Foss v. Pacific Tel. & Tel. Co.

• Decision Date: 01 October 1946
• Docket Number: 29971.
• Citation: 173 P.2d 144,26 Wn.2d 92
• Court: Washington Supreme Court
• Parties: FOSS v. PACIFIC TELEPHONE & TELEGRAPH CO.

173 P.2d 144

26 Wn.2d 92

FOSS v. PACIFIC TELEPHONE & TELEGRAPH CO.

No. 29971.

Supreme Court of Washington

October 1, 1946

Department 1

Action by Aage Foss against the Pacific Telephone & Telegraph Company to recover damages for the destruction of plaintiff's buildings and fixtures and for loss of future profits as result of fire allegedly caused by defendant's negligent delay in supplying telephone connection to a fire department. From a judgment of dismissal on plaintiff's refusal to plead further after a demurrer had been sustained to complaint, the plaintiff appeals.

Judgment affirmed.

Appeal from Superior Court, King County; James T. Lawler, judge.

Murray & Hedgcock, of Seattle, for appellant.

McMicken Rupp & Schweppe and John N. Rupp, all of Seattle, for respondent.

MILLARD Justice.

This action was brought to recover for destruction of plaintiff's buildings and fixtures and for loss of future profits, by fire alleged to have resulted from defendant's nengligent delay in supplying telephone connection to a fire department. The appeal is from the judgment of dismissal rendered upon plaintiff's refusal to plead further after a demurrer had been sustained to his complaint.

There is no claim that the fire was started or caused by respondent's neglect. Respondent's liability is based on appellant's claim that a delay in respondent's telephone service delayed arrival of fire department from nearby town at scene of fire in time to extinguish the fire. The allegations of the complaint are summarized follows:

Respondent a foreign corporation, is engaged in the telephone business in this state and represents to the public that it will conduct its business with reasonable care, diligence and dispatch in accordance with legal requirements. Appellant owned and operated a dance hall, restaurant and recreation building designated as 'Foss's Shadow Lake.' Appellant entered into a contract with respondent for telephone service and was supplied with a telephone instrument and connections with respondent's Seattle exchange some time prior to the date of the fire which destroyed appellant's building. The fire department of the town of Kent was also a subscriber for respondent's telephone service. About 3:30 a.m., June 3, 1945, a small fire was discovered in the rear of appellant's building. Appellant immediately attempted to telephone the Kent fire department but respondent's telephone operator in Seattle failed to respond to his call for a period of at least fifteen minutes. The Kent fire department was at all times ready, willing and able to respond to the call received from appellant, and that department immediately responded to appellant's call when finally completed fifteen minutes later. The fire department arrived at the scene of the fire ten to twelve minutes from the time the call was received by it. 'That if they had arrived five minutes sooner they could have saved the building with only minor and inconsequential damage resulting.'

Appellant further alleges that by reason of the neglect of respondent's operators to promptly connect his telephone line to the Kent fire department appellant's building, together with the furniture, fixtures and merchandise therein, were destroyed by fire.

The complaint of appellant alleges a contract of appellant with respondent and a negligent failure on the part of respondent to perform the same. The gravamen of the action is a breach of contract, and the rule of measure of damages for such breach of contract is enunciated as follows in Sedro Veneer Co., v. Kwapil, 62 Wash. 385, 113 P. 1100, 1102:

'The general rule of measure of damages growing out of a broken contract is stated in the leading English case of Hadley v. Baxendale, 9 Exch. 341, 353, as follows:

"Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably bo considered either arising naturally, i.e., according to the usual course of things, from such breach of contract it self, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount of injury which would arise generally, and in the great multitude of cases not affected by any special circumstances, from such a breach of contract."

'This is probably as comprehensive a statement of the general rule as can be found in any of the authorities, and but few statements of general principles have been more uniformly approved by the courts.'

See paraphrase of the rule in Restatement of the Law of Contracts, § 330, p. 509. In the Washington Annotations of 1935 to that section is the statement that the rule of this state is in accord with the Restatement, following which is a long list of our cases supporting the statement.

This contract rule has been the standard of decision in the telegraph cases ever since it was enunciated in 1888 in Western Union Telegraph Co. v. Hall, 124 U.S. 444, 8 S.Ct. 577, 31 L.Ed. 479. See, also, Primrose v. Western Union Telegraph Co., 154 U.S. 1, 29, 14 S.Ct. 1098, 1106, 38 L.Ed. 883, in which the supreme court of the United States said:

'Beyond this, under any contract to transmit a message by telegraph, as under any other contract, the damages for a breach 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.'

In Hildreth v. Western Union Telegraph Co., 56 Fla. 387, 47 So. 820, 821, plaintiff alleged that defendant negligently delayed delivery of a telegram filed with it by the plaintiff requesting plaintiff's husband to meet her at a certain time and place, and that the delay caused the husband to be three days late by reason of which the plaintiff who was ill was prevented from being taken to a hospital and as a result she suffered increased illness and pain. On appeal the allegations of special damages were stricken since the likelihood of such damages was not communicated to the defendant. The public policy sustaining the rule announced in Western Union Telegraph Co. v. Hall, supra, is stated as follows by the Florida supreme court:

'Public utility corporations should, as contemplated by law, be required to furnish a prompt and efficient service reasonably adequate to meet the just demands of the public, and to respond in damages for negligent injuries; but, as also contemplated by law, they should not be required to compensate injuries for which in law they are not responsible. Unlawful requirements of public service corporations would cause unjust injury to those whose labor and property are used in rendering the service, and injuriously affect the service and rates afforded the public, thereby violating positive law and public policy.

'Damages may not be recovered for all the injuries consequences that might be shown to have resulted whether proximately or contemplated or not from mere negligence in performing a stipulated or legal duty or service. A rule authorizing such a recovery would be patently unjust and detrimental to the public welfare. But, where there is negligence and no contributory negligence, damages may be recovered for such injurious consequences as follow in ordinary, natural sequence from the negligence, or such as reasonably should have been contemplated as the ordinary natural result of the negligence had proper attention been given to the subject.'

In the year 1909 the foregoing contract rule of damages was applied in a telephone case by the Texas Civil Appeals Court in Southwestern Telegraph & Telephone Co. v. Solomon, 54 Tex.Civ.App. 306, 117 S.W. 214, 118 S.W. xv. In that case the plaintiff was a subscribed for defendant's telephone service. About 2:00 a. m., February 5, 1906, plaintiff's wife 'was taken ill with child birth,' and plaintiff attempted to telephone a doctor. Due to negligent failure in defendant's telephone service plaintiff was unable to obtain contact with the central telephone exchange. This forced him to depart from home and ride a horse to summon a physician. When the physician arrived he was too late to save the mother and she died. It was alleged that had the physician been summoned promptly he would have arrived in time to have saved the life of the woman. Plaintiff's action on those facts for damages for wrongful death resulted in judgment in his favor in the trial court. On appeal it was held that defendant's demurrer should have been sustained for the reason that the action was one for breach of contract and the contract rule of damages ( Hadley v. Baxendale, 9 Exch. 341) precluded recovery of the special damages. The court said:

'Tested by this rule, we think the damages in the circumstances are too remote and are not such as both parties would reasonably have understood and contemplated as likely to result from the breach of the contract or the negligence of the company.'

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