#### J. W. WHITEHEAD v. CAROLINA TELEPHONE AND TELEGRAPH COMPANY.

(Filed 7 October, 1925.)

Pleadings — Allegations—Demurrer—Negligence—Torts.

Remote inferences will not be drawn from tbe allegations in tbe complaint wben necessary to sustain tbe cause of action; and, Held, in an action of tort to recover damages of a telephone company allegations tbat tbe failure of tbe telephone operator to make a connection with tbe city fire department caused damages by fire to plaintiff’s bouse, resulting in a delay of tbe department to reach tbe fire in time to extinguish-it, are alone insufficient and a demurrer thereto is properly sustained.

Appeal by plaintiff from an order of Devin, J., 28 August, 1925, sustaining a demurrer to tbe complaint. From HarNett.

Tbe plaintiff alleged tbat tbe defendant owned and operated a telephone system in tbe town of Dunn and tbat be was a subscriber and patron, having in bis dwelling a telephone in good working order; tbat *198tbe defendant represented to tbe public tbat service could be bad at any time, day or nigbt; tbat tbe town bad a fire alarm and a well-equipped fire department witb apparatus and skilled firemen wbo were prompt in responding wben tbe alarm was sounded; tbat tbe plaintiff owned an 8-room bouse, situated near bis residence, on tbe roof of wbicb be discovered a small fire about three o’clock in tbe morning of 12 March, 1925; tbat be made diligent effort for 15 or 20 minutes to get a response from tbe central office of tbe defendant for tbe purpose of notifying tbe local fire department and giving tbe fire alarm, but was unable to get an answer to bis call or any communication witb tbe fire department; and tbat in consequence bis 8-room building was destroyed by fire. Witb respect to tbe want of due care tbe material allegations are these: (1) Through tbe negligence of tbe defendant tbe plaintiff was prevented from getting in communication witb tbe central office. (2) By reason of such negligence, as set forth in tbe complaint, tbe plaintiff suffered tbe entire loss of bis building. (3) Tbe fire company did not get to tbe bouse until thirty or forty minutes after tbe plaintiff bad discovered tbe fire and if tbe company bad arrived within twenty or twenty-five minutes tbe bouse would have been saved. (4) If tbe defendant bad promptly answered tbe plaintiff’s call tbe alarm would have been given and tbe fire department could have put out tbe fire; and tbat tbe defendant’s negligent failure to keep a competent person at tbe switchboard and to communicate witb tbe plaintiff was tbe proximate cause of tbe loss.

Godwin & Williams for plaintiff.

Don Gilliam, Clifford & Townsend for defendant.

Adam:s, J.

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 *199relevant inferences of fact readily deducible therefrom and not as admitting conclusions or inferences of law or matters of evidence or of facts controverting those of which the Court must take judicial notice. Price v. Price, 188 N. C., 640; Foy v. Foy, ibid., 518; Sexton v. Farrington, 185 N. C., 339; Sandlin v. Wilmington, ibid., 257; Bank v. Bank, 183 N. C., 463; Hartsfield v. Bryan, 177 N. C., 166; Crane Co. v. L. & T. Co., ibid., 346; Board of Health v. Comrs., 173 N. C., 250; Foy v. Stephens, 168 N. C., 438.

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 *200result would not have occurred. Goodlander Mill Co. v. Standard Oil Co., 63 Fed., 400; Ward v. R. R., 161 N. C., 179; Hardy v. Lumber Co., 160 N. C., 113. True, tbe primary cause may be tbe proximate cause of tbe injury though it operate through successive instruments or agencies, tbe question being whether there is an unbroken connection between the wrongful act and the injury complained of — a continuous operation. 1 Thompson on Negligence, 2 ed., sec. 52; R. R. v. Kellogg, 94 U. S., 469, 24 Law Ed., 256. The celebrated Squib case is a fair illustration of this doctrine. The defendant threw a lighted squib into the market house when it was crowded with those who bought and sold. The fiery missile came down on the shed of a vender of gingerbread who, to protect himself, caught it and threw it away. It then fell on the shed of another ginger-bread seller who passed it on in the same way till at last it burst in the plaintiff’s face and put out his eye. The plaintiff brought suit against the defendant who was held answerable on the ground that he was presumed to have contemplated all the consequences of his wrongful act. Scott v. Shepherd, 2 W. Blackstone, 892. Other illustrated cases are cited by Thompson in sec. 53. This, however, is not the present case. Here no active interposing causes were set in motion by the alleged negligent act of the defendant, the imputed negligence being the defendant’s failure to perform a legal duty. No doubt the failure to perform a legal duty may be the proximate cause of an injury; but the causal connection between the negligent act and the injury must in fact and in law be primary or proximate, and free from such contingencies as make it remote .and indeterminable. There must be a direct relation between the cause and the effect, between the wrong and the injury. ¥e are therefore confronted with the question whether the defendant might have foreseen that the plaintiff’s injury was remote and whether there were intervening contingencies which rendered the result of the negligent act entirely speculative and the proximate cause of the loss impossible of satisfactory proof.

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 *201Laving reached, tbe fire tbe fire department would bave put it out before it bad communicated to tbe main buildings, and tbe plaintiff would bave suffered comparatively no loss. Each of these five independent links must be forged into a chain in order to connect tbe negligence of tbe defendant’s operator with plaintiff’s loss. It must be presumed that tbe watchman in tbe engine bouse was awake and at bis post of duty ready to answer tbe call immediately upon receipt of tbe notice of tbe fire; that be would at once bave sounded tbe alarm by ringing tbe bell; that upon tbe ringing of tbe bell members of tbe fire department, whether paid or volunteers, would bave beard tbe alarm and promptly responded to tbe call, and would bave reached tbe scene of tbe fire before it bad spread to tbe main building. Tbe fire-fighting apparatus must bave been in' perfect working order, and tbe fire department must bave succeeded in confining tbe fire to tbe boiler room, and put it out before it bad spread to tbe other buildings. Now, when it is considered that each of these separate agencies is wholly independent of tbe other, and none of them under tbe direction or subject to tbe control of tbe defendants, it is readily seen that, in order to bold that tbe negligence complained of was tbe proximate cause of tbe injury or loss, a series of presumptions must be indulged in. ... We know that fire fighting, under tbe most favorable circumstances, and with tbe most approved appliances and modern machinery, is an uncertain and frequently disastrous business. No two fires are alike, and it is indulging in tbe purest speculation to try to figure what would bave been done Under other conditions and different circumstances.”

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 *202fire bad spread at tbe time tbe firemen would bave been likely to bave reached tbe scene bad tbe connection been promptly made is left by evidence a matter of speculation merely. And tben there are tbe weather conditions and tbe character of tbe material to be taken into account. After tbe experience of ages, fighting fire, even with modern machinery and apparatus, is precarious business, and uncertain in its results.” See, also, Southwestern Telephone Co. v. Solomon, 117 S. W. (Tex.), 214; Evans v. Telephone Co., 135 Ky., 66, 135 A. S. R., 444; Ins. Co. v. Tel. Co., 154 N. W. (Ia.), 874. Note 10 A. L. R., 1459.

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.