Southern Bell Tel. & Tel. Co. v. C & S Realty Co., No. 53178
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | WEBB; DEEN, P. J., and MARSHALL |
| Citation | 233 S.E.2d 9,141 Ga.App. 216 |
| Parties | SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. C & S REALTY COMPANY |
| Docket Number | No. 3,No. 53178 |
| Decision Date | 17 January 1977 |
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v.
C & S REALTY COMPANY.
Rehearing Denied Feb. 8, 1977.
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[141 Ga.App. 223] Kilpatrick, Cody, Rogers, McClatchey & Regenstein, [141 Ga.App. 224] Harry S. Baxter, A. Kimbrough Davis, Edmund M. Kneisel, Susan A. Cahoon, Atlanta, for appellant.
Worozbyt & Nodvin, Marvin P. Nodvin, Atlanta, for appellee.
[141 Ga.App. 216] 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 [141 Ga.App. 217] 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
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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.
[141 Ga.App. 218] 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,[141 Ga.App. 219] 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,
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Southern Bell provides training to its employees designed to...To continue reading
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Hayes v. Irwin, Civ. A. No. C 77-2027 A.
...Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir. 1974); Southern Bell Telephone & Telegraph Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977). Furthermore, the willful violation of the rights of another involves the species of bad faith that will entitle the perso......
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Southwestern Bell Telephone Co. v. Delanney, No. 9614
...Oldsmobile, Inc. v. Diamond State Telephone Co., 494 A.2d 636 (Del.1985); Southern Bell Telephone and Telegraph Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977), overruled in part on other grounds, Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (198......
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MOBILE ELECTRONIC SERV. v. FIRSTEL, INC, No. 21818.
...v. Southern Bell Telephone and Telegraph Co., 580 So.2d 628 (Fla.App. 1 Dist. 1991); Southern Bell Tel. & Tel. Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977) (overruled in part on other grounds); Georgia-Carolina Brick and Tile Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (1......
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Southern Bell Tel. and Tel. Co. v. Coastal Transmission Service, Inc., No. 65684
...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 sai......
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Hayes v. Irwin, Civ. A. No. C 77-2027 A.
...Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518 (5th Cir. 1974); Southern Bell Telephone & Telegraph Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977). Furthermore, the willful violation of the rights of another involves the species of bad faith that will entitle the perso......
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Southwestern Bell Telephone Co. v. Delanney, No. 9614
...Oldsmobile, Inc. v. Diamond State Telephone Co., 494 A.2d 636 (Del.1985); Southern Bell Telephone and Telegraph Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977), overruled in part on other grounds, Georgia-Carolina Brick & Tile Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (198......
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MOBILE ELECTRONIC SERV. v. FIRSTEL, INC, No. 21818.
...v. Southern Bell Telephone and Telegraph Co., 580 So.2d 628 (Fla.App. 1 Dist. 1991); Southern Bell Tel. & Tel. Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9 (1977) (overruled in part on other grounds); Georgia-Carolina Brick and Tile Co. v. Brown, 153 Ga.App. 747, 266 S.E.2d 531 (1......
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Southern Bell Tel. and Tel. Co. v. Coastal Transmission Service, Inc., No. 65684
...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 sai......