F. N. Roberts Corp. v. Southern Bell Tel. & Tel. Co.

Decision Date04 October 1974
Docket NumberNo. 49428,No. 1,49428,1
Citation132 Ga.App. 800,209 S.E.2d 138
CourtGeorgia Court of Appeals

Jack K. Bohler, East Point, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, William W. Cowan, Robert W. Coleman, Atlanta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

'Let your fingers do the walking' is a commercial jingle urging use of the yellow pages of telephone directories. That such classified sections are regarded as valuable by business is shown in the instant case.

Southern Bell sought judgment for $10,606.33 as being owed by F. N. Roberts Corp. on written contracts for advertising which defendant had placed in various telephone directories over a three-year period in the Atlanta area for defendant's business operated as 'F. N. Roberts Pest Control Company.' In answering the complaint defendant admitted making the contracts but affirmatively asserted plaintiff had failed to place the advertisements in alphabetical order pursuant to the terms of their contract. Defendant also counterclaimed for $100,000, averring that because defendant's president had conducted a twenty-year campaign against the telephone company's advertising practices plaintiff had retaliated by cutting off defendant's telephone service on occasions and by deliberately misplacing a York Pest Control advertisement. By placing the York ad at the bottom right-hand corner of a right-hand page, defendant asserted, plaintiff intentionally created the injurious impression that the 'Pest Control' classification had ended with the York Pest Control ad, when, in fact, defendant's advertisement appeared on the following left-hand page.

Southern Bell's evidence established that its advertising contract required it to alphabetize advertisements under a specific letter which had been done by it here. Its practice was to place such ads alphabetically according to size. Thus, all quarter page entries were grouped together and ahead of smaller ads. Where a corporation contained the name of an individual such as Fred A. York, Inc. or F. N. Roberts Corporation, the concern had the option of contracting for placement under the first letter of the surname of the individual, as York or Roberts, or under the first word or initial in the corporate name, such as Fred or F. The telephone company proved its placement of defendant's advertisement and those for Fred A. York, Inc. was consistent with its policy and its contracts. The plaintiff also produced evidence in contradiction to defendant's recoupment and counterclaim. As a verdict was returned for the full amount plaintiff sued for, it appears the telephone company's version was accepted by the jury in preference to defendant's contentions.

A new trial motion followed which after amendment was denied. This appeal is from that judgment and requires of us to review the various assignments of error.

1. The trial court did not err in admitting the 1971 advertising order of Fred A. York, Inc. into evidence. The document was identified by a witness who testified that it was prepared as a record in the regular course of business and was maintained under the witness' personal supervision and control. The mere fact that the document was not signed by an agent or representative of Fred A. York, Inc. does not affect its admissibility. Code Ann. § 38-711; Eiberger v. Martel Electronic, 125 Ga.App. 253(1), 187 S.E.2d 327.

2. Defendant contends the trial court erred in refusing to permit the defendant to introduce certain evidence tending to show the telephone company's motivation or intent in deliberately misplacing defendant's advertisement and in interrupting defendant's telephone service as alleged in defendant's counterclaim. Assuming, arguendo, that the trial court erred in excluding this evidence, the error was rendered harmless by the jury's verdict in favor of the plaintiff. Evidence regarding intention in the performance of an act relates to the question of additional damages, not liability. See Code § 105-2002. Errors in the exclusion of evidence that pertain only to matters of damages are harmless where the jury determines that the complainant is not entitled to recover. Robinson v. Murray, 198 Ga. 690(2), 32 S.E.2d 496; Parsons v. Foshee, 80 Ga.App. 127, 132(4), 55 S.E.2d 386.

3. Another evidentiary assignment argues the trial court erred in refusing to admit a petition of the Greater Atlanta Pest Control Association. This petition had urged Southern Bell to modify its previous practices with respect to the industry's dual classification under 'Pest Control' and 'Termite Control' so as to have only one classification, thereby reducing the expense to the advertisers. The signature of the defendant's president appeared on the Association's petition. Since the defendant's president testified extensively concerning his adversary attacks upon the utility's advertising policies, any error in excluding documentary evidence concerning these activities must be ruled harmless. Murray v. Hawkins, 144 Ga. 613, 614(7), 87 S.E. 1068; Mitchell v. Gay, 111 Ga.App. 867(6), 143 S.E.2d 568.

4. Defendant contends the trial court erred in sustaining plaintiff's motion to strike defendant's claim for punitive damages. '(A)ll relief sought by the appellant was denied. Since no general, special or nominal damages were awarded, and the only error enumerated is on the failure to allow the question of punitive damages to be decided by a jury, the failure to award any damages . . . prevent(s) any additional damages as a claim for punitive damages will not lie when no other damages are recovered.' Haugabrook v. Taylor, 225 Ga. 317, 318, 168 S.E.2d 162, 163. Accordingly, any possible error in the elimination of punitive damages was harmless. See also ...

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13 cases
  • Ryle v. Sliz
    • United States
    • Georgia Court of Appeals
    • July 8, 1982
    ...in favor of the defendant." (Emphasis supplied) (See fn. 2, with 22 supporting citations); accord: F. N. Roberts Corp. v. Southern Bell, etc., Co., 132 Ga.App. 800, 802, 209 S.E.2d 138; Reliford v. Central of Ga. Rd. Co., 140 Ga.App. 782(4), 232 S.E.2d 129; Minter v. Powell, 152 Ga.App. 449......
  • Loring v. Bellsouth Advertising & Pub. Corp., 70673
    • United States
    • Georgia Court of Appeals
    • December 5, 1985
    ...sections are regarded as valuable by business is shown in the instant case." (Emphasis supplied.) F.N. Roberts Corp. v. Southern Bell Tel. etc. Co., 132 Ga.App. 800, 209 S.E.2d 138 (1974). See also Discount Fabric House v. Wis. Tel. Co., 117 Wis.2d 587, 345 N.W.2d 417 (1984), where it was p......
  • Marshall v. Fulton Nat. Bank
    • United States
    • Georgia Court of Appeals
    • January 25, 1980
    ...176; Reliford v. Central of Georgia Railroad Company, 140 Ga.App. 782, 783-784(4), 232 S.E.2d 129; F. N. Roberts Corp. v. Sou. Bell Tel. & Tel. Co., 132 Ga.App. 800, 802(2), 209 S.E.2d 138. However, based on the error found in Division 4, a new trial will be necessary. As to the imposition ......
  • Hines v. Good Housekeeping Shop, 62523
    • United States
    • Georgia Court of Appeals
    • January 7, 1982
    ...that they were kept "[i]n the normal course of business under my direction." See generally F. N. Roberts Corp. v. Southern Bell Tel. &c. Co., 132 Ga.App. 800, 801(1), 209 S.E.2d 138 (1974). " 'It is not necessary that a witness identifying business records under Code Ann. § 38-711 have pers......
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