Tucker v. Southern Bell Tel. & Tel. Co.

• Decision Date: 09 February 1979
• Docket Number: No. 56644,56644
• Court: Georgia Court of Appeals
• Parties: TUCKER v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.

Page 390

253 S.E.2d 390

149 Ga.App. 2

TUCKER v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.

No. 56644.

Court of Appeals of Georgia.

Argued Oct. 16, 1978.

Decided Jan. 15, 1979.

Rehearing Denied Feb. 9, 1979.

Carl J. Wilson, Jr., Macon, for appellant.

Jones, Cork, Miller & Benton, Thomas C. Alexander, H. Jerome Strickland, Warren C. Grice, Macon, for appellees.

McMURRAY, Judge.

Plaintiff Tucker contracted with defendant Southern Bell Telephone & Telegraph Company for the publishing of an advertisement in the yellow pages section of certain telephone directories to promote his business as the authorized distributor of Cincinnati Time Recorder Company. The contract contained the provision that "(t)he Telephone Company's liability on account of errors in or omissions of such advertising shall in no event exceed the amount of charges for the advertising which was omitted or in which the error occurred in the then current directory issue and such liability shall be discharged by an abatement of the charges for the particular listing or advertisement in which the omission or error occurred." Plaintiff's business was not published as the authorized distributor for Cincinnati Time Recorder Company, but the business of defendant Bartlett, the former authorized distributor, was published as the authorized distributor for Cincinnati Time Recorder Company. Southern Bell concedes that the ad was not published as contracted with Tucker and has abated its charges for the erroneous ad. Tucker brought this action against Southern Bell alleging that the error in the yellow pages listing was due to the reckless conduct and indifference of Southern Bell resulting in loss of sales and service business to Tucker's business. Tucker also named Bartlett as defendant alleging that he had wrongfully exploited and taken advantage of the error in the yellow pages.

After discovery Southern Bell made its motion for summary judgment. Summary judgment was granted in favor of Southern Bell against Tucker, and Tucker appeals. Held :

Tucker concedes that in view of the exculpatory contractual provision he must show wilful or wanton conduct or conduct so charged with indifference to the consequences as to justify the jury finding a wantonness equivalent in spirit to actual intent to injure him in order for him to recover from Southern Bell in this case. "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 Tel. Pub. Co. v. Graden, 79 Ga.App. 230(1d), 53 S.E.2d 371 (1949)." Southern Bell Tel. etc. Co. v. C & S Realty Co., 141 Ga.App. 216, 218(1b), 233 S.E.2d 9, 11.

The leading case in Georgia concerning gross negligence in the context of telephone directory listing is Southern Bell Tel. etc. Co. v. C & S Realty Co., 141 Ga.App. 216, 233 S.E.2d 9, supra. In that case a Southern Bell employee erroneously completed an order form so as to remove the listing and advertisement of C & S Realty Company from both the white and yellow pages. That error occurred when an order from a similarly named concern was ascribed to the account of C & S Realty Company. This court in reversing an award of damages by a trial jury against Southern Bell found no evidence to indicate anything other than inadvertent clerical error as the cause of the omission.

In the case sub judice Southern Bell has presented evidence that in order for a business to be listed under the trademark or logo of a national concern the business must be listed on a "national order" for advertising...