Southern Bell Tel. and Tel. Co. v. Hanft

• Decision Date: 16 June 1983
• Docket Number: No. 61224,61224
• Citation: 436 So.2d 40
• Parties: SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v. Donald HANFT, Respondent.
• Court: Florida Supreme Court

Page 40

436 So.2d 40

SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Petitioner, v.Donald HANFT, Respondent.

No. 61224.

Supreme Court of Florida.

June 16, 1983.

Rehearing Denied Sept. 8, 1983.

Dana G. Bradford II of Gallagher, Baumer, Mikals & Bradford, Jacksonville, for petitioner.

Arnold R. Ginsberg of Horton, Perse and Ginsberg, Miami, and Krongold & Bass, Coral Gables, for respondent.

BOYD, Justice.

This cause is before the Court on petition for review of a decision of a district court of appeal, Hanft v. Southern Bell Telephone & Telegraph Co., 402 So.2d 453(Fla. 3d DCA1981).On the question of whether punitive damages may be awarded for the grossly negligent breach of a contractual duty, the decision below is in conflict with Carter v. Lake Wales Hospital Association, 213 So.2d 898(Fla. 2d DCA1968), and other decisions.We have jurisdiction.Art. V, § 3(b)(3), Fla. Const.

RespondentDr. Donald Hanft brought this action against Southern Bell Telephone and Telegraph Company seeking compensatory and punitive damages.The basis of the complaint was the allegation that Southern Bell had agreed to list Dr. Hanft as a physician and as a specialist in obstetrics and gynecology in the Yellow Pages of its telephone directory and that his name was omitted from such lists for two consecutive years.

The complaint was set forth in three counts.Count one alleged that Southern Bell had breached its promise to list Dr. Hanft and his correct address and telephone number in the two lists in the Yellow Pages of the 1973-74 telephone directory, and claimed damages as a result of the breach.Count two alleged that Dr. Hanft was omitted from these lists again when the defendant published its 1974-75 directory, and again claimed compensatory damages.Count three alleged that, since Dr. Hanft had communicated with Southern Bell numerous times concerning his desire to be listed in the 1974-75 Yellow Pages, and had been assured that the proper listing would be published, the second breach constituted gross negligence.Count three demanded punitive damages.

Southern Bell filed an answer containing a general denial and raising four affirmative defenses: (1) statutory invalidity of the oral contract; (2) lack of consideration; (3) a disclaimer, published in Southern Bell's directories, negating liability; and (4) compromise and settlement.After plaintiff's counsel had presented Dr. Hanft's evidence and rested, defense counsel moved for a directed verdict.The trial judge found that plaintiff had not proven his consequential damages with the legally required specificity and directed a verdict for the defendant on counts one and two.The trial judge further found that there had been no proof of willful, wanton, or malicious conduct by defendant towards the plaintiff, and so directed a verdict for defendant on count three as well.When defense counsel raised the question of whether counts one and two might still go to the jury for a determination that a legal wrong had taken place and for an award of nominal damages, the judge ruled that even nominal damages were precluded because, he found, Dr. Hanft had accepted a settlement from Southern Bell in the form of two years of free telephone service.

On appeal, the district court reversed, holding that the defendant's motion for a directed verdict as to counts one and two, based upon the failure to adequately prove compensatory damages, had inherently conceded "that there was an invasion of the plaintiff's legal rights."402 So.2d at 455-56.The district court further concluded that the evidence was in conflict on the issue of compromise and settlement, so that counts one and two should have been submitted to the jury to consider nominal damages.Dr. Hanft apparently did not appeal the trial court's rulings regarding compensatory damages under counts one and two.

The district court also reversed the order directing a verdict as to the claim for punitive damages, holding that plaintiff's evidence should have gone to the jury for determination of whether the defendant's conduct was so willful, wanton, malicious or outrageous as to justify punitive damages.Petitioner Southern Bell contends that this decision was erroneous.

In general, punitive damages may not be awarded in cases based upon breach of contract.In order for punitive damages to be recoverable in such a case, the breach of contract must be attended by some additional wrongful conduct amounting to an independent tort.Lewis v. Guthartz, 428 So.2d 222(Fla.1982).For punitive damages to be recoverable in a contract case, an intentional wrong, willful or wanton misconduct, or culpable negligence, the extent of which amounts to an independent tort, must be shown.Nicholas v. Miami Burglar Alarm Co., 339 So.2d 175(Fla.1976);American International Land Corp. v. Hanna, 323 So.2d 567(Fla.1975);Griffith v. Shamrock Village, Inc., 94 So.2d 854(Fla.1957).Once an independent tort is established, then then question of whether punitive damages are proper is decided under principles traditionally applicable to such question in tort cases.Willful, wanton, malicious, or outrageous misconduct must be shown.See, e.g., Ross v. Gore, 48 So.2d 412(Fla.1950);Kirksey v. Jernigan, 45 So.2d 188(Fla.1950);Dr. P. Phillips & Sons, Inc. v. Kilgore, 152 Fla. 578, 12 So.2d 465(1943);Carter v. Lake Wales Hospital Association, 213 So.2d 898(Fla. 2d DCA1968).

Although couched in terms of negligence, the first two counts of Dr. Hanft's complaint in essence stated a cause of action for breach of contract.In order to prevail on the claim, the plaintiff needed to prove, among other things, that the defendant failed to fulfill its promises to list Dr. Hanft in the Yellow Pages.It was immaterial to the breach of contract action whether the breach was committed intentionally, negligently, or because of circumstances entirely beyond the defendant's control.Although the complaint alleged that in failing to include Dr. Hanft's name the second time the defendant was grossly negligent, there was no evidence presented showing the manner or method of Southern Bell's employees' conduct causing the failure.There was no proof that the breach of contract was attended by some conduct amounting to an independent tort.

The plaintiff's case consisted of his own testimony and the testimony of three of Southern Bell's employees.Dr. Hanft testified that after his name did not appear in the Yellow Pages as promised, he communicated with several of Southern Bell's employees numerous times in an effort to assure that he...