Southern Bell Tel. and Tel. Co. v. Coastal Transmission Service, Inc., 65684

Citation167 Ga.App. 611,307 S.E.2d 83
Decision Date14 July 1983
Docket NumberNo. 65684,65684
PartiesSOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY v. COASTAL TRANSMISSION SERVICE, INC. et al.
CourtGeorgia Court of Appeals

Walter C. Hartridge, Leamon R. Holliday III, Savannah, for appellant.

James E. McAleer, Jr., D. Ray Gaskin, Savannah, for appellees.

SOGNIER, Judge.

Coastal Transmission Service, Inc. (Coastal) and its president and owner, Richard Barrow, sued Southern Bell Telephone and Telegraph Company (Southern Bell) for libel. The alleged libel appeared in Coastal's display advertisement in the 1981 Southern Bell yellow pages telephone directory. Instead of the Coastal slogan, "Get it in gear," Southern Bell printed the words, "Get it in rear." Barrow's name appeared in the body of the ad as the owner of Coastal. Both plaintiffs alleged that the ad exposed them to public hatred, contempt, and ridicule, causing injury to their reputations for honesty, integrity, and virtue. The complaints charged that as a result of the ad, both plaintiffs received numerous telephone calls and other communications many of which were obscene. Barrow alleged embarrassment and harassment of himself and his family. The trial court denied Southern Bell's motions for summary judgment and the case went to trial. The jury returned verdicts in favor of Coastal and Barrow, awarding general and punitive damages to both plaintiffs and special damages to Coastal. Southern Bell appeals.

1. Appellant contends that the trial court erred in failing to give its requested charges on the limitation of liability clauses in the contract for purchase of the yellow pages advertisement and on the requirement that the plaintiffs show wilful, wanton or grossly negligent conduct by Southern Bell in order to recover.

a. As to appellee-Barrow, appellant's contentions are without merit. The contract with Southern Bell was executed in the name of Coastal Transmission Service, Inc. and signed by Richard Barrow, President. " '[W]here in the body or on the face of the instrument the agency is distinctly specified and the principal indicated, and the contract is substantially in the name of such principal, the latter, and not the agent, will be regarded as the maker of the instrument.' " Radio Station WTMP v. Zior, 102 Ga.App. 38-39, 115 S.E.2d 627 (1960). Barrow did not purport to bind himself individually on the contract but executed the document only in his representative capacity as president. Therefore, Barrow as an individual is not bound by the contract or by the limitation of liability clause therein.

As to Barrow individually, the trial court did not err in failing to charge that Barrow was required to show wilful or wanton conduct or gross negligence on the part of appellant in order to recover.

b. As to appellee--Coastal, however, we hold differently. The limitation of liability clause at issue states: "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 ... AND SUCH LIABILITY SHALL BE DISCHARGED BY ABATEMENT OF THE CHARGES FOR THE PARTICULAR LISTING OR ADVERTISEMENT IN WHICH THE OMISSION OR ERROR OCCURRED." The publication of the offensive phrase, "get it in rear," was obviously caused by substitution of the letter "r" for the letter "g" in the word "gear."

In Southern Bell v. C & S Realty Co., 141 Ga.App. 216, 221, 233 S.E.2d 9 (1977), overruled on other grounds Ga.-Carolina Brick Etc. Co. v. Brown, 153 Ga.App. 747, 752, 266 S.E.2d 531 (1980), we said: "Since publication of the yellow pages is apart from Southern Bell's public service it may relieve itself by valid contract from liability for ordinary negligence, and such an agreement is not void as against public policy. See Seaboard C.L.R. Co. v. Freight Delivery Service, 133 Ga.App. 92, 93(1), 210 S.E.2d 42 (1974) and cits.; Neering v. Southern Bell Tel. & Tel. Co., 169 F.Supp. 133 (S.D.Fla.1958), where summary judgment was granted to Southern Bell on the basis of the same contract clause involved here ...." In Tucker v. Southern Bell Tel. etc. Co., 149 Ga.App. 2, 3, 253 S.E.2d 390 (1979) we again recognized the validity of an exculpatory provision in a contract for advertisement in the yellow pages. In Tucker we said: "Tucker concedes that in view of the exculpatory contractual provision he must show wilful or wanton conduct or conduct so charged with indifference to the consequences as to justify the jury finding a wantonness equivalent in spirit to actual intent to injure him in order for him to recover from Southern Bell in this case." Tucker, supra at 3, 253 S.E.2d 390. Gross negligence may likewise be shown to overcome the barrier presented by the exculpatory contractual provision. See Tucker, supra at 4, 253 S.E.2d 390; C & S Realty Co., supra, 141 Ga.App. at 221 (1d)-222, 233 S.E.2d 9.

A claim for relief in a libel action can be based upon negligence. See Retail Credit v. Russell, 234 Ga. 765, 770, 218 S.E.2d 54 (1975). There is no reason, logically nor from a public policy point of view, to distinguish, for purposes of applying a limitation of liability clause in an advertising contract, between a cause of action based upon a negligent error or omission which results in loss of business and a cause of action based upon a negligent error or omission which results in an alleged libelous statement. Since we have held in C & S Realty Co., supra, that the limitation of liability is protection against ordinary negligence and since we have likewise held in the same case that the limitation of liability is not against public policy, we reverse for failure to charge on the effect of the exculpatory clause and the necessity of a finding of wanton or wilful conduct or gross negligence. We here treat wilful or wanton conduct as a different standard than that of gross negligence (absence of slight diligence, see OCGA § 51-1-4 (Code Ann. § 105-203)) as it is well settled in this state that there is a distinction between the two. Caskey v. Underwood, 89 Ga.App. 418, 422, 79 S.E.2d 558 (1953). No magic appears in the word libel that would circumvent the limitation of liability. This is a tort which was allegedly caused by negligence. A claim for damages arising because of injury to a business' reputation and the loss of monetary value by reason of damage to business is not so different as to avoid the rule in C & S Realty Co., supra, and Tucker, supra, where we sustained the use of the same limitation of liability. The claim here alleged arose directly out of the error and omission of the telephone company. Coastal and Southern Bell contracted to limit Southern Bell's liability for its omissions and errors. We cannot say that this incident was not within the contemplation of the parties. We must give intent to the words of the parties not the sweep of their imagination, nor what we think they might have contemplated when entering into an agreement.

The trial court erred in failing to charge on the limitation of liability clause and on the requirement that Coastal show wilful or wanton conduct or gross negligence on the part of appellant. Accordingly, appellant is entitled to a new trial as to Coastal.

2. Appellant contends that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict. Several grounds are raised.

a. Appellant contends that the published statement, "Get it in rear," is not libelous. As a general rule, the question of whether a particular publication is libelous is a question for the jury. Davis v. Macon Tel. Pub. Co., 93 Ga.App. 633, 634, 92 S.E.2d 619 (1956). If its meaning is not ambiguous and can reasonably have but one interpretation, the question is one of law for the judge (Ledger-Enquirer Co. v. Brown, 214 Ga. 422, 424, 105 S.E.2d 229 (1958)), but "the trial judge, reading and construing the publication as a whole, may find that it is not defamatory, that it is defamatory, or that it is ambiguous and the question is one for a jury." Ferguson v. Park Newspapers etc., 148 Ga.App. 848, 849, 253 S.E.2d 231 (1979). In the instant case the trial court submitted it to the jury for resolution. We find no fault with that decision as the question as to what effect would be produced upon the public by reading the words used by the publisher of an alleged libel, and the determination of whether or not the tendency of the publication was to bring the plaintiff into hatred, contempt, or ridicule, is an issue of fact for the jury and not a matter of law to be determined by the court. Horton v. Georgian Co., 175 Ga. 261(2), 165 S.E. 443 (1932). See generally, Pacific & Southern Co. v. Montgomery, 233 Ga. 175, 180, 210 S.E.2d 714 (1974).

We do not agree with appellant's assertion that Barrow and Coastal could not both claim defamation by the advertisement. One publication can libel more than one party, and each party libeled may bring an action. See Constitution Pub. Co. v. Leathers, 48 Ga.App. 429(1), 433, 172 S.E. 923 (1933). Whether this one publication libeled both the owner--whose name was prominently stated in the ad--and the commercial enterprise, is an issue for the jury. Davis v. Macon Tel. Co., supra, 93 Ga.App. at 634(3), 92 S.E.2d 619; Southland Pub. Co. v. Sewell, 111 Ga.App. 803, 807, 143 S.E.2d 428 (1965).

There was sufficient evidence of record to support the finding of the jury as to Barrow, and to have submitted the issue of libel to the jury as to Coastal.

b. Appellant contends that the award of punitive damages was unsupported by the evidence. The Georgia Codal standard for imposition of punitive damages in a libel case is that provided in Code Ann. § 105-2002 [OCGA § 51-12-5], which provides "[i]n every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury...

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