Boldig v. Urban Tel. Co.

• Decision Date: 12 January 1937
• Citation: 271 N.W. 88,224 Wis. 93
• Parties: BOLDIG v. URBAN TELEPHONE CO.
• Court: Wisconsin Supreme Court

224 Wis. 93

271 N.W. 88

BOLDIG

v.URBAN TELEPHONE CO.^*

Supreme Court of Wisconsin.

Jan. 12, 1937.

Appeal from a judgment of the County Court of Shawano County; F. A. Jaeckel, Judge.

Affirmed.

This action was commenced on September 17, 1935, by the plaintiff, Fred Boldig, to recover from the defendant Urban Telephone Company, a Wisconsin corporation, certain damages asserted to have been occasioned by the refusal of the defendant's operator at its Marion exchange, to connect his phone with that of the assistant fire chief at Bowler, at a time when the plaintiff's sawmill was threatened by fire. Trial was had to the court and a jury. At the conclusion of the plaintiff's case, the defendant moved for a nonsuit, which the court denied. Upon the closing of the testimony, the defendant moved the court to direct a verdict in its favor. That motion was also denied. The jury found (1) that the plaintiff sustained a pecuniary loss because of the failure of the defendant to give him telephone connections with the Bowler fire department, and (2) that because of such failure to give the plaintiff telephone connections, the plaintiff sustained damages of $1,500. Upon the coming in of the verdict, the defendant moved for judgment notwithstanding the verdict, to change the answer of the jury to question 1, from “Yes” to “No” and for judgment on the verdict as so amended, to change the answer to question 2, from “$1,500” to “nothing” and, in the alternative, for a new trial on the grounds, among others, that the court erred in admitting and rejecting testimony, and in denying defendant's motion for a nonsuit. The court denied all of defendant's motions. From a judgment entered June 1, 1936, on the verdict as rendered, the defendant appealed. The facts will be stated in the opinion.Goggins, Brazeau & Graves, of Wisconsin Rapids, for appellant.

Eberlein & Larson, of Shawano, for respondent.

NELSON, Justice.

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, 26 feet wide and 80 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 on the southwest side thereof was a building described as the “filing room.” It was a one-story building and housed the water power. Next to the filing room was a lean-to described as the boiler room. The mill was located on the bank of the Embarrass river and within 20 feet therefrom. At the time fixed by the plaintiff's witnesses as about 9:15 p. m., a fire was discovered in a pile of kiln wood near the boiler house. Whereupon, Lee Boldig, one of the plaintiff's adult sons, ran to his father's house, a distance of about 13 rods, where he met one Hanson, who had just arrived in his automobile. Boldig requested Hanson to contact the Bowler fire department and to request it to come out and assist in putting out the fire. Hanson suggested that Kriewaldt, who resided immediately across the road from the firehouse in Bowler, be called. In calling a subscriber at Bowler it was necessary to call the exchange at Marion. Hanson called the operator at Marion on the plaintiff's telephone and requested a connection with Kriewaldt's residence, whereupon the operator said, “hold the line a minute.” She then asked the number of the telephone that was calling and the correct number was furnished. She then told Hanson that that telephone was not entitled to service because it was in default (concededly an error on her part). He then asked: “Can't we have service in case of fire?” and the operator replied “Sorry.” Hanson then told her to “Go to hell” and hung up the receiver. According to the plaintiff's testimony, the call mentioned was put in at about 9:20. The fire spread to the boiler house, then to the filing room, and finally to the roof of the west end of the mill. Hanson testified that at 9:45, one-half hour after he first saw the fire, it was just starting on the main roof over the machinery and equipment. Matt Hanson, another witness, testified that at 9:45, half an hour after the fire was discovered, the fire was creeping over the top of the mill roof. Berton Faevel testified that at 9:45, the west end of the mill was just beginning to catch fire. Lee Boldig testified that at 9:45, one-half hour after the fire was discovered, the fire was confined to the top of the filing room roof, and was, at that time, creeping up on to the mill roof; that at that time the fire was not in the mill at all; that it was three quarters of an hour before the fire actually got into the mill proper where the machinery was located. The wind that night was against the fire. A bucket brigade did what it could to retard the spread of the fire. The Bowler fire department was under no obligation to render any service to the plaintiff, since his mill was located outside of the village of Bowler but it appears that the Bowler fire department had many times responded to such calls upon being requested so to do, the consent of the president of the village or of a member of the board of trustees being first obtained. The president of the village testified that had the request been made he would have consented promptly to the fire department's proceeding to the Boldig fire. It further appears that Kriewaldt, who was the assistant fire chief at Bowler, was at his home and would in all probability, have received the message, had the requested connection not been refused. It further appears, that it would have taken about ten minutes to obtain the consent of the president, to sound the alarm, and to muster enough of a crew to manage the Bowler fire fighting equipment which was installed upon a truck; that it would have taken not over eighteen minutes to drive the truck from Bowler to the Boldig mill and not over five minutes to commence to pump and throw water. It further appears that the equipment was in good condition and capable of throwing 360 gallons of water per minute. One Hilliker, a fire warden, arrived at the fire at about 10:15 and upon being informed of the refusal of the defendant to connect the Boldig residence with the Bowler fire department, volunteered to drive into Bowler, inform the department, and request that the fire department come out to the fire. Hilliker contacted a member of the fire department who in turn contacted the president of the village, who promptly gave his consent to the equipment going to the fire. The alarm was sounded, a crew mustered, and the fire truck was driven to the mill. It arrived at the mill considerably more than an hour later than it would have arrived there had the telephone connection been given. At that time the mill was practically destroyed, but the department effectively checked the fire in the course of a few minutes. A number of witnesses who were present at the fire, who observed its progress, who later on saw the Bowler fire department in operation, were permitted to state their opinions as to the length of time it would have taken the Bowler fire department to put out the fire, had it been at the fire at 9:30 or 9:45; and also as to the amount of damages that would have been sustained had the fire been extinguished at those times. This testimony was objected to as incompetent because the witnesses were not qualified to give expert opinions.

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. City of 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 to respond, there could be no legal liability of the defendant company in failing to give the plaintiff a connection; and (3) the plaintiff's case is grounded only on speculation and conjecture and the damages are too remote to afford a basis of recovery. In support of its contentions, the defendant cites Forgey v. Macon Telephone Co., 291 Mo. 539, 237 S.W. 792, 794, 19 A.L.R. 1413;Lebanon, L. & L. Telephone Co. v. Lanham Lumber Co., 131 Ky. 718, 115 S. W. 824, 826, 21 L.R.A. (N.S.) 115, 18 Ann. Cas. 1066;Valquardsen v. Iowa Telephone Co., 148 Iowa, 77, 126 N.W. 928, 930, 28 L.R.A.(N.S.) 554;Providence Washington Ins. Co. v. Iowa Telephone Co., 172 Iowa, 597, 154 N.W. 874.

[1] Before discussing the cases cited, attention is directed to the provisions of two sections of our statutes which materially bear upon this controversy. Section 180.19, 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.”

Section 175.06, 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,...