I respectfully dissent. I cannot agree that a telephone company is not in any circumstances answerable in damages to one of its subscribers who is injured by negligent failure of the company to furnish proper service.
We do not have here a breach of an undertaking entered into between parties occupying equal contractual positions. Public authority has granted to this company what amounts to a monopoly in telephone service in the area wherein it operates. Anyone therein who desires telephone facilities must obtain same from this company on its terms or do without service. Implicit in the situation thus created in the duty of the company to exercise at least reasonable care and diligence in furnishing proper service and also an obligation on its part to answer in damages to one of its subscribers who *Page 768 suffers loss or injury flowing proximately from breach of the company's duty.
Nor can it be said that the telephone company has no notice of damages such as the jury below found appellee incurred. The availability of the telephone for use in summoning aid in any sudden emergency — to call a physician in case of dangerous illness or injury, to call peace officers for protection against felonious intruders, and, as in the case at bar, to summon the fire department to put out a fire — is one of the great inducements for subscribing for telephone service. The company well knows that its telephones are commonly used for such purposes, and the result of failure of the subscriber, on account of lack of proper telephone service, to obtain the necessary aid, is equally well known.