Forgey v. Macon Telephone Co.

• Decision Date: 09 February 1922
• Citation: 237 S.W. 792,291 Mo. 539
• Parties: WILLIAM S. FORGEY et ux., Appellants, v. MACON TELEPHONE COMPANY
• Court: Missouri Supreme Court

237 S.W. 792

291 Mo. 539

WILLIAM S. FORGEY et ux., Appellants, v. MACON TELEPHONE COMPANY

Supreme Court of Missouri

February 9, 1922

Appeal from Macon Circuit Court. -- Hon. Vernon L. Drain, Judge.

Affirmed.

Shelton & Shelton and Otho F. Matthews for appellants.

(1) The defendant's demurrer to the complaint on the ground that it did not state a cause of action should not have been sustained. Upon demurrer, conclusive and pointed allegations of fact in the complaint must be accepted as true and interpreted in the light most favorable to the plaintiff. Hodges v. Ry. Co., 179 N.C. 566, 10 A. L. R. 1452. The petition states that a fire was in progress covering a very small area of roof; that there was a contractual relation with the telephone company to connect it with the fire department of the city; that the fire department was ready, able and willing to respond and would have responded and would have put out the fire and had the necessary equipment so to do and could have been to the place within four minutes, and during the four minutes of time and for some time thereafter, it could have put out the fire, had the connection been made, together with the other necessary allegations stating a cause of action for damages. Everyone of these allegations are admitted to be true by the demurrer and they clearly state a cause of action, both from a standpoint of right, justice, law and public policy. (2) The complaint pleads a violation of the contractual relation between the plaintiffs and the defendant and on account of the violation of the contractual relation the damages occurred. The damages are not remote. They are directly traceable to the defendant's negligence. Consequently the petition states a cause of action. Hodges v. Ry Co., 10 A. L. R. 1455, Annotation note, p. 1457; Glawson v. So. Bell Tel. & Tel. Co., 9 Ga.App. 450, 13 Ga.App. 520; Tel. Co. v. Morris & Co., 243 F. 481. In Lebanon Tel. Co. v. Lumber Co., 131 Ky. 718, 21 L. R. A. (N. S.) 115, 18 Ann. Cas. 1066, it was held that the separate agencies were wholly independent of each other, and none of them under the direction or subject to the control of the defendants, and that there must have been a series of presumptions indulged in. But that differs from the case at bar, because the case at bar pleads specific facts, and if those specific facts were proven and linked together there would have been no presumptions indulged in.

George N. Davis and Ed. S. Jones for respondent.

(1) When a petition shows on its face that many of the elements which must enter into the result are conjectural and wholly uncertain, a demurrer does not admit a statement of the conclusions deduced from such uncertain circumstances, and a demurrer to a petition based upon such elements should be sustained. In this case, the damages sought to be recovered are too uncertain, speculative and remote. The facts necessary to correct defendant's alleged neglect with the damages sued for must not rest upon uncertain or indeterminate premises. Lebanon L. & L. Co. v. Lanham, Co., 131 Ky. 718; Volquardsen v. Iowa Tel. Co., 146 Iowa 77; Ins. Co. v. Iowa Tel. Co., 172 Iowa 597; Evans v. Cumberland Tel. & Tel. Co., 135 Ky. 66, 135 Am. St. 444, 121 S.W. 959; S.W. Tel. & Tel. Co. v. Thomas, 185 S.W. 396; Ruckner v. Guineshore Tel. Co., 158 Ky. 693, 182 S.W. 843; So. Bell Tel. & Tel. Co. v. Reynolds, 139 Ga. 385; So. Bell Tel. & Tel. Co. v. Glawson, 140 Ga. 507. The petition shows on its face that there is uncertainty as to the course of the damages pleaded as well as to the extent of the same. Therefore, the demurrer was properly sustained, for the reason that the cause of action as well as the damages, is too speculative and remote. (2) The proximate cause of the damage claimed by the plaintiff was the fire, with which the defendant had nothing to do. Whether the fire department was ready to respond or would have responded; whether it had the necessary equipment so to do, are all matters of speculation and conjecture, and whether it would have put it out at all, it not being on the ground, not knowing the direction or velocity of the wind or any of the other numerous causes which control the progress of a fire is entirely too uncertain, remote and etherial to base a cause of action upon. (3) There is absolutely no privity of contract between the city and the fire department on the one hand and either the plaintiff or the defendant, on the other, so that as far as both the plaintiff and the defendant are concerned, the city and the fire department were under no obligations to respond to any fire call or to save the plaintiff's furniture from damage. Even though the defendant was under contract to render the telephone service with the fire department, the fire department owed the plaintiff no legal duty to respond when called. Phoenix Ins. Co. v. Waterworks Co., 42 Mo.App. 118; Howsmon v. Waterworks Co., 119 Mo. 304. A municipal corporation, so far as maintaining a city fire department is concerned, acts as a public corporation and a political subdivision of the State. It maintains a fire department for the protection of its inhabitants, as a class, and not for the benefit of the individual and an action will not lie against it for negligent or wilful failure to answer a fire call; neither is any company rendering general service, such as water protection, telephone service, etc., liable for individual loss. Hopt v. Elec. L. & W. Co., 114 S.W. 1099; Metz v. Same, 202 Mo. 324. (4) This case was based upon a contract for general telephone service and there was no undertaking on the part of the defendant to maintain or furnish a fire alarm system or service. Such was not within the contemplation of the parties at the time the contract was made, and there was nothing about this or any other telephone call to notify the defendant that any unusual damage might accrue, from fire or otherwise, for a delay in answering the same. Under these circumstances, the courts are almost a unit in holding such damages to be too remote to warrant a recovery because not within the contemplation of the parties at the time the contract was made. Kerns & Lorton v. W. Tel. Co., 174 Mo.App. 435. Damages for breach of contract may be recovered when they are such as may fairly and reasonably be considered as arising naturally, that is, according to the usual course of things, from such breach, or as may reasonably be supposed to have been in the contemplation of the parties at the time they made the contract or as the probable result of a breach thereof. W. U. Tel. Co. v. Edmonson, 91 Tex. 109, 10 A. L. H. 1452; S.W. Tel. & Tel. Co. v. Solomon, 54 Tex. Civil App. 306; Evans v. Cumberland Tel. & Tel. Co., 135 Ky. 66.

SMALL, C. Ragland, C., concurs; Brown, C., not sitting. James T. Blair, C. J., concurs in paragraph 1 and the result; David E. Blair, Elder and Walker, JJ., concur; Graves and Higbee, JJ., dissent; Woodson, J., absent.

OPINION

In Banc.

SMALL C.

-- Suit for $ 10,000 damages for destruction of plaintiffs' property in the city of Macon, by fire. The lower court sustained a general demurrer to the petition. Plaintiffs refusing to plead further, final judgment was rendered in favor of the defendant, from which plaintiffs appealed. Appellants' statement of the case in their brief, which we adopt, is as follows:

Plaintiffs are husband and wife. Defendant is a telephone corporation, operating a telephone system in the city of Macon, Missouri, and in said city rent out telephones to the different patrons for a monthly rental, and among the telephones so rented was one rented to the plaintiffs and located in their residence; that said telephone system gives a night-and-day service, and that the city of Macon is a city of the third class, operating a fire department, which is ready for both night and day service, at all times. Said fire department is located at a central point in said city, and at all times stated in the petition the fire department was on the job and attending to the duties of its employment, and was ready, able and willing to immediately answer any fire alarm turned in to them at headquarters of the fire department in the city of Macon, Missouri.

The petition in this case pleads that the telephone company, at said time, was under contract with the city to furnish a reasonable and sufficient telephone service with the city fire department and to convey thereto, through its telephone lines and instruments, any information it might have pertaining to any fire or fires that might break out in the city; that the city fire department also had a telephone, and under the contract with the city was connected with all telephones in the city of Macon and all other patrons of said telephone company.

The petition pleads that the telephone of the plaintiffs and those in other residences in the city of Macon were for a valuable consideration, and said consideration was pay for said telephone and service, and that the company agreed, with all its subscribers, to give reasonable service, and that they were obligated to use reasonable care and diligence to furnish to the said plaintiffs and all other subscribers reasonable and sufficient telephone service in the city of Macon, Missouri; that the contract with the city fire department was to the effect that the telephone company should furnish to its subscribers a good and efficient telephone connection with the fire department of the city of Macon; that located in the dwelling of the plaintiffs was much valuable furniture and household goods and the usual accoutrements located in a dwelling house; that about the 13th day of November, 1919, between the hours of 10:30 and 11 o'clock in the morning, it was discovered by one of the plaintiffs, Minnette S. Forgey, that a...