Tate v. Mountain States Tel. and Tel. Co.
| Decision Date | 08 June 1982 |
| Docket Number | No. 5632,5632 |
| Parties | Jeanine TATE, d/b/a Circle T Answering Service, and Walter F. Tate, Appellants (Plaintiffs), v. MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Charles E. Graves, of Graves, Hacker & Phelan, P. C., Cheyenne, signed the brief and appeared in oral argument on behalf of appellants.
Thomas A. Nicholas, III, of Hirst & Applegate, Cheyenne, signed the brief and W. Douglas Hickey, of Hirst & Applegate, Cheyenne, appeared in oral argument on behalf of appellee.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
Appellants-plaintiffs' complaint in this case sets forth two claims for relief; one founded on negligence and one founded on breach of contract, both of which resulted from the same incident. Appellants and appellee-defendant entered into an agreement whereby appellee agreed to furnish and install a "call director" and a private branch exchange service (hereinafter referred to as PBX) at appellants' business location for use in operation of an answering service. Appellants contend that the delay in the installation of the PBX damaged them in the amount of $30,000.00. In its answer, appellee alleged, among other things, that any delay was caused by appellants' negligence and that appellants' negligence was equal to or greater than any negligence of appellee.
The trial court granted appellee's motion for a summary judgment and found that the incident was governed by the provisions of the appellee's General Exchange Tariff which provides in pertinent part:
It found, further, that appellants' recovery would be limited to the credit allowance set forth in paragraph G.2 of the tariff in the absence of proof of gross negligence or willful misconduct and that the trial would be limited to appellants' "claims based upon the alleged gross negligence of" appellee. After a trial so limited, the jury found that the actions of appellee did not constitute gross negligence.
Appellants word several issues on this appeal, but each is included in the general question as to whether or not the summary judgment was proper as a matter of law.
Inasmuch as it was not, we reverse and remand the case.
The above quoted limitations contained in the appellee's General Exchange Tariff were accepted by the court in the grant of a summary judgment. We will consider them separately.
Turning first to the limitation of any liability on the part of appellee absent "gross negligence or willful misconduct" as provided in paragraph G.5 of the General Exchange Tariff, supra, we find such to be in conflict with the standard set by the legislature for determining liability for negligence in Wyoming.
Since the enactment of the comparative negligence statute, § 1-1-109, W.S.1977, 1 the determination of liability in a negligence case must be considered with reference to comparative negligence on a percentage basis. In Danculovich v. Brown, Wyo., 593 P.2d 187 (1979), we said at pages 192-193:
(Footnote omitted and bracketed material added.)
The case before us is an example of the inconsistency which results from an effort to correlate "gross negligence" with comparative fault. The trial court defined "negligence" as "the failure to use ordinary care" and "gross negligence" as It then instructed the jury that the "defendant is at fault when it is grossly negligent" and the "plaintiffs are at fault when they are guilty of negligence." It instructed the jury "to determine the percentage of fault, if any, of each of the parties." The following special verdict form was submitted to the jury:
The jury answered the first question "no," and, pursuant to directions, did not answer the other questions.
The instructions requested the jury to "determine the percentage of fault." To do so between gross negligence and ordinary negligence, an additional element is necessary, i.e., the exact quantative relationship between the two. How much ordinary negligence is required to make 1 percent of gross negligence? The verdict form, in effect, directs that if appellee is not found to be grossly negligent, a comparison of fault is unnecessary. This is not that which is said in the comparative negligence statute. The statute provides that recovery would be barred if appellants' negligence was found to be at least 50 percent of the 100 percent attributable to the two parties. But gross negligence is not defined in a determinate percentage fashion. As said by Professor Prosser, supra, it is "an unhappy term of ill-defined content."
The public policy, then, as established by the comparative negligence statute is to abolish "gross" as a measure of negligence in negligence actions.
The parties to this action cannot change the state policy by contract. They cannot contract that liability in future instances will be measured only by gross negligence any more than they can contract that liability in future instances will be measured only by the old contributory negligence standard. To attempt to do so is quite different than placing a contractual limit on liability. It is an attempt to contractually change the standard or policy set by the state for determining the existence of liability. Such will not be allowed. "Contractual provisions cannot rise above constitutional and statutory law," Tri-County Electric Association, Inc. v. City of Gillette, Wyo., 584 P.2d 995, 1004 (1978).
"Willful misconduct" referred to in paragraph G.5 of appellee's General Exchange Tariff, supra, differs in kind from negligence. Danculovich v. Brown, supra. The trial court properly instructed the jury that willful misconduct was not an issue in this case.
Generally, a contract which is contrary to public policy will not be recognized by the court, and the parties to such contract will be left as the court finds them. Owens v. Capri, 65 Wyo. 325, 202 P.2d 174 (1949); and Claus v. Farmers & Stockgrowers State Bank, 51 Wyo. 45, 63 P.2d 781 (1936).
" * * * (B)ut that rule is not applicable in a case where the...
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