Louisville Bear Safety Service, Inc. v. South Central Bell Tel. Co.

• Decision Date: 15 September 1978
• Citation: 571 S.W.2d 438
• Parties: LOUISVILLE BEAR SAFETY SERVICE, INC., Appellant and Cross-Appellee, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellee and Cross-Appellant.
• Court: Kentucky Court of Appeals

Page 438

571 S.W.2d 438

LOUISVILLE BEAR SAFETY SERVICE, INC., Appellant and Cross-Appellee, v. SOUTH CENTRAL BELL TELEPHONE COMPANY, Appellee and Cross-Appellant.

Court of Appeals of Kentucky.

Sept. 15, 1978.

Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellant and cross-appellee.

James G. Apple, Stites, McElwain & Fowler, William S. Connolly, Gen. Atty., South Central Bell Tel. Co., Louisville, Rexford L. Hawkins, Gen. Atty., South Central Bell Tel. Co., Birmingham, Ala., for appellee and cross-appellant.

Before GANT, COOPER and PARK, JJ.

GANT, Judge.

Appellant, Louisville Bear Safety Service, Inc. (Bear Safety), brought suit for alleged breach of contract and negligence against appellee, South Central Bell Telephone Company (South Central Bell), for a mistake in Bear Safety's advertisement appearing in the Yellow Pages of the 1973 telephone directory. The advertisement consisted of a standard listing of name, address and phone number, all of which were correct followed by what is referred to as an "anchor line," which directs the reader to the display advertisement. Although Bear Safety's display ad appeared on Page 462, the anchor line stated that it was on Page 461, the same page as the listing itself.

The complaint asked for $26,440 in compensatory damages and $100,000 in punitive damages. The answer of South Central Bell admitted the mistake but denied any breach of contract or negligence. It further set forth defenses based on the terms of the contract and a disclaimer appearing in the Yellow Pages.

The contract provision: "The telephone company's liability on account of errors and/or omissions of such advertising shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue, and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred."

The disclaimer: "The telephone company assumes no responsibility or liability for errors or omissions occurring in the Yellow Pages. Errors or omissions will be corrected in a subsequent issue, if reported by letter to the company."

These two defenses were ordered stricken on motion of Bear Safety.

At trial, the court entered a directed verdict for South Central Bell on the issue of punitive damages and also apparently entered a directed verdict for Bear Safety on the issue of liability, submitting the case to the jury on the issue of compensatory damages only. The jury returned a verdict in the sum of $1,440, the cost of the ad.

Bear Safety first alleges that the trial court erred in refusing to instruct the jury on punitive damages. In Kentucky and most other jurisdictions, punitive damages are not recoverable in actions based on contract. General Accident Fire & Life Assurance Corp. v. Judd, Ky., 400 S.W.2d 685 (1966). Furthermore, punitive damages are not allowable for negligence unless the action is deliberate, intentional or wanton and malicious in nature. The evidence showed that the error was just that a typographical or proofreading error with no malice or intentional wrongdoing shown on the part of South Central Bell. Absent this showing, Bear Safety was not entitled to an instruction on punitive damages.

The next assignment of error is the refusal of the trial court to admit evidence of the number of other mistakes in the 1973 Yellow Pages and of the revenue received by South Central Bell from Yellow Pages advertising. We see no prejudice to Bear Safety resulting from the exclusion of this evidence and do not feel it is reversible error.

South Central Bell's assignment of error on cross-appeal is the failure of the trial court to instruct the jury that its liability must be limited by the terms of the contract to the...