Advance Service, Inc. v. General Tel. Co. of Fla., 6386

• Decision Date: 17 June 1966
• Docket Number: No. 6386,6386
• Citation: 187 So.2d 660
• Parties: ADVANCE SERVICE, INC., a Florida corporation, Appellant, v. GENERAL TELEPHONE COMPANY OF FLORIDA, a Florida corporation, Appellee.
• Court: Florida District Court of Appeals

Page 660

187 So.2d 660

64 P.U.R.3d 541

ADVANCE SERVICE, INC., a Florida corporation, Appellant, v.GENERAL TELEPHONE COMPANY OF FLORIDA, a Florida corporation, Appellee.

No. 6386.

District Court of Appeal of Florida, Second District.

June 17, 1966.

Ralph Steinberg, Tampa, for appellant.

Hugh C. Macfarlane and Brooks P. Hoyt, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

Harold B. Wahl, of Loftin & Wahl, Jacksonville, and Walton, Lantaff, Schroeder, Atkins, Carson & Wahl, Miami, amici curiae.

ALLEN, Chief Judge.

The appellant was the plaintiff below and appealed from the summary final judgment entered in favor of the General Telephone Company of Florida, a Florida corporation, the defendant below.

A representative of the defendant corporation solicited advertising in the yellow pages of the telephone directory.Listed on the printed application for directory advertising were several different headings under which the plaintiff requested his advertisements.One of such listings was 'Air Conditioning Systems-Service.'Before the printing of the directory, the defendant changed this classification, under which the plaintiff requested to advertise, from 'Air Conditioning Systems-Service' to 'Air Conditioning Equipment-Service,' and then, in the new directory, inadvertently failed to list the plaintiff under a service heading, but instead listed it under 'Air Conditioning Systems-Installation.'However, several other listings were correctly included in the directory under the headings requested by plaintiff.The plaintiff contends the omission under the service heading was an erroneous listing, especially in light of its application requesting it and since its business was primarily service.Damages were sought for loss in business.

The reverse side of the application contained, inter alia, the following provision:

'3.Errors and Omissions.The Telephone Company's liability shall be limited to a pro rata abatement of the total amount payable hereunder, to the extent that an error or omission affects the entire advertisement or listing.'

The president of the plaintiff company was presented a copy of this application.He admitted he read the face of said application, which included on the front side a reference to the terms and conditions set forth on the reverse side.

When the error and omission was discovered by the plaintiff, the defendant credited the plaintiff with all charges that had been collected for the erroneous classification.

The court below granted a summary judgment in favor of the General Telephone Company of Florida, based on provision 3, hereinabove mentioned, and which we reiterate:

'3.Errors and Omissions.The Telephone Company's liability shall be limited to a pro rata abatement of the total amount payable hereunder, to the extent that an error or omission affects the entire advertisement or listing.'

It appears from the record that the defendant corporation had complied with the contract by crediting the account of the plaintiff with all amounts previously charged for this last mentioned listing and canceling all other charges with respect thereto.

In its summary judgment, the lower court stated:

'A provision similar to the one set forth in the contract and appearing in paragraph 3 above has been considered by Courts applying the law of this State and has been held to be valid.SeeNeering v. Southern Bell Telephone & Telegraph Co.(1958)169 F.Supp. 133;Horn v. Southern Bell Telephone & Telegraph Co.(1962)19 Fla.Supp. 142;Saleeba v. Southern Bell Telephone & Telegraph Co.(1960)15 Fla.Supp. 159;Original New York Meat Market of Miami Beach, Inc. v. Southern Bell Telephone & Telegraph Co.(1963)21 Fla.Supp. 151.A similar conclusion has been reached in a number of other jurisdictions.See92 A.L.R.2d 917, 935.

'Inasmuch as the plaintiff signed the application, received a copy thereof and at least read the face of the same, he is presumed to know the contents thereof.SeeSutton v. Crane ((Fla.App.) 1958)101 So.2d 823andNeering v. Southern Bell Telephone & Telegraph Co., supra.'

In Neering v. Southern Bell Telephone & Telegraph Co., 169 F.Supp. 133(S.D.Fla.1958), District Judge Simpson, in a case similar to this one, said:

'This Court in the case of Silverman v. Southern Bell Telephone and Telegraph Company, CaseNo. 1413--J Civil, speaking through the late Judge Strum, on May 26, 1948 considered this same provision of the defendant's application form and held that it was valid.See alsoHamilton Employment Service v. New York Telephone Company, 1930, 253 N.Y. 468, 171 N.E. 710, 711;Riaboff v. Pacific Telephone & Telegraph Co., 1940, 39 Cal.App.2d Supp. 775, 102 P.2d 465;52 Am.Jur. Sec. 95, page 125;Baird v. Chesapeake & Potomac Telephone Co., 1955, 208 Md. 245, 117 A.2d 873;Shealy's Inc. v. Southern Bell Tel. & Tel. Co., D.C., 126 F.Supp. 382;Superior Appliances, Inc. v. Southern Bell, United States District Court for the Southern District of Florida, at Miami, No. 4266--M Civil, order dated September 11, 1952.

'Although plaintiff admits that he signed this same contract form for thirteen years he claims he did not have an opportunity to read it.However, as stated by the Florida District Court of Appeal, Second District, in Sutton v. Crane, 1958, 101...