Whitehead v. Carolina Telephone & Telegraph Co.
Whitehead v. Carolina Telephone & Telegraph Co.
Opinion of the Court
Tbe action, it will be noted, is laid in tort and negligence is tbe imputed wrongful act. It is contended by tbe defendant tbat several of tbe plaintiff’s allegations, especially those relating to tbe proximate cause of tbe loss, are inferences or conclusions not deducible from tbe substantive facts and not admitted by tbe demurrer. It is also insisted tbat tbe circumstances alleged were not such as to have admonished tbe defendant tbat its omission would probably result in injury to tbe plaintiff, and moreover tbat tbe essential proximate connection between tbe alleged negligence and tbe alleged loss is not susceptible of satisfactory proof.
Wben its sufficiency is challenged by demurrer a complaint will be sustained if its allegations constitute a cause of action, or if facts sufficient for this purpose are logically inferable therefrom under a liberal construction of its terms. But a demurrer, wbicb raises an issue of law, is construed as admitting only relevant facts well pleaded and
In Bank v. Bank, 183 N. C., 463, it was alleged that the plaintiff had suffered loss through the defendant’s negligent failure in issuing checks to use safety paper and certain protective devices and that the defendant’s negligence was the proximate cause of the loss. In the. opinion of the Court Mr. Justice Hotee said that the general averments of negligence and proximate cause imputing liability to the defendant were not sufficient to sustain the action upon a demurrer to the complaint. And in Chancey v. R. R., 174 N. C., 351, the plaintiff alleged that the defendant had overcrowded the car for which he had purchased a ticket and had failed to light it properly and that by reason of the defendant’s negligence he had been assaulted and robbed. A demurrer was sustained. Holding that the imputed act of negligence must be the causa causans of the injury or loss, Mr.- Justice Walteer said: “The assault is not described with any particularity, so that we can understand how it came about, and seems to be only the pleader’s conclusion as to its character, and not a statement of the facts so as to afford us an opportunity to form an opinion as to what caused it.” It is an elementary rule of pleading that a demurrer does not admit the pleader’s conclusions or inferences and the Court may not be denied the right to judge for itself whether the plaintiff’s allegations are sufficient to warrant a submission to the jury of the question of proximate cause. Accident Co. v. Bates, 74 Ill., App. Court, 335; Greeff v. Assurance Society, 73 A. S. R. (N. Y.), 659; Dubois v. Hutchison, 40 Mich., 262. The bare statement, then, that the defendant’s negligence was the proximate cause of the plaintiff’s loss, unsupported by allegations of sufficient particularity to enable us to discover a causal relation between the negligent act and the loss is not sufficient. It is therefore essential that we ascertain from the complaint whether such causal relation is proximate or too remote to support the action.
In Penn v. Telegraph Co., 159 N. C., 306, it is said that the rule in actions ex delicto is that the damages to be recovered must be the natural and proximate consequence of the act complained of; and in several cases it has been held that the proximate cause of an event is the efficient cause, that which is natural or continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the
These questions are considered in Lebanon Telephone Co. v. Lumber Co., 131 Ky., 718, 18 Ann. Cas., 1066. There, as here, a demurrer was filed. The facts are almost identical with those in the case at bar. Mr. Justice Lassing wrote the opinion from which we quote: “An analysis of the petition shows that it charges that, if a connection had been promptly established between the watchman and the fire department, the man in charge there would have promptly answered his call, and would have promptly sounded the alarm by ringing the fire bell; that the members of the fire department would have heard the fire bell, when rung, and would have promptly answered the call, and would have reached the fire at least thirty minutes sooner than they did, and before it had spread from the boiler house to the main buildings; that after
Tbe Court concluded that tbe facts upon which a recovery was sought were entirely too speculative and remote and tbe petition was dismissed.
Discussing a similar question in Volquardsen v. Telephone Co., 126 N. W. (Ia.), 928, Mr. Justice Ladd used this language: “Suppose tbe connection at tbe central office bad been made promptly, would tbe fireman in charge of tbe fire station bave responded promptly and promptly bave rung tbe fire bell? "Would tbe members of tbe department bave beard and promptly bave repaired to tbe scene? Was tbe apparatus for extinguishing tbe fire in working order and tbe water supply accessible and sufficient? Would all of these intervening agencies bave operated harmoniously and efficiently and with such promptness as to bave put out tbe flames in time to bave avoided a total loss ? Manifestly these are matters of speculation, and yet all this must be assumed if tbe loss is to be traced to defendant’s negligence. Each of these independent agencies necessarily must be linked together in a line of causation in order to connect it with tbe loss. None of them were under tbe direction or control of tbe telephone company. Moreover, bow far tbe
Tbe complaint proceeds upon tbe supposition that all tbe agencies intervening between tbe negligent act and tbe destruction of tbe plaintiff’s building would necessarily bave worked out with perfect efficiency. This of course is an assumption, or inference, or conclusion which, under tbe authorities we bave cited, tbe demurrer does not admit.
In support of bis contention tbe plaintiff cites Hodges v. R. R., 179 N. C., 566, in which tbe demurrer was overruled. A careful perusal of tbe complaint and of tbe opinion will disclose material differences between that case and this. There it appeared that tbe telephone line extended from Tuckerdale to tbe offices of two physicians whose services bad previously been engaged and who were expected when called to go to tbe plaintiff’s bouse to administer to bis wife at tbe birth of a child; that tbe plaintiff bad made repeated attempts to get in communication with tbe physicians and bad failed because tbe defendant in breach of a statute bad wilfully cut tbe wire; and that tbe physicians would bave responded bad they been called. There was an allegation in tbe complaint that if tbe wire bad not been cut tbe physicians. could bave arrived in time to bave saved tbe patient’s life. Tbe defendant demurred on tbe ground that tbe damages were remote and that tbe defendant’s negligence was not tbe proximate cause of tbe death.
That case and this may be differentiated. There, it may be assumed, tbe defendant bad in mind tbe probable result of its wilful act. Also, a definite contract bad been made with tbe physicians; and plaintiff’s allegation that if tbe wire bad not been cut tbe patient’s life might bave been saved was treated in tbe opinion as broad enough to admit proof that as a matter of science or human experience tbe physician could bave administered remedies which, in all reasonable probability, would bave prevented death. None of these elements appears in the-case before us.
Tbe judgment is
Affirmed.
Reference
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- J. W. WHITEHEAD v. CAROLINA TELEPHONE AND TELEGRAPH COMPANY
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