Opinion
May 6, 1953 —
June 2, 1953.
APPEAL from an order of the circuit court for Washington county: W. C. O'CONNELL, Circuit Judge. Reversed.
For the appellants there was a brief by Corrigan Corrigan of Milwaukee, and oral argument by Thomas M. Corrigan.
For the respondent there was a brief by George A. Hartman, Robert G. Hartman, and Leo C. Hartman, all of Juneau, and oral argument by Leo C. Hartman.
The plaintiffs at all of the times mentioned in the complaint were tenants in a building located at 235-239 North Main street in West Bend, Wisconsin. Each was engaged in selling merchandise at that location and each had a stock of merchandise and fixtures. The defendant is the owner and operator of the public telephone system in West Bend.
The complaint alleges that at 12:50 on the morning of December 20, 1950, two unnamed persons residing near the business building occupied by the plaintiffs discovered that said building was on fire; one of said persons immediately called the central station of the defendant and advised the operator that there was a fire in said building and where the building was, for the purpose of communicating said facts to the fire department of said city. The complaint further Alleges that the West Bend fire department is a subscriber to telephone service from the defendant and that the defendant held out to the public that in the event of fire anywhere in the city of West Bend warning of the existence of said fire might be given by anyone having access to a telephone by obtaining a connection through the defendant's telephone exchange so as to inform the fire department of the existence of a fire; that the defendant was negligent in that the operator unduly delayed in answering the telephone and, although the operator acknowledged the message, she failed and refused to make any connection with the fire department or notify it of said fire; that the fire siren blew at 1:07 a. m.; Lloyd Christenson, one of the plaintiffs, upon hearing the fire siren, immediately went to the building in which he was a tenant, discovered the fire, and crossed the street to a hotel for the purpose of calling by telephone his associate, in order to secure his help and that of other men employed by them for the purpose of moving trucks located outside the building and for the purpose of removing their merchandise; that defendant's operator failed to answer the telephone for a period of ten minutes; after reporting to his associate, Christenson returned to the building, discovered that the trucks were locked and could not be moved without the help of a wrecker; he then returned to the hotel for the purpose of calling by telephone to secure the services of a wrecker to aid in the removal of said trucks so that he and others could then proceed to remove merchandise belonging to plaintiff, as well as that of other plaintiffs, in said building; he was again unable to get the telephone operator to answer although he tried for a period of ten minutes; he finally went out upon the street and found a police officer and enlisted his services; the police officer radioed the sheriff's office in said city; the police officer attempted to phone central for a period of five minutes but failed to get any connection; the police officer then drove to the garage, which immediately responded, drove to the scene of the fire with a wrecker, and removed the trucks with only slight damage by fire to one of said trucks; that because of the delay in making connections and answering the telephone, the fire department was delayed in reporting at the fire, and because thereof the building and the merchandise and fixtures belonging to the plaintiffs were burned; that the neglect of the defendant was the proximate cause of the loss of merchandise and fixtures by the plaintiffs, and each plaintiff demands judgment for his loss. The defendant demurred separately to the cause of action of each plaintiff. The plaintiffs appeal from an order sustaining the demurrers.
The defendant relies upon the "privity of contract" rule, and cites several cases from other jurisdictions that uphold the rule. Illustrative of these cases is that of Mentzer v. New England Telephone Tel. Co. 276 Mass. 478, 177 N.E. 549, which appears with an annotation in 78 A.L.R. 654. Under those cases the duty of a telephone company has been limited to its agreement to place its subscribers in communication with one another by affording to each a mechanical connection, through its central office, with other subscribers. These cases hold that, although a telephone company breaches its duty toward a subscriber in refusing or unduly delaying to complete a connection sought for the purpose of calling the fire department, this affords no cause of action to a third person whose property was burned. Thus, the defendant contends that none of the plaintiffs can derive benefit from defendant's alleged breach of its obligation to the unnamed person who notified defendant's operator of the fire. It also contends that Christenson Arndt, Inc., cannot derive benefit from defendant's alleged failure or undue neglect to make connection with the garage affording a wrecker service because Christenson was making the call over a telephone at the hotel and not over a phone to which he or his company was a subscriber.
The plaintiffs, however, contend that Wisconsin does not follow the "privity of contract" rule and they cite two Wisconsin statutes which make that rule inapplicable and in place thereof have made telephone companies liable in tort for the negligence of their operators in furnishing telephone service. These statutes are secs. 182.019 (formerly sec. 180.19) and 175.06. Sec. 182.019, so far as applicable here, provides:
"Persons owning or operating any . . . telephone . . . line . . . for public purposes shall be liable for all damages occasioned by the failure or negligence of their operators, servants, or employees in receiving . . . transmitting, or delivering . . . messages. . . ."
Sec. 175.06, Stats., provides in substance that it shall be the duty, of every telephone company to connect the telephone of subscribers with the telephone of any other person having a connection with its central exchange whenever requested to do so without unreasonable delay. Nothing is said in either statute about "privity of contract." The statutes above referred to were considered by this court in the case of Boldig v. Urban Telephone Co. 224 Wis. 93, 271 N.W. 88.
In the Boldig Case, the plaintiff owned a sawmill situated about four miles from the village of Bowler in Shawano county. At about 9:15 p. m. a fire was discovered in a pile of wood near the mill. One of plaintiff's adult sons ran to his father's house a short distance away, where he met one Hanson, who had just arrived in his automobile. Plaintiff's son requested Hanson to contact the Bowler fire department and to request it to come out and assist in putting out the fire. In calling Bowler it was necessary to call the telephone exchange at Marion. Hanson called the operator at Marion on plaintiff's telephone and asked to be connected with one Kriewaldt, who resided immediately across the road from the firehouse in Bowler. The operator asked the number of the telephone that was being used and the number was given. She then told Hanson that the telephone was not entitled to service because it was in default. Later this was conceded to be an error on her part. In that case a judgment in favor of the plaintiff was affirmed by this court. In its opinion the court said that the words "transmitting or delivering" found in the statute are broad enough to include making a connection with a subscriber for telephone service.
Our special statutes have not abrogated the contract liability of a telephone company but they have introduced a liability in tort as well. Even so, the duty of a telephone company is ordinarily limited to making a connection between phones without unreasonable delay. It is not under obligation to render special services or transmit messages except in cases where it has undertaken so to do. Its duties and obligations will depend upon the facts and circumstances in each case.
The extent of the undertaking by the defendant, whether the communication by the unnamed person was sufficient to inform the operator that the caller wanted to be connected with the fire department, whether there was unreasonable delay in making the connection, or whether the caller hung up before the connection was completed, the extent of the unreasonable delay and whether it was a proximate cause, if proven, of the damages of the plaintiffs, and the extent of the damages attributable to any unreasonable delay proven, are all questions of fact that cannot be determined from the pleadings. Some of the links in the chain of events may become involved in doubt and speculation.
We are here called upon to determine the sufficiency of a complaint which has been challenged by demurrer. Every reasonable intendment and presumption is to be made in favor of the complaint and the plaintiffs are entitled to all reasonable inferences which can be drawn from the facts pleaded. The difficulty the plaintiffs may have in proving all of the necessary elements to enable them to recover upon the trial cannot be here considered. The complaint does state a cause of action and the demurrers should have been overruled.
By the Court. — Order reversed and cause remanded with directions to overrule the demurrers.
GEHL, J., took no part.