Smith v. Southern Bell Tel. & Tel. Co.

• Citation: 364 S.W.2d 952,51 Tenn.App. 146
• Parties: Elizabeth SMITH, Plaintiff-in-Error, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Defendant-in-Error. 51 Tenn.App. 146, 364 S.W.2d 952
• Decision Date: 29 June 1962
• Court: Tennessee Court of Appeals

Page 952

364 S.W.2d 952

Elizabeth SMITH, Plaintiff-in-Error, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY,

Defendant-in-Error.

51 Tenn.App. 146, 364 S.W.2d 952

Court of Appeals of Tennessee, Western Section at Jackson.

June 29, 1962.

Certiorari Denied by Supreme Court Dec. 14, 1962.

[51 TENNAPP 147] James D. Causey, Memphis, for plaintiff in error.

Carroll C. Johnson, Memphis, Waring, Walker, Cox & Lewis, Memphis, of counsel, for defendant in error.

AVERY, Judge.

This is a suit by Elizabeth Smith, the original plaintiff, against the Southern Bell Telephone and Telegraph Company for damages, alleging in Count I breach of contract in connection with the listing of her florist shop in the City of Memphis, in its classified directory or 'yellow pages', and in Count II of the declaration alleging damages as the result of negligence in such advertisement. Each count alleges damage in the amount of $15,000 or a total damage of $30,000.

The parties will be shown in this opinion as in the Court below. That is to say, Elizabeth Smith will be referred to as plaintiff and Southern Bell Telephone and Telegraph Company as defendant.

In substance the declaration alleges that the plaintiff had operated a florist shop in the City of Memphis for years and that she had carried an advertisement in the classified columns usually referred to as the 'yellow pages' of the defendant's directories as they were issued, under the name 'ELIZABETH'S EAST MEMPHIS FLORIST', it then alleges that she entered into a contract with the defendant on June 7, 1959, for such an advertisement in its published directory.

It alleges that instead of listing her business under the name quoted above that the Telephone Company listed it in the 'yellow pages' as 'SMITH, ELIZABETH'S FLORIST'. It alleges she was not known by that name and that her business had suffered greatly on account of that error. She then avers that she tried to [51 TENNAPP 148] get defendant to run some ad or do something to correct same by calling it to the attention of her customers, and that defendant refused to do that.

In the second count she alleges that defendant was guilty of negligence in editing the said telephone book in its 'yellow pages' in the manner set forth in the first count and because of that negligence she has been damaged.

Defendant plead not guilty to each count of the declaration, and thereafter on motion to require the defendant to plead more specifically, which was granted by the Court, the defendant filed its special pleas in which it denied each and every liability to the plaintiff, and in the special pleas it relies upon the provisions of a written contract and avers:

'The defendant admits that the plaintiff has been advertising in the yellow pages of its telephone directories for several years prior to 1959 as Elizabeth's East Memphis Florist. The defendant would further show that on January 12, 1959, the plaintiff entered into a contract for a similar listing with an additional listing as East Memphis Florist, for the telephone directory to be issued on June 7, 1959.'

It then alleges that said contract which was signed by the plaintiff contains the following in its terms and conditions and upon which defendant specifically relies:

'The Telephone Company's liability on account of errors in 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.'

[51 TENNAPP 149] The pleas then aver that the limit of the liability of the defendant for error in the misprinting of the name in the directory aforesaid, if any, could not exceed $75.00, which was the charges made for the advertisement.

The company denies that there was any breach of its contract with the plaintiff and it denies that plaintiff suffered any damages from the alleged breach. It also denied every allegation of negligence set forth in each count of the declaration, and avers the listings were made in accord with the directions and requests of the plaintiff.

A replication was filed to the plea in which plaintiff states as follows:

'This plaintiff admits that the contract signed by the plaintiff contains on the back thereof the following terms and conditions:

"The Telephone Company's liability on account of errors in 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.'

'The plaintiff denies, however, that the provision has any legal effect and denies that the parties are bound by this and further states that said attempted limitation of liability is contrary to public policy and is null and void. This plaintiff joins issue with the defendant on the rest of the allegations contained in the special pleas of the defendant.'

The case was called for trial to the Court and jury and after opening statements were made to the Court and jury, the record shows that counsel for the plaintiff [51 TENNAPP 150] stated that plaintiff relied upon the written contract, signed by plaintiff, and at the end of the opening statement this contract was admitted in evidence, whereupon motion was made by defendant's attorney to uphold the above provisions of said contract and limit the liability of defendant. The Court then held the contract valid and the judgment recites:

'* * * That the Court was and is of the opinion, after argument of counsel, that said limitation of liability is valid and should be upheld and that, accordingly, said motion was sustained. That it was then stipulated by the parties hereto that the charges for advertising under said contract amounted to $75.00 and, no further proof being offered by either party, the Court directed a verdict for the plaintiff for the sum of $75.00 and the costs of the cause.'

The record does not appear to show that exceptions were saved to the action of the Court, but a motion for new trial was made, the substance of which is that it was error both as to the applicable law and the facts for the Court to uphold the contract and limit the liability of defendant. The new trial motion sets out the provision of the contract so limiting same to be void for the reason that there was no consideration for said provision and that the contract was against public policy etc.

On the hearing of the motion for new trial it is shown in this bill of exceptions, which is a sort of a narrative form, the manner in which the case was presented to the Court and the jury, and then contains this following statement:

'* * * The respective Attorneys further stated that the defendant was relying on the following provision [51 TENNAPP 151] of the contract which was introduced into evidence by stipulation as Exhibit #1, and which is attached hereto and made Exhibit 1 of this Bill of Exceptions.'

Then there is set out the provisions of the contract limiting liability which is hereinbefore quoted. The original contract, or a duplicate thereof, is filed as said Exhibit 1. It appears to be signed: 'Elizabeth's East Memphis Florist, by Elizabeth J. Smith.'

Plaintiff has filed five assignments of error in this Court and they conform to the motion for new trial. There is no necessity to set them out, however, because taken separately or collectively they raise only one question to be determined by this Court, as follows:

IS THE CONTRACT ENTERED INTO BY THE PLAINTIFF WITH THE DEFENDANT WHEREIN THE LIABILITY FOR NEGLIGENCE IS LIMITED TO THE AMOUNT CHARGED FOR THE ADVERTISEMENT A VALID, ENFORCIBLE CONTRACT?

The Court below held that the provision was valid and as above stated directed the verdict, fixing same at $75.00 in favor of plaintiff and against defendant.

The argument is made by the plaintiff in this Court that because of the fact that the defendant is a public service corporation and a public utility in the field of its service in the area involved, it can not limit its liability in such a manner because such limitation is against public policy and unenforcible.

It is true that insofar as telephonic service is concerned the defendant is the only local telephonic service within the City of Memphis.

[51 TENNAPP 152] So the question resolves itself to a determination of whether or not that the telephone company by the use of the volume in which its directory is published furnishes a classified advertising service which we know as the service shown by the 'yellow pages' wherein business, professions etc. under certain particular headings are listed and which constitutes a general advertising business, insofar as putting the names in the directory 'yellow pages' of the firms is concerned, is acting in the capacity of a public utility. There is no regulation with respect to such advertisement by the Public Service Commission of Tennessee nor by the Federal Communication Commission known to this Court or shown by the record.

The record does not reveal the actual publication in that directory at which this action is levelled, but it must be assumed that even though the word 'Smith' appears in the advertisement in front of the word 'Elizabeth's Florist' that the location of her business is properly shown by a street number, or such other designated location as is shown by the copy of the contract which appears to be 612 S. Highland, and therefore the only error of defendant alleged as negligence in the declaration is that the word 'Smith' is inserted in the advertisement.

Counsel for the plaintiff below rely upon several cases, one of which is the old case of Marr v. Western Union Telegraph Company, 85 Tenn. 529, 3 S.W. 496. It is shown by that opinion that the Western Union Telegraph Company had different rates, that is the Western Union Telegraph Company had a schedule of different rates, some five of them, which referred to different degrees of liability for error in its service as a public utility, the larger the rate...