Southern Bell Tel. & Tel. Co. v. C & S Realty Co.

• Decision Date: 17 January 1977
• Docket Number: No. 3,No. 53178,53178,3
• Citation: 233 S.E.2d 9,141 Ga.App. 216
• Parties: SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. C & S REALTY COMPANY
• Court: Georgia Court of Appeals

Page 9

233 S.E.2d 9

141 Ga.App. 216

SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. C & S REALTY COMPANY.

No. 53178.

Court of Appeals of Georgia, Division No. 3.

Jan. 17, 1977.

Rehearing Denied Feb. 8, 1977.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Harry S. Baxter, A. Kimbrough Davis, Edmund M. Kneisel, Susan A. Cahoon, Atlanta, for appellant.

Worozbyt & Nodvin, Marvin P. Nodvin, Atlanta, for appellee.

WEBB, Judge.

Southern Bell brings this appeal from a judgment awarding C & S Realty Company $55,000 actual damages and $35,000 as attorney fees. C & S Realty Company instituted the action on April 4, 1973, by filing a three count complaint seeking actual damages, exemplary and vindictive damages plus attorney fees, predicated upon allegations of breach of contract, gross negligence and bad faith concerning Southern Bell's telephone service and listings. It subsequently filed an amended complaint adding two counts seeking damages.

At the trial of the case before a jury the following essential facts were established. Since 1950 C & S Realty Company had been in business and maintained listings in both the alphabetical telephone directory White Pages and the classified telephone directory Yellow Pages, published by Southern Bell for the Atlanta area, and had contracted for additional listings and advertising in the Yellow Pages under various classifications including Realtors, Property Management and Property Development. On February 11, 1971, a directory advertisement renewal authorization in the firm name of "C & S Realty" was executed with Southern Bell for listings and advertising in the Yellow Pages to be published for use in 1972. On or about September 10, 1971, an employee in Southern Bell's business office received instructions from "C & S Realty Investors" to make its listing a private number. Such an order operates to supersede any previous instructions from the customer with respect to listings in the White Pages and advertising in the Yellow Pages. Southern Bell's employee erroneously ascribed the order from "C & S Realty Investors" to the account of "C & S Realty Company" when she completed the order form, and a directory advertising application was prepared to remove the listings and advertising of C & S Realty Company from both the White and Yellow Pages then being prepared for distribution for use in 1972. C & S Realty Company became aware of the error when it discovered that its main number had been disconnected and reassigned and it received its monthly bill which included a service charge for changing a listing to a private number. Corrections could not be made in time for the former number to appear in the 1972 White or Yellow Pages and normal telephone service was not restored until June of 1972. Errors in the addresses of C & S Realty Company and two of its officers also appeared in later editions of both directories.

At the close of the evidence Southern Bell made a motion for directed verdict on each of the counts of the complaint, which was denied. The jury returned a verdict for C & S Realty Company on Count I and a verdict for Southern Bell on each of the other four counts. ¹ Following entry of judgment Southern Bell moved for judgment notwithstanding the verdict or, in the alternative, for a new trial or for an order reducing an excessive verdict. It now appeals the denial of this motion.

As a general rule, the question of damages being one for the jury, appellate courts should not interfere with such awards. Code Ann. § 105-2015; Kiker v. Davis, 103 Ga.App. 289, 290(1), 118 S.E. 861 (1961). However, applicable tariffs and contractual provisions here expressly limit Southern Bell's liability to specified amounts absent a showing of gross negligence, and the evidence adduced upon the trial is devoid of facts establishing that the omission of C & S Realty's listings and advertisements from the 1972 directories was wilful or resulted from the gross negligence and bad faith of Southern Bell employees. We therefore conclude that the trial court erred in overruling Southern Bell's motion for directed verdict and subsequent motion for judgment n. o. v. as to Count I of the complaint.

1. (a). Southern Bell's liability as to errors in the White Pages of the telephone directory is limited by Section A2.5.1(d) of the Public Service Commission General Subscriber Services Tariff, effective January 1, 1969. Apart from a credit allowance equal to 1/30 of the tariff monthly rate for all services and facilities rendered useless for each 24 hours during which service has been interrupted, "no liability shall attach to the telephone company, its agents, servants or employees, in the course of establishing, furnishing, rearranging, moving, terminating, or changing the service or facilities (including the obtaining or furnishing of information in respect thereof or with respect to the subscribers or users of the service or facilities) in the absence of gross negligence or willful misconduct." This court has recently upheld such limitations on liability to subscribers as relevant to the rate-making powers of the Public Service Commission and therefore constitutional and binding on subscribers. Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 130 Ga.App. 798(1), 204 S.E.2d 457 (1974) Cert. Den., April 4, 1974.

b). Questions of negligence, including gross negligence, are ordinarily issues for jury determination Stanley v. Carpenter, 118 Ga.App. 607(2), 164 S.E.2d 883 (1968), "except in plain, palpable, and indisputable cases. (Cits.)" Peacock v. Sheffield, 115 Ga.App. 116, 121, 153 S.E.2d 619, 622 (1967); Macon Telegraph Publishing Co. v. Graden, 79 Ga.App. 230(1(d)), 53 S.E.2d 371 (1949).

There was no factual dispute here that the listing for C & S Realty was omitted from the 1972 White Pages or that the omission was caused by an error on the part of an employee of Southern Bell. However Southern Bell provides training to its employees designed to minimize errors and there had been no prior complaints about the performance of this employee's duties or any reason to believe that she was anything other than efficient, careful and competent. The error was caused by her confusion between C & S Realty Company, the plaintiff, and C & S Realty Investors, another Southern Bell subscriber. Officers of C & S Realty Company testified that there had been numerous prior occasions when people confused its name with similarly-named concerns such as the C & S National Bank, or called C & S Realty Company believing it to be affiliated with the C & S Bank. ² Out of some 345,000 Yellow Page entries processed, there was an overall error rate of one half of one percent.

This court has defined gross negligence to be "equivalent to failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence or the absence of slight diligence, or the want of even scant care." Tidwell v. Tidwell, 92 Ga.App. 54, 57(4), 87 S.E.2d 657, 659 (1955). There have been no decisions in Georgia concerning gross negligence in the context of telephone directory listings but a review of cases from other jurisdictions reveals that where applicable tariff or contractual provisions limit a telephone company's liability, the courts generally rule as a matter of law that judgment should be entered for the defendant. See, e. g., Robinson Insurance and Real Estate v. Southwestern Bell Tel. Co., 366 F.Supp. 307 (W.D.Ark.1973); Wheeler Stuckey, Inc. v. Southwestern Bell Tel. Co., 279 F.Supp. 712 (W.D.Okl.1967); Smith v. Southern Bell Tel. & Tel. Co., 51 Tenn.App. 146, 364 S.W.2d 952 (1962); Hamilton Employment Service, Inc. v. New York Tel. Co., 253 N.Y. 468, 171 N.E. 710 (1930). See generally Montana ex rel. Mountain States Tel. & Tel. Co. v. District Court, 160 Mont. 443, 503 P.2d 526 (1972).

Thus it has been stated in an annotation on this subject: "That degree of grossness of negligence required to overcome the effect of an applicable limitation of liability or to permit the recovery of exemplary damages has not been found to have been established in any case involving merely inadvertently, as distinguished from truly intentionally, erroneous listings . . . (N)o case within the annotation has clearly held that merely inadvertent or negligent directory errors, as distinguished from literally intentional errors, . . . may be found to constitute gross negligence, and several have held to the contrary." 92 A.L.R.2d 917, § 2 at 921, § 13 at 945 (1963). The Supreme Court of North Carolina recently reaffirmed these comments by reversing a contrary ruling of the Court of Appeals. Gas House, Inc. v. Southern Bell Tel. & Tel. Co., 289 N.C. 175, 221 S.E.2d 499 (1976).

We find no evidence in the voluminous transcript here to indicate anything other than inadvertent clerical error as the cause of the omission of C & S Realty's 1972 listings. We thus conclude, in light of the persuasive authorities hereinabove cited granting judgment as a matter of law in directory-error cases, that the trial court erred in submitting to the jury the question of whether there was gross negligence or a wilful and wanton error. Southern Bell's liability for the omission is limited to the credit allowance provided by the General Subscriber Service Tariff in Section A2.5.1(d).

c) Southern Bell's liability for the omission of C & S Realty's listings and advertising in the 1972 Yellow Pages is limited by contract to the amount of its charges for such listings and advertising. The publication of the Yellow Pages is governed in general by a limitation of liability stated in each issue, ³ and in this case there was an additional contractual limitation for errors or omissions set forth in C & S Realty's contract with Southern Bell for 1972...