Christenson & Arndt, Inc. v. Wisconsin Tel. Co.

• Decision Date: 02 June 1953
• Court: Wisconsin Supreme Court
• Parties: CHRISTENSON & ARNDT, Inc., et al. v. WISCONSIN TEL. CO.

Page 682

58 N.W.2d 682

264 Wis. 238

CHRISTENSON & ARNDT, Inc., et al. v. WISCONSIN TEL. CO.

Supreme Court of Wisconsin.

June 2, 1953.

The plaintiffs at all of the times mentioned in the complaint were tenants in a building located at 235-239 North Main street in West Bend, Wisconsin. Each was engaged in selling merchandise at that location and each had a stock of merchandise and fixtures. The defendant is the owner and operator of the public telephone system in West Bend.

The complaint alleges that at 12:50 on the morning of December 20, 1950, two unnamed persons residing near the business building occupied by the plaintiffs discovered that said building was on fire; one of said persons immediately called the central station of the defendant and advised the operator that there was a fire in said building and where the building was, for the purpose of communicating said facts to the fire department of said city. The complaint further alleges that the West Bend fire department is a subscriber to telephone service from the defendant and that the defendant held out to the public that in the event of fire anywhere in the city of West Bend warning of the existence of said fire might be given by anyone having access to a telephone by obtaining a connection through the defendant's telephone exchange so as to inform the fire department of the existence of a fire; that the defendant was negligent in that the operator unduly delayed in answering the telephone and, although the operation acknowledged the message, she failed and refused to make any connection with the fire department or notify it of said fire; that the fire siren blew at 1:07 a. m.; Lloyd Christenson, one of the plaintiffs, upon hearing the fire siren, immediately went to the building in which he was a tenant, discovered the fire and crossed the street to a hotel for the purpose of calling by telephone his associate, in order to secure his help and that of other men employed by them for the purpose of moving trucks located outside the building and for the purpose of removing their merchandise that defendant's operator failed to answer the telephone for a period of ten minutes; after reporting to his associate Christenson returned to the building, discovered that the trucks were located and could not be moved without the help of a wrecker; he then returned to the hotel for the purpose of calling by telephone to secure the services of a wrecker to aid in the removal of said trucks so that he and others could then proceed to remove merchandise belonging to plaintiff, as well as that of other plaintiffs, in said building; he was again unable to get the telephone operator to answer although he tried for a period of ten minutes; he finally went out upon the street and found a police officer and enlisted his services the police officer radioed the sheriff's office in said city; the police officer attempted to phone central for a period of five minutes but failed to get any connection; the police officer then drove to the garage, which immediately responded, drove to the scene of the fire with a wrecker and removed the trucks with only slight damage by fire to one of said trucks; that because of the delay in making connections and answering the telephone, the fire department was delayed in reporting at the fire, and because thereof the building and the merchandise and fixtures belonging to the plaintiffs were burned; that the neglect of the defendant was the proximate cause of the loss of merchandise and fixtures by the plaintiffs, and each plaintiff demands judgment for his loss. The defendant demurred separately to the cause of action of each plaintiff. The plaintiffs appeal from an order sustaining the demurrers.

Walter D. Corrigan, Sr. and Thomas M. Corrigan, Milwaukee, for appellants.

George A. Hartman, Robert G. Hartman and Leo C. Hartman, Juneau, for respondent.

BROADFOOT, Justice.

The defendant relies upon the 'privity of contract' rule, and cites several cases from other jurisdictions that uphold the rule. Illustrative of these cases is that of Mentzer v. New England Telephone & Telegraph Co., 276 Mass. 478, 177 N.E. 549, which appears with an annotation in 78 A.L.R. 654. Under those cases the duty of a telephone company has been limited...