Thomas v. General Telephone Directory Co.

• Decision Date: 19 October 1983
• Docket Number: Docket No. 65605
• Citation: 339 N.W.2d 257,127 Mich.App. 788
• Parties: Keith THOMAS, d/b/a Keith's Lock & Key Service, Plaintiff-Appellee, v. GENERAL TELEPHONE DIRECTORY COMPANY, Defendant-Appellant. 127 Mich.App. 788, 339 N.W.2d 257
• Court: Court of Appeal of Michigan — District of US

Page 257

339 N.W.2d 257

Keith THOMAS, d/b/a Keith's Lock & Key Service Plaintiff-Appellee, v. GENERAL TELEPHONE DIRECTORY COMPANY, Defendant-Appellant.

Docket No. 65605.

127 Mich.App. 788, 339 N.W.2d 257

Court of Appeals of Michigan.

Submitted June 30, 1983.

Decided Aug. 2, 1983.

Released for Publication Oct. 19, 1983.

[127 MICHAPP 789] Norman K. Marsh, Sault Ste. Marie, for plaintiff-appellee.

Cholette, Perkins & Buchanan by Robert J. Riley, Grand Rapids, for defendant-appellant.

Before WALSH, P.J., and MAHER and ROUMELL, ^* JJ.

PER CURIAM.

Defendant appeals by leave granted from the trial court's order denying defendant's motion for summary or accelerated judgment.

Plaintiff, a locksmith, filed a complaint against defendant, alleging that it committed "simple negligence" and, alternatively, "willful, wanton and gross conduct [sic]" inasmuch as defendant listed plaintiff's advertisement in the yellow pages of defendant's telephone directory under "Loans" rather than "Locksmiths".

Defendant moved for summary or accelerated judgment. It asked for accelerated judgment, pursuant to GCR 1963, 116.1(2), on the ground that the Public Service Commission, not the circuit [127 MICHAPP 790] court, has jurisdiction over plaintiff's claim. It asked for summary judgment, pursuant to GCR 1963, 117.2(1), for the reason that 1979 AC, R 460.1960(3) and General Telephone Company of Michigan Tariff MPSC No. 7 limit defendant's liability for errors in a directory listing to refund of the charge for the listing and that plaintiff's charge had been refunded.

The trial court denied the motion. This Court granted leave on October 6, 1982.

There are two issues on appeal. First: Does the circuit court or the Public Service Commission have jurisdiction over plaintiff's claim? Second: Assuming arguendo that the circuit court has jurisdiction, is defendant's liability limited by the applicable code and tariff provisions?

I

The Supreme Court has discussed in several cases the circuit court's jurisdiction to adjudicate a plaintiff's claims against a telephone company. In Harbaugh v. Citizens Telephone Co., 190 Mich. 421, 157 N.W. 32 (1916), a declaration for trespass on the case against a telephone company for wrongful refusal to connect plaintiff's telephone with a city exchange, charging loss of business, was held to state a cause of action for which damages could be recovered. Harbaugh recognized that in some situations a court of general jurisdiction is the proper forum in which to sue a telephone company.

In Muskegon Agency, Inc. v. General Telephone Co. of Michigan, 340 Mich. 472, 65 N.W.2d 748 (1954), the plaintiff sued for damages suffered due to negligence of a telephone company in assigning a number. The Court found that the plaintiff's action could be adjudicated by the circuit court [127 MICHAPP 791] because the action was one "sounding in tort * * * ". This holding was reaffirmed in Muskegon Agency, Inc. v. General Telephone Co. of Michigan, 350 Mich. 41, 85 N.W.2d 170 (1957).

The latest word from the Supreme Court on this topic is found in Valentine v. Michigan Bell Telephone Co., 388 Mich. 19, 199 N.W.2d 182 (1972). The plaintiff brought suit alleging that the telephone company had not provided him with adequate service. The trial court granted defendant's motion for summary judgment. The Court, on review, discussed the jurisdiction question at some length. The Court described the jurisdiction of the Public Service Commission as follows:

"[T]he code or tariff is part of the contract between the parties and limits of liability therein contained are presumptively valid. Any claim based upon the contractual obligation of the parties is limited to validly promulgated provisions of the tariff or code within the authority of the Public Service Commission. Ordinarily, a party aggrieved by the provisions of a tariff or code should seek relief by an attack upon those provisions before the Public Service Commission and from it to the Ingham County Circuit Court." 388 Mich. 26, 199 N.W.2d 182.

The jurisdiction of the circuit court is set forth in the following passages:

"If a plaintiff's cause of action is based upon a claim that the utility has violated Public Service Commission promulgated tariffs or codes, or if the claim covers some action by the utility outside of the regulations of the Public Service Commission, a court of general jurisdiction is the proper forum. * * * Harbaugh, supra, and Muskegon Agency cases, supra, have clearly established that the proper forum for a claim sounding in tort is a court of general jurisdiction of this state." 388 Mich. 25-26, 199 N.W.2d 182.

"A claim that sets forth facts showing a plaintiff [127 MICHAPP 792] suffered damage as a result of a violation of the tariffs and regulations can be entertained by a court of general jurisdiction, or a claim in tort that sets forth facts which would constitute tortious conduct to the injury and damage of the claimant can also be filed in a court of general jurisdiction." 388 Mich 30, 199 N.W.2d 182.

Thus, under Valentine, if the plaintiff's claim sounds in tort, it is for the court; if it is a claim on a contract, it is for the Public Service Commission.

The principles of Valentine must be applied to the instant case. That task is considerably easier in light of this Court's decision in B & W Rustproofing, Inc. v. Michigan Bell Telephone Co., 88 Mich.App. 242, 276 N.W.2d 572 (1979). The plaintiff alleged in its complaint that the defendant failed to include its new number in the latest telephone directory. This Court concluded:

"The complaint sets forth allegations contending that defendant acted in a negligent manner. Since the complaint alleges tortious conduct on the part of defendant it was properly brought in circuit court." 88 Mich App 245, 276 N.W.2d 572. (Footnote omitted.)

This case also involves an allegation that the telephone company acted negligently regarding a listing in a telephone directory. Thus, the action was properly brought in circuit court.

II

The next issue is whether the defendant's liability is limited by the applicable code and tariff provisions. 1979 AC, R 460, 1960(3) provides:

"(3) The telephone utility is not liable for errors in or omissions from directories except in cases where a specific charge has been made for a listing; in no event [127 MICHAPP 793] shall the liability for such error of omission be beyond the amount of the specific charge."

General Telephone Company Tariff MPSC No. 7, First Revised Sheet 8.1 provides:

"For the convenience of the service, a directory for each exchange is published from time to time, but as experience demonstrates that errors and omissions will occur with more or less frequency, the Telephone Company is not liable for errors or omissions from the directories except in cases where a specific charge has been made for listing; in no event shall the Telephone Company be liable for any such error or omission beyond the amount of such charge."

The defendant argues that, under Valentine, plaintiff's recovery is limited...