Southwestern Telegraph & Telephone Co. v. Thomas

• Decision Date: 15 March 1916
• Docket Number: (No. 5631.)
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. THOMAS.
• Court: Texas Court of Appeals

185 S.W. 396

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. THOMAS.

(No. 5631.)

Court of Civil Appeals of Texas. San Antonio.

March 15, 1916.

Rehearing Denied April 26, 1916.

Appeal from Guadalupe County Court; J. B. Williams, Judge.

Action by W. C. Thomas against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed, and judgment rendered that plaintiff take nothing.

A. P. Wozencraft, S. P. English, F. W. Wozencraft, and J. D. Frank, all of Dallas, for appellant. Greenwood & Short, of Seguin, for appellee.

CARL, J.

Appellee sued the Southwestern Telegraph & Telephone Company for damages, and alleged substantially that the telephone company owned and operated a telephone system in the city of Seguin, under a franchise from the city, and maintained a central office or exchange, where connections were made with its various telephones; that appellee was a regular subscriber, or patron, and had a telephone in his residence, for which he paid appellant $1.50 per month as rent, and for this consideration "defendant agreed to furnish to the plaintiff at all times telephonic communication over the telephone in plaintiff's house with all other telephones in said city of Seguin operated by the defendant, and especially the ones at the fire station and at the place where the fire chief lived, as well as the long-distance services to other places outside of Seguin"; that about 2:30 in the morning the plaintiff's private residence was discovered to be on fire, and the fire had gotten under considerable headway when discovered, and it was impossible for plaintiff and his family to extinguish the same; that he went to the telephone in his residence and rang the phone bell five or six times, trying to get in communication with the central office, but failed to get a response, and then his daughter made several attempts to get a response from "Central," but failed to do so until she had spent about 15 minutes; that H. E. Short, another subscriber, saw the fire consuming plaintiff's residence, and he tried to get the central office, but likewise failed. It is alleged that a volunteer fire department is maintained in Seguin, and George J. Kempen is the chief, who was to be notified by the company in case of fire, and if the central office had responded to the calls of plaintiff and his daughter or of H. E. Short, who was acting for plaintiff, at the time the fire was discovered, the members of the fire department would have been notified, and would have responded, together with friends and neighbors, who would also have been notified, and the two-story part of his house would have been saved. The house was composed of a one-story part where there was a store room, kitchen, and dining room, and a six-room two-story part of the residence adjoined the three one-story rooms where the fire originated. It is contended that the two-story part would have been saved if the plaintiff had been able to get central, and thereby have notified the fire department, but on account of the delay 30 minutes were lost, during which time the fire reached the two-story part of the house and got beyond control; that if the calls had been put through promptly, the fire department would have arrived 20 or 30 minutes earlier than it did, and would have saved the two-story part, but on account of the delay, the fire had reached the two-story part, and the water pressure was not strong enough to throw water on this part of the house, but was strong enough to reach the one-story part. The value of the two-story part, for which the suit was brought, is laid at $995. The petition alleges that the company ought to keep its lines in such condition that when a residence phone rings, a large alarm bell would ring at the central station or exchange, and given an alarm so as to awake the night operator, and the company was negligent in not so providing alarm bells. On answers to special issues judgment was entered in favor of appellee for $475, from which this appeal is prosecuted.

We will not state in detail the matters of defense pleaded, since all that will be necessary will appear in the following discussion: The judgment in this cause cannot stand because it is based upon speculation and acts of negligence too remote. In other words, the negligence of the appellant is not shown to have been the proximate cause of the injury. The whole case is predicated upon the theory that if the call had been answered promptly by the exchange operator, the fire would have been extinguished before it reached the two-story part. This presupposes that the fire department would have responded promptly, and there would have been no other mishap of any kind; that the water pressure would have been ample, and the fire apparatus in good working order, no adverse winds, etc. Appellee says he relied on the telephone company to get in communication with the fire station. He says he had a contract with the telephone company to furnish him telephonic communication with the other phones, including the fire chief's. This seems to have been the ordinary subscriber's contract. Kempen, the fire chief, testified as to the equipment for fire fighting, etc. There is testimony which indicates that the delay may have been caused by the failure of the alarm bell at the fire station to work. This was installed and maintained by the city of Seguin. The fireman who slept there could not hear an ordinary telephone bell from where he slept, but could hear the large bell. If it failed to work, he would not awaken. Some testimony indicates that the water pressure was weak, and that the fire could not be put out on that account; but one witness thought it was on account of defective hose; same having holes or leaks so as to lower the pressure. But whether it was for want of a proper alarm bell at the fire station that the house was lost, or defective hose or low-water pressure, the appellant would be responsible in neither event. In order to hold the failure of central to take and transmit the call to be the proximate cause of the loss, we must indulge the presumption that everything else would have turned out to perfection; that the fire station bell would have worked, and the fireman would have been awakened; that the department would have been called and would have responded promptly; that the apparatus would have been in good working order, and that nothing would have occurred to prevent the prompt arrival of the...