Robinson v. Southern New England Tel. Co.

• Decision Date: 17 November 1953
• Citation: 101 A.2d 491,140 Conn. 414
• Parties: ROBINSON v. SOUTHERN NEW ENGLAND TEL. CO. Supreme Court of Errors of Connecticut
• Court: Connecticut Supreme Court

Page 491

101 A.2d 491

140 Conn. 414

ROBINSON v. SOUTHERN NEW ENGLAND TEL. CO.

Supreme Court of Errors of Connecticut.

Nov. 17, 1953.

Charles A. Watrous, New Haven, with whom were Thomas R. Robinson and Chester T. Corse, New Haven, for appellant (plaintiff).

Morris Tyler, New Haven, with whom were John H. Filer and John Lashnits, New Haven, for appellee (defendant).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, QUINLAN and WYNNE, JJ.

QUINLAN, Associate Justice.

This action was brought for breach of duty and negligence in failing to put through a telephone call for the plaintiff as requested by a neighbor and agent of the plaintiff and a subscriber of the defendant at Newtown. The jury returned a general verdict in favor of the plaintiff. The defendant made a motion to set aside the verdict and to render judgment in its favor in accordance with its motion for a directed verdict pursuant to Practice Book, § 234. The trial court granted the motion, and from the judgment rendered the plaintiff has appealed.

From the memorandum of decision, it appears that judgment for the defendant notwithstanding the verdict was rendered because, in the words of the trial judge, 'several essential elements in the chain of causation have not been established and * * * there was no basis for a finding of causal connection between the plaintiff's damage and the defendant's default without resorting to speculation and conjecture.' The question presented, then, is whether there was offered at the trial evidence upon which reasonable persons could have reached the conclusion that the plaintiff's damage was caused by the defendant's breach of duty. Both parties ask that, in the event error is found, a new trial be granted.

There was evidence from which the jury could reasonably have found the following facts: Prior to April 18, 1948, the plaintiff owned a cottage on the shore of Lake Zoar in the town of Newtown. It was about two miles distant from the settlement of Riverside in the town of Oxford on the west and of the Stevenson dam where the Riverside fire department was located. The cottage was about eight miles from the Sandy Hook fire department located in the settlement of Sandy Hook in the town of Newtown, and about ten miles from the Newtown fire department in the center of Newtown. The equipment of the Riverside fire department consisted, in 1948, of a 1926 Hahn truck, upon which was mounted a power-driven pump, with a 100-gallon tank of water, 'jet booster,' hose and appurtenances. The truck was old but in running condition. The jet booster had never been used at a fire, required priming and would fail in its functioning if the least bit of grit got in the so-called 'impeller.' The Sandy Hook fire department had similar equipment, with a 180-gallon booster tank but no jet booster. The Newtown fire department had a modern truck with a 500-gallon tank and an auxiliary pump for obtaining water from streams or bodies of water.

On April 18, 1948, a fire broke out in the cellar of the plaintiff's house and spread through a hot air duct to the linen closet above. Having attempted unsuccessfully to extinguish the fire, the plaintiff sent his wife to a neighbor's house half a mile distant. The neighbor asked a Newtown telephone operator to connect her with the Riverside fire department. This request was refused, and, instead, the operator summoned the Sandy Hook and Newtown fire departments. In the interval, the plaintiff, failing in his efforts to thwart the fire, closed the doors and windows in the house. The Newtown truck arrived at the scene fifteen or more minutes after the Sandy Hook equipment, which in turn did not arrive until fifteen minutes or more after the telephone call. At the time of the arrival of the Sandy Hook apparatus, the fire was mainly confined to the linen closet, but upon the failure of the Sandy Hook fire department to extinguish the fire it spread.

In considering the evidence upon which this statement of facts, as well as facts hereinafter referred to, is based, we must give the plaintiff 'the benefit of that construction most favorable to [his] claims.' Bernardo v. Hoffman, 109 Conn. 158, 159, 145 A. 884, 885; Hayes v. New York, N. H. & H. R. Co., 91 Conn. 301, 304, 99 A. 694; Greenhill v. Connecticut Co., 92 Conn. 560, 562, 103 A. 646. The plaintiff's claim is that, if the defendant had completed the call to the Riverside fire department, it could have responded in time to extinguish the fire before substantial damage had been done.

Before analyzing the evidence bearing upon the elements of causation essential to sustain the plaintiff's cause of action, we shall consider briefly the law pertaining to this kind of action. It is to be noted that in some of the states where such actions have been brought statutes existed imposing certain responsibilities on telephone companies with reference to messages. They do not, however, alter the basic requirements of proof as to causation. Among the cases are the following: Lebanon, L. & L. Tel. Co. v. Lanham Lumber Co., 131 Ky. 718, 115 S.W. 824, 21 L.R.A.,N.S., 115 and note; Volquardsen v. Iowa Tel. Co., 148 Iowa 77, 126 N.W. 928, 28 L.R.A.,N.S., 554 and note: Providence Washington Ins. Co. v. Iowa Tel. Co., 172 Iowa 597, 154 N.W. 874; Southwestern Telegraph & Telephone Co. v. Thomas, Tex.Civ.App., 185 S.W. 396; Forgey v. Macon Tel. Co., 291 Mo. 539, 237 S.W. 792. The defendant prevailed in all these cases on the ground which governed the instant case, viz., the damage sustained was too remote from the neglect of the telephone company and the causal relationship between the two too conjectural. In the more recent case of Boldig v. Urban Tel. Co., 1937, 224 Wis. 93, 271 N.W. 88, judgment was for the plaintiff upon a more favorable state of facts.

The facts on causation in the case at bar indicated an out-of-town exchange with a four-party line to reach the Riverside fire department; an absence of evidence as to whether the line was busy; no evidence as to the presence of the truck at the fire station; no evidence as to its running condition on that day as distinguished from its operating effectiveness; no evidence that a crew could be mustered; no evidence as to whether anyone other than William Beardsley would go without permission, if Beardsley was not available; no evidence that the fire commissioner from whom permission had to be obtained could be reached; no evidence that...