DocketNumber: No. 4-8376
Citation Numbers: 207 S.W.2d 733, 212 Ark. 763
Judges: McHANEY, Justice.
Filed Date: 1/26/1948
Status: Precedential
Modified Date: 1/12/2023
Appellee, a resident of Benton, Arkansas, sued appellant to recover damages caused by a fire originating in the bathroom of his home in said city which quickly spread to other rooms. It is not alleged that appellant caused the fire, but that the operator was negligent in not answering promptly a call to notify the Fire Department made first by his wife and then by himself, which caused a delay of four or five minutes in reaching the Fire Department. He also alleged negligence of appellant in permitting its telephone system to become so obsolete, crowded and inadequate that it did not render prompt and efficient service. *Page 764
Appellant demurred to the complaint which was overruled, and it answered with a general denial. Trial to a jury resulted in a verdict and judgment against appellant for $1,500. This appeal followed.
The proof shows that appellee had a contract with appellant for telephone service in his residence at the rate of $1.75 per month. The telephone system in Benton is known as the magneto type, one where the subscriber has to crank his phone in order to contact central, and the hook that holds the receiver must be held down when ringing central.
Assuming that the evidence sufficiently established the allegations of the complaint, still we are of the opinion that there can be no recovery in this case and that the court should have directed a verdict for appellant at its request.
We have held in two cases that: "A telephone company is not liable for special damages for failure to furnish connection to a patron if it had no notice of the circumstances out of which the damages might arise." Southern Telephone Co. v. King,
It is not claimed by appellee that he ever notified appellant that if it did not answer his calls for the Fire Department promptly, he would hold it liable for the resultant loss, and it is not reasonable to presume that appellant would have contracted to furnish him service at the small rate charged, if it should assume liability for damages caused by a fire for which it was in no wise responsible in its inception.
The case of Foss v. Pacific Tel. Tel. Co.,
Appellee cites and relies on 2073(b) of Pope's Digest for an affirmance of the judgment. This section, provides as follows: "Every public utility shall furnish, provide and maintain such adequate and efficient service, instrumentalities, equipment and facilities as shall promote the safety, health, comfort, requirements and convenience of its patrons, employees and the public."
This section is 10(b) of Act 324 of 1935, which Act is entitled "An Act Providing for the Better Regulation of Certain Public Utilities in the State of Arkansas and for Other Purposes." It is a lengthy Act with 71 sections and many sub-sections. It created the "Department of Public Utilities" of the Arkansas Corporation Commission, and gave it broad powers. Section 2071 *Page 766 gives the Utilities Department the exclusive power to regulate utilities and enforce the provisions of said Act and 2079 and 2080 provide for its investigation and correction of all violations of the Act, including the failure to render adequate service. Sections 2121 through 2125 provide the penalties which may be inflicted for all violations of said Act, and there is no provision therein making any utility liable in special damages to a customer for failure to render adequate service. The section relied on is simply declaratory of the then existing law relative to public utilities and added nothing to their duty to furnish adequate service.
We are, therefore, of the opinion that appellee's action for special damages cannot be maintained under said section of the statute, and that the court erred in refusing to direct a verdict for appellant. The judgment is reversed and the cause is dismissed.
ED. F. McFADDIN, Justice (concurring). I concur in the result reached by the majority, but I cannot agree with some of the expressions in the opinion. The rule announced in Hadley v. Baxendale has no application to this present case, because — by all the pleadings and evidence — this is an action in tort for negligence. Hadley v. Baxendale enunciated a rule that governs in actions for breach of contract. That rule has no bearing on or application in an action ex delicto, as is the present case. In 15 Am. Juris. 471 the distinction between damages in tort actions and damages in contract actions is clearly stated.
In tort actions, the negligent person is liable for all damages that flow as the direct and proximate result of the negligence, but is not liable for remote or speculative damages. Tested by that rule, the plaintiff cannot recover in the case at bar. The negligence of that telephone company was the failure to answer the signal from the plaintiff's telephone; but it requires considerable speculation to say that the plaintiff's damage *Page 767 would have been lessened if the telephone signal had been answered promptly. The plaintiff's case is built on a series of conjectures, to-wit:
(1) if the telephone company had answered the signal promptly; and
(2) if the fire department had answered its phone promptly; and
(3) if the fire truck had reached the fire promptly; and
(4) if the water power had been satisfactory; and
(5) if the firemen had functioned efficiently:
then, on these five "ifs", the plaintiff's damages would have been lessened from a fire already in progress when the plaintiff first attempted to call the telephone office. These five "ifs" demonstrate that the plaintiff's damages were speculative and remote, rather than direct and proximate; and it is entirely for this reason that I concur with the result reached by the majority. That the telephone service in Benton was extremely poor is shown by the proof. But the poor service is a matter for the Arkansas Public Service Commission.