Morgan v. South Cent. Bell Telephone Co.
| Decision Date | 22 February 1985 |
| Citation | 466 So.2d 107 |
| Court | Alabama Supreme Court |
| Parties | Robert E. MORGAN, individually, Edwin M. Speed, individually, and Robert E. Morgan & Edwin M. Speed, P.A., a professional association v. SOUTH CENTRAL BELL TELEPHONE COMPANY, a corporation. 82-1273. |
Leo E. Costello, Costello & Stott, Birmingham, for appellants.
Robert W. O'Neill, Anita Leslie Cochrane, Lawrence B. Clark, Atley A. Kitchings, Jr., and Fred J. McCallum of Lange, Simpson, Robinson & Somerville, Birmingham, for appellee South Central Bell Telephone Co.
John D. Clements and Michael L. Lucas, of Thomas, Taliaferro, Forman, Burr & Murray, Birmingham, for appellee L.M. Berry & Co.
This is an appeal from a judgment notwithstanding the verdict. Plaintiffs Robert E. Morgan (Morgan), Edwin M. Speed (Speed), and their professional association (the "Association") sued South Central Bell (Bell) and L.M. Berry & Company (Berry) to recover damages they claim were incurred as a result of the omission of Morgan's name from the Yellow Pages of the 1978 and 1979 Birmingham telephone directories and the 1980 Bessemer directory. After a jury verdict in the amount of $57,000 in favor of plaintiffs, the trial court granted defendants' motion for judgment non obstante veredicto, and awarded the plaintiffs nominal damages of $25. Before addressing the issues, we will review the facts from which this dispute evolved.
Speed and Morgan are periodontists, dentists who are trained to treat gum disease. Drs. Speed and Morgan both taught at the University of Alabama Dental School until their retirement, when they decided to form a professional association for private practice.
Speed and Morgan divided the responsibilities for setting up their office. Speed arranged for telephone service. He spoke with a person at Bell on several different occasions to find out how both he and Morgan could be placed in the Yellow Pages with a telephone number and address for an office not yet completed. He found out that, in order to obtain a listing for them in the Yellow Pages, they would have to have a telephone installed on a pole outside the uncompleted office building. The order for service was then placed by Speed.
Speed contends that he stressed to Bell, when he requested service, the importance to the association of having both his and Morgan's name placed in the Yellow Pages for advertisement. At the time Morgan and Speed opened their offices, the only permanent form of advertising permitted by the State Board of Dental Examiners was a listing in the Yellow Pages.
In August of 1978, when the 1978 Birmingham telephone directory was delivered, Morgan and Speed discovered that Speed's name was listed properly in both the Yellow and White Pages, and that Morgan's name was listed in the White Pages, but not in the Yellow Pages.
Morgan telephoned Bell, received apologies for the omission, but was told that nothing could be done for him. He was told to contact Bell at a later time for corrections. During the conversation, it was confirmed that Bell had the correct information for the desired listing of both Speed and Morgan.
Several months later, because of errors in the Yellow Pages resulting from conversion to the use of computers, a supplementary directory for 1978 was distributed by South Central Bell. Morgan's name did not appear in that directory either. It was Bell's position at trial that the supplementary directory was issued for the purpose of correcting the errors in the earlier 1978 directory and not for the purpose of making any additions or deletions as a result of information obtained after the publication After the supplementary directory was issued, Morgan again telephoned Bell and again received apologies, plus another confirmation that Bell had had the correct information all along. At that time, however, Morgan was told there might be a problem with Berry, a company under contract with Bell to sell advertisements for the Yellow Pages. Morgan then called Berry and was told that work had not yet begun on the 1979 directory. He was told to contact Berry after the new year.
of the first Yellow Pages directory. However, the plaintiffs contend Bell had made a mistake in their 1978 listings and that the mistake should have been corrected by the supplement.
After the first of the year (1979), Morgan contacted Berry and explained his problem again. In that conversation with Berry, Morgan asked if there was anything further he needed to do in order to get his name in the Yellow Pages. Berry told him there was nothing further for him to do.
Several weeks later, Morgan received a telephone call from Berry inquiring if any further changes were desired in the Yellow Pages listing. Morgan's secretary relayed the message to him, and Morgan replied, through his secretary, there were no further changes. He claims he assumed, because of his prior conversation with Berry, that they had the correct information.
When the 1979 directory was delivered, Morgan and Speed discovered Morgan's name had once again been left out of the Yellow Pages. Morgan immediately telephoned Bell and confirmed again that Bell had the correct information and Bell could offer no explanation for the commission. Bell said once again it could be the fault of Berry.
Morgan then went to Berry's office, where he was told Berry had no record regarding the matter.
On 27 December 1979, the complaint in this case was filed by Speed and Morgan.
After this law suit was filed, a Berry sales representative came to the office of Speed and Morgan and prepared a contract for the purpose of listing them both in the 1980 Yellow Pages. Both Speed's name and Morgan's name were then correctly included in the 1980 Birmingham Yellow Pages.
Meanwhile, however, Morgan and Speed had opened an office in Bessemer. Chris Allen, a representative of Bell, came by the Centerpoint office to talk with Morgan about the Association's Bessemer needs. Allen assured Morgan at the conclusion of their talk, after having been informed of the pending lawsuit, that Morgan's name would appear in the Bessemer Yellow Pages. When the Bessemer directory was published, Morgan's name was, for the fourth time, correctly listed in the White Pages, but omitted from the Yellow Pages.
It was undisputed at trial that, under South Central Bell policy, the only way Morgan's name could get into the Yellow Pages is by way of a contract with Berry. As explained by Lucy Brasher, a manager with South Central Bell, when a subscriber orders telephone service, he is entitled to a free listing in both the Yellow and White Pages. Any further listing in either the White or Yellow Pages is referred to as an "additional listing." To obtain an additional listing in the White Pages, the subscriber deals with South Central Bell. That is why Morgan's name consistently appeared in the White Pages. To obtain an additional listing in the Yellow Pages, a subscriber must deal with Berry, which, pursuant to its contract with Bell, solicits listings in the Yellow Pages, and sends orders for additional listings to Bell. Plaintiffs contend they were never, until trial, made aware of this arrangement by agents of Bell or Berry.
To summarize the above facts, Dr. Speed's name was at all times listed in the Yellow and White Pages of the telephone directory just as he wished. Dr. Morgan's name was at all times listed in the White Pages, but was omitted from the 1978 Birmingham
Yellow Pages, the 1978 supplementary Yellow Pages, the 1979 Birmingham Yellow Pages, and the 1980 Bessemer Yellow Pages.
Before addressing the issues presented on appeal, it is crucial to the reader's understanding of those issues to examine the plaintiffs' complaint and several trial court rulings which set the stage for this appeal.
Concerning the 1978 and 1979 Birmingham directories, the plaintiffs alleged fraud, negligence, and breach of contract. Relative to the 1980 Bessemer directory, the plaintiffs alleged fraud against Berry and breach of contract against both Bell and Berry.
The trial court granted motions for a directed verdict filed by each of the defendants on the fraud and negligence counts as they related to the 1978 Birmingham telephone directory because those claims were barred by the one-year statute of limitations. The court also granted Berry's motion for directed verdict on the breach of contract count as it related to the 1978 directory and the fraud count as it related to the 1980 directory.
Even though the court had eliminated the negligence claim arising from the 1978 Birmingham directory, and despite the fact that there had never been a negligence claim, or a fraud claim in connection with the 1980 Bessemer telephone directory against Bell, the trial court instructed the jury to consider such charges in the form of a special interrogatory. Those special interrogatories which were submitted to the jury, and the jury's responses, are set forth below:
1. With respect to the claim asserted by Robert E. Morgan and Edwin M. Speed, P.A., a professional association, for damages resulting from breach of contract or negligence with respect to the publication of the 1978 Yellow Pages and the 1980 Bessemer Yellow Pages, is Bell liable?
Jury response: Yes, in the amount of $18,000.
2. With respect to the claim asserted by Robert E. Morgan for mental anguish and emotional disturbance resulting from breach of contract with respect to the publication of the 1978 Yellow Pages and the Bessemer 1980 Yellow Pages, is Bell liable?
Jury response: Yes, in the amount of $5,000.
3. With respect to the claim asserted by Robert E. Morgan and Edwin M. Speed, P.A., a professional association, for damages resulting from breach of contract, negligence, and fraud with respect to the publication of the 1979 Yellow Pages, is Bell liable? Is Berry liable?
Jury response: Both are liable, and in the amount of $24,000.
4. With...
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