Lebanon, Louisville & Lexington Telephone Co. v. Lanham Lumber Co.

• Decision Date: 27 January 1909
• Citation: 115 S.W. 824,131 Ky. 718
• Parties: LEBANON, LOUISVILLE & LEXINGTON TELEPHONE CO. et al. v. LANHAM LUMBER CO.
• Court: Kentucky Court of Appeals

115 S.W. 824

131 Ky. 718

LEBANON, LOUISVILLE & LEXINGTON TELEPHONE CO. et al. v. LANHAM LUMBER CO.

Court of Appeals of Kentucky.

January 27, 1909

Appeal from Circuit Court, Marion County.

"To be officially reported."

Action by the Lanham Lumber Company against the Lebanon, Louisville & Lexington Telephone Company and another. Judgment for plaintiff, and defendants appeal. Reversed, with instructions to dismiss the petition.

Fairleigh Straus & Fairleigh and Henry S. McElroy, for appellants.

D. H Smith, H. W. Rives, and S. T. Spalding, for appellee.

LASSING J.

The Lanham Lumber Company, a corporation, is engaged in the manufacturing of hardwood flooring, etc., at Lebanon, Ky. On the night of July 4, 1907, at some time after midnight, a fire started in the boiler room at its plant, and spread from there to the main buildings, a few feet away, and in a comparatively short time they were all destroyed, except one warehouse. The origin of the fire is unknown. The Lebanon Louisville & Lexington Telephone Company is a Kentucky corporation with its principal place of business at Lebanon where it is engaged in operating a telephone system. The Cumberland Telephone & Telegraph Company is also a Kentucky corporation, doing a general telephone business throughout Kentucky, and especially in Marion county, where it connects with the Lebanon, Louisville & Lexington Company's telephone system, and furnishes the connection for the last-named company with other points in Kentucky and elsewhere. It appears that the Cumberland Telephone & Telegraph Company now owns the Lebanon, Louisville & Lexington Company, though the corporate existence of the latter is still kept up. At the date of the fire, and for some years before, the Lebanon, Louisville & Lexington Telephone Company was furnishing the said Lanham Lumber Company with telephone service. Shortly after the fire the Lanham Lumber Company brought suit against both telephone companies to recover $22,000, the damages which it alleged it had sustained by reason of the fire. It was charged in the petition: That the loss was due to the negligence of the defendant companies in failing to promptly effect the telephone connection between the night watchman on their premises and the local fire engine house in Lebanon; that when their said night watchman discovered the boiler house to be on fire he at once rang Central for the purpose of telephoning the alarm to the engine house; that the central office failed to answer his call, and that it was only after he had made repeated efforts, during an interval covering some 20 or 30 minutes, that he succeeded in getting Central to answer, and furnish the needed connection. In the meantime the fire had gained such headway that when the fire department reached the scene it was beyond control, and the buildings and their contents were totally destroyed. Each company filed a demurrer to the petition, and also filed a motion that plaintiff be required to furnish a list of the property contained in the building. This latter motion was sustained, and plaintiff filed a list of the property lost in the fire. The demurrers were overruled. Each company then answered, traversing the allegations of the petition in so far as it sought to charge them with negligence, and pleaded affirmatively that plaintiff's loss was due to the negligence of its night watchman, and that this failure to promptly give the fire alarm was the proximate cause of the company's loss. Thereafter the defendant companies filed an amended answer, in which they charged that the plaintiff had the buildings and contents, which were destroyed by fire, fully insured, that the insurance company had paid the insurance, and that by reason thereof plaintiff had sustained no loss at all. A demurrer was sustained to this amended answer. Plaintiff replied traversing the second paragraph of the answer, which completed the issues. Upon the issues thus joined a trial was had which resulted in a hung jury. A second trial resulted in a verdict for $10,000 in favor of plaintiff, against both companies. Motions for a judgment notwithstanding the verdict and a new trial were in turn overruled, and the defendants appeal.

Several grounds are relied upon for reversal, chief of which is that the court erred in overruling the demurrers to the petition. After setting out at some length a description of the buildings burned, for which a recovery is sought, and the fact that plaintiff is a subscriber to defendants' telephone service, and that telephones are maintained in the offices of the city officials, the state of facts, upon which plaintiff seeks to hold defendants liable, are pleaded as follows: "On July 5, 1907, the night watchman of plaintiff, in due performance of his duties, discovered that the boiler house at plaintiff's manufactory was on fire, but that if the fire company could be promptly summoned the fire would be arrested before it could reach and burn the mill and other buildings, which were close to, but disconnected from, the said boiler house. The said night watchman immediately, at about 15 minutes after 2 o'clock a. m., went to plaintiff's telephone, which was in good working order and duly connected with the exchange, and thereupon rang the bell and tried in the usual manner to call defendant's operator at the exchange, in order to be connected with the telephone at the city hall, and summon the fire company. Defendant, however, through its gross and willful negligence, wholly failed to respond to said call, or to give any evidence that any operator was at the exchange, and though the night watchman continued for a considerable time to ring the bell and try to arouse the operator, he could not induce any response whatever. The said night watchman, after spending considerable time in the vain and useless effort to arouse defendant's operator at the exchange, then tried by shooting his pistol several times and in other ways to arouse other persons so that there might be assistance in rousing the fire company, and at about 10 minutes before 3 o'clock, after the fire had communicated to the main building, and with the inflammable material therein contained, the fire bell was rung. The fire company within a few minutes thereafter reached the scene of the fire, but too late to save any portion of the plant or outfit save the warehouse and contents on the south side of the main building. Plaintiff says that but for the gross and willful negligence of defendant in failing and refusing to respond to the call by plaintiff's watchman, and in failing and refusing to connect plaintiff's office telephone with that in the city hall, the fire alarm would have been given, the fire bell promptly rung, the fire company would have reached the fire at least one-half hour before it did reach it, and before the fire had extended beyond the boiler house, and the fire would in such event have been easily put out with no loss to plaintiff, save a very trifling amount of damage to the boiler house. Plaintiff says that from the ringing of the fire bell to the arrival of the fire company at the plant, with reel, hose, and all equipments for fighting fire, much less time elapsed than had elapsed between the efforts of plaintiff's watchman to arouse defendant's operator and the spread of the fire beyond the boiler house, and, if reasonably prompt connection had been given, the fire company would certainly have been on the ground ready to control the fire and extinguish it while yet confined to the boiler house. When the said company did arrive, however, the unreasonable delay had been such on account of defendant's negligence that the main building had caught fire, and a large amount of material, finished and unfinished, therein contained, was so dry and inflammable that it was impossible for the fire company, with all the means at its command, to arrest the conflagration, and the necessary and inevitable result was that plaintiff's main building, with its contents, the dryhouse or kiln, with its contents, the sawmill building, and the warehouse north of the main building, together with a large amount of costly and valuable machinery, and much valuable material, finished and in process of manufacture, were totally destroyed; the value of such destroyed property, outside of the boiler house, being not less than $22,000, none of which would have been injured but for the negligence of defendants, as hereinbefore set out."

The petition does not charge that defendants were under any contract with the city of Lebanon to maintain a fire alarm system in the city, and hence their liability must be determined under their general contract with their patrons. They agree to furnish connection between the patrons, upon request and subject to such reasonable rules as might properly be adopted and enforced in a town of the size of Lebanon. Plaintiff, evidently knowing that there was no contract obligation on the part of the defendant companies which made them liable as though operating a fire alarm system, and, no doubt, realizing that the contract which it did have could hardly be construed so as to charge that the liability sought to be imposed was within the reasonable contemplation of the contracting parties, has sued in tort. The primary question to be determined is: Was the failure of the...