon the evidence the plaintiff could go to the jury upon any theory of liability has been considered.

The defendant is a public service corporation. P. S. c. 81, § 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. United Kingdom Tel. Co., L. R. 4 Q. B. 706.

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. Western Union, etc., Co., 107 Iowa, 356, 78 N. W. 63, 43 L. R. A. 214, 70 Am. St. Rep. 205; Glawson v. Southern, etc., Co., 9 Ga. App. 450, 71 S. E. 747.

The case of Hodges v. Virginia, etc., Railroad Co., 179 N. C. 566, 103 S. E. 145, 10 A. L. R. 1452, also relied upon by the plaintiff, was a suit against a stranger for wrongfully interrupting communication. It does not involve the present question, but merely deals with the law as to proximate and remote cause, as applied in the law of torts generally. And while it is held in that jurisdiction that an action of tort lies for failure to furnish service, the recovery of unusual consequential damages is limited to cases when the defendant had notice of the peculiar facts. Carmichael v. Southern, etc., Co., 157 N. C. 21, 72 S. E. 619, 39 L. R. A. (N. S.) 651, Ann. Cas. 1913B, 1117.

"It is immaterial under our system of practice whether the action is in tort for negligence in the discharge of a public duty, or for breach of a contract for prompt delivery, for the recovery in either case is compensation for the injury done the plaintiff, and which was reasonably in contemplation of the parties as the natural result of the breach of the contract or default in discharging the duty undertaken." Kennon v. Western Union, etc., Co., 128 N. C. 232, 35 S. C. 468.

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, 52 N. H. 430, 448, 449 )—they have also treated this duty of service as being essentially a status resulting from the consent of the parties and as being one where the liabilities incurred are limited accordingly. The measure of liability which has been arrived at by the application of these principles is stated in the early case of Primrose v. Western Union, etc., Co., 154 U. S. 1, 14 Sup. Ct. 1098, 38 L. Ed. 883:

"Telegraph companies resemble railroads * * * and other common carriers, in that they are instruments of commerce; and in that they exercise a public employment, and are therefore bound to serve all customers alike, without discrimination. * * * But they are not common carriers; their duties are different, and are performed in different ways, and they are not subject to the same liabilities. * * * Under any contract to transmit a message by telegraph, as under any other contract, the damages for a hreach must be limited to those which may be fairly considered as arising according to the usual course of things from the breach of the very contract in question, or which both parties must reasonably have understood and contemplated, when making the contract, as likely to result from its breach." 154 U. S. 14, 29, 14 Sup. Ct. 1098, 1100 (38 L. Ed. 883).

The action was in case for negligence.

"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. International Telegraph Co., 60 Me. 9, 25 (11 Am. Rep. 156).

"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 a 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. Western Union, etc., Co., 98 Mass. 232, 237, 93 Am. Dec. 157.

This also was an action on the case for negligence.

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. United States, etc., Co., 45 N. Y. 744, 6 Am. Rep. 165; Western Union, etc., Co. v. Sullivan, 82 Ohio St. 14, 91 N. E. 867, 137 Am. St. Rep. 754; U. S., etc., Co. v. Gildersieve, 29 Md. 232, 96 Am. Dec. 514; Beaupre v. Pacific & Atlantic Telegraph Co., 21 Minn. 155; Nash Co. v. Western Union Telegraph Co., 98 Neb. 210, 152 N. W. 387; Ferrero v. Western Union, etc., Co., 9 App. D. C. 455; Ferguson v. Anglo-American, etc., Co., 178 Pa. 377, 35 Atl. 979, 35 L. R. A. 554, 56 Am. St. Rep. 746; Fitch v. Western Union, etc., Co., 150 Mo. App. 149, 130 S. W. 44; Southern Telephone Co. v. King, 103 Ark. 160, 146 S. W. 489, 39 L. R. A. (N. S.) 402, Ann. Cas. 1914B, 780; Western Union, etc., Co. v. Wilson, 32 Fla. 527, 14 South. 1, 22 L. R. A. 434, 37 Am. St. Rep. 125; Candee v. Western Union, etc. Co., 34 Wis. 471, 17 Am. Rep. 452; Southwestern Telephone Co. v. Solomon, 54 Tex. Civ. App. 306, 117 S. W. 214; Postal, etc., Co. v. Lathrop, 131 Ill. 575, 23 N. E 583, 7 L. R. A. 474, 19 Am. St. Rep. 55; Wheelock v. Postal, etc., Co., 197 Mass. 119, 83 N. E. 313, 14 Ann. Cas. 188; Kolliner v. Western Union, etc., Co., 126 Minn. 122, 147 N. W. 961, 52 L. R. A. (N. S.) 1180; 3 Sed. Dam. § 879. If a broader liability could have been sustained by applying certain analogies to the earlier situations which had been passed upon, it is equally true that the law affords sufficient precedents for the conclusions reached.

While there are no cases in this state dealing...