Vinson v. Southern Bell Tel. & Tel. Co. , 188 Ala. 292 ( 1914 )

McCLELLAN, J.

During the afternoon of July 17, 1911, the plaintiff’s (appellant’s) 17 year old son was injured about the head by a fall from a bicycle. Dr. Baird, plaintiff’s family physician, attended the boy about 4 o’clock in the afternoon, diagnosing his condition to be the result of concussion, of the brain. Both Dr. Baird and plaintiff were regular subscribers, Avhose obligation Avas to pay monthly, for residence telephones Avith the defendant company. They had been so for many months, if not longer. The service afforded such subscribers in and about Cullman,. Ala., included the maintenance, day and night, of the usual central office in the town, Avhereby, in response to the mechanically produced fall of a “drop” on the central office SAvitchboa'rd, the attention of the operator would be called and given the calling phone, and connection thereof with the other phone desired would be effected. If the operator left the SAvitchboard for sleep or refreshment the practice was to so ordér the switchboard mechanism as to cause the setting off of a bell or gong Avhen the “drop” fell. This arrangement would ordinarily serve the purpose of a persistent and loud alarm.

The successful operation of these processes depend, of course, upon the working condition of the mechanism and Avire connection provided, as Avell as upon appropriate manipulation or action by the person desiring to call another person, by the operative, and by the person intended to be communicated with.

The counts under which the evidence was taken were 2, 3, and 4 as amended. The first two declare as for a breach of duty and are in tort; and the last (4) is for the breach of the contract. The pleas, surviving demurrer, were the general issue numbered 1, and that numbered 4, Avhich, though not addressed to the counts separately, asserted the breach by plaintiff of his contract for the service of a phone in his residence by nonpayment by a stipulated date of the rental sum. Plea 2, setting up a failure to present the claim within a particular period was stricken on demurrer. In addition to a general traverse of this plea 4, the plaintiff replied that the custom Avas, and had long been, to allow payment of the rental by a subscriber by a reasonable time after presentation of an account therefor, and that plaintiff paid, and the company accepted Avithont question, the rental sum for the month averred in plea 4 to have been the occasion of the breach alleged. The special rejoinder to special replication 2 Avas stricken in response to plaintiffs demurrer. The issues made were those raised by averments of the counts mentioned above, of the plea 4, and of special replication 2.

The court gave the general affirmative charge, on the whole case, for the defendant (appellee.) The scope of the review here, on the plaintiff’s appeal, will appear from the opinion.

The report of the appeal will contain counts 2 and 3 and amended count 4.

After careful review of the entire evidence, the opinion prevails that the court erred in giving the general affirmative charge requested by the defendant. There was evidence, or inferences fairly deducible from evidence, that required the jury’s solution of every material issue raised by counts 2, 3, and 4 as amended. Manifestly the affirmative charge ivas not defendant’s due on the theory that the issues made by plea 4, the general replication thereto, and the special replication thereto, were incontrovertibly established in the evidence.

It is the duty of telephone companies maintaining lines and exchanges for the purpose of affording patrons the means of telephonic communications to exercise in that public service a character and degree of care and diligence and skill commensurate with their undertaking. All reasonable and proper means and agencies within their control should be employed to secure effective, prompt, and accurate service. The duty exacted comprehends reasonable and proper care, skill, and effort to afford for the service undertaken suitable appliances, instruments, and apparatus, and competent and skilled servants, agents, and operators. And if the appliances, instruments, or apparatus are defective, or if the operatives are incompetent or unskilled, or if there is other negligence in respect of the service undertaken, liability attaches for the loss or damage proxmately resulting therefrom to one entitled to proper, prompt, and efficient servive. Such companies are not insurers; and where the service undertaken is interfered with, or rendered ineffectual by, uncontrollable causes — causes not traceable or ascribable to negligence or intentional misconduct in respect of the duty assumed — such companies are not liable for a tortious breach of duty. — 2 Joyce on Elec. Law, § 733.

Where a telephone company installs an instrument through which it undertakes, for a consideration, to afford continuous telephone service, or service during def-nite parts of the day or night, or service upon application therefor through public stations, and persons authorized to avail of the service pursue the usual method to effect the use of the telephonic system SO' tendered by the company,' and the telephone service so undertaken to be afforded is not given, or is insufficiently or ineffectually afforded, the presumption prima facie is that negligence of the company,' or of its servants or employees, is the cause of the failure of the telephone service, or of its inefficiency; and the obligation to rebut the prima facie presumption thereupon passes to the telephone company; which presumption may be rebutted by proof that the cause was of an uncontrollable nature or was unavoidable by the exercise of due care, skill, and diligence, or was the result of acts for which the company was not responsible, either directly or in consequence of its negligent omission to employ due care and skill and diligence to discover the effect of such acts and to remove or repair after becoming aware thereof.

The application of the doctrine to the evidence adduced required the submission of the issues to the jury’s determination. The contract between plaintiff and this company for continuous telephone service covering the time in question was shoAvn. There was evidence tending, at least, to show: Repeated efforts to' reach the central office by the usual method for that purpose, through the operation of the instrument in plaintiff’s dwelling; that these efforts covered a period from about 10 o’clock to near 11 o’clock, in the evening; that no response was had thereto from the centrol office; that the mechanism in the central office constructed to direct the operator’s attention to the call did not make the call, or, if it did so, that the operator took no account thereof, paid no heed as she should have done, thereto; that uncontrollable causes that might have operated to prevent the normal effectiveness of the telephonic mechanism from plaintiff’s dwelling to and in the central office did not intervene on this occasion; that a representative of the company in the central office was advised, earlier in the evening of July 17, 1911, of the probable desire or necessity for telephonic communication from plaintiff’s dwelling to Dr. Baird, another sub-sci'iber and the family physician, in reference to plaintiff’s son’s condition, which was serious; that the occasion for such communication arose; that, the physician would have responded; that, in consequence of the failure of the telephone service engaged to be afforded plaintiff, there was delay in bringing the physician to the bedside of the son; that, in further consequence, the father, being greatly alarmed at the obviously serious symptoms manifested by the stricken son, went afoot to bring the physician; that the distance from his home to the physician’s home was approximately a mile and a half; that he traveled rapidly; that Avhen he arrived at the home of the physician, he was “exhausted”; that he and the physician returned afoot to the bedside of the son; and that Avhen they had reached a point near the plaintiff’s home they were advised that the son was dead.

If the failure of the service Avas found by the jury to have resulted from negligence on the part of the company, or of its employees, and if the contract for telephone service was not breached, as averred in plea 4, the plaintiff was at least entitled to recover nominal damages for the breach of contract, or for breach of the duty arising out of the' contract, for telephonic service, but also such actual damages as he suffered in consequence thereof.

It cannot be affirmed, as a matter of law, that the physical effort expended by plaintiff to secure the physician —an effort that proper telephonic service and communication would have rendered unnecessary — was only a mental disturbance or discomfiture. “Injury to the person” is, we doubt not, synonymous with bodily hurt, bodily harm. Great physical effort may be immediately productive of that character of hurt or harm. If such effort produces physical exhaustion, it is open, at least, to be concluded that bodily harm or hurt has, though not visibly manifested in impaired physique, resulted. Such a draft upon vital organs may produce direct effects hurtful, harmful to the physical man, to the person. It has never been supposed that only permanent injuries were injuries to the person; nor that only visible injuries or injuries susceptible of being discovered or known through any of the five senses of another observing the person alleged to have suffered injury were injuries to the person. The absence of some sort of physical manifestation of injury to the person is, of course, evidence of the absence of such injury; and, in cases where the injury claimed is of the obvious, one way or the other, such evidence is of course conclusive. It was a jury question on the evidence here whether the physical effort expended by plaintiff resulted in injury to his person; and, if so, mental distress suffered in consequence of the delay in communicating with the physician and in consequence of the physician’s absence after he could, and probably would, have arrived at the bedside before the death of plaintiff’s son was, if shown, an element for which damages might be awarded, the relationship between plaintiff and person to be attended by the physician being such as to allow the jury to draw the inference of mental distress on that account (W. U. Telegraph Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148); provided the testimony tending to show notice to the company’s agent or servant of the likelihood that a call for the physician that night Avould be made over the telephone was credited by the jury.

Any evidence, such as satisfactory use and serviceableness of the mechanism and line of which plaintiff was entitled to be served, during the evening of the son’s death and during the next morning, should have been received as tending to show the condition of the mechanism and the line.

If the mechanism and line were in working condition shortly before and after the occasion in question, it was evidence, in connection Avith the other evidence, to go to the jury upon the issues of neglect by the operative in respect of attention to the service the company had engaged to afford.

Under the issues made by the pleadings, the plaintiff should have been alloAved to recite his vieAv of the full conversation Avith the company’s manager (Cassels) when he paid the rental for the month of July; but any statements then made by the manager could not be received for the purpose of showing the qualification of the operative in charge on the night in question.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.-

Anderson, O. J., and Sayre and de Graefenred, JJ., concur.