Wheeler Stuckey, Inc. v. Southwestern Bell Telephone Co.

• Decision Date: 27 December 1967
• Docket Number: Civ. No. 67-155.
• Citation: 279 F. Supp. 712
• Parties: WHEELER STUCKEY, INC., a corporation, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant.
• Court: U.S. District Court — Western District of Oklahoma

279 F. Supp. 712

WHEELER STUCKEY, INC., a corporation, Plaintiff, v. SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Defendant.

Civ. No. 67-155.

United States District Court W. D. Oklahoma.

December 27, 1967.

Carroll Freeman, Paul Brown, of Brown, Verity & Brown, Oklahoma City, Okl., for plaintiff.

James A. DeBois, Charles G. Hollis, William L. Leonard, and Robert D. Allen, Oklahoma City, Okl., for defendant.

ORDER

EUBANKS, District Judge.

This cause comes on for consideration on the motion of defendant for summary judgment filed pursuant to the provisions of Rule 56(b) and (c) Federal Rules of Civil Procedure which motion states that the amended complaint and answers thereto and the affidavits on file show that the defendant is entitled to judgment as a matter of law.

From an examination of all pleadings on file and the various briefs and affidavits, it appears that this suit was originally filed in the State District Court of Oklahoma County, on March 17, 1967, alleging breach of contract. Actual and punitive damages are sought as a result of defendants' erroneously listing and omitting a part of plaintiff's address in the yellow and white pages of defendant's telephone directories and errors in the yellow page advertisement of said directories issued approximately April 1, 1965 and April 1, 1966. Claimant's Amended Complaint sets up two causes of action. For the error and omissions in listings in both the yellow and white pages of the directories plaintiff in Count One alleges that the actions of defendant in this regard were wrongful and grossly negligent with reference to its duties and obligations to plaintiff and that plaintiff is entitled to actual damages in the sum of $19,014.10 and exemplary damages in the sum of $25,000.00. For the errors and omissions in the advertising contracted for in the yellow pages of the directories plaintiff alleges in Count Two that the actions of the defendant with respect to its duties and obligations to plaintiff were wrongful and grossly negligent for which plaintiff is entitled to actual damages in the sum of $5,000.00 and exemplary damages in the sum of $10,000.00.

This case was removed to this Court by reason of diversity of citizenship and the recovery sought being in excess of $10,000.00.

By way of defense to the action and in support of the motion for summary judgment, the defendant alleges that any liability of the defendant for errors and omissions in the 1965 directory has been satisfied by an accord and satisfaction between the parties or, in the alternative, by a complete fulfillment of the liability imposed upon defendant for such errors under the contract between the parties. Defendant attaches an affidavit of Jim H. Hurst to the motion for summary judgment claiming an agreed settlement with plaintiff by a cancellation of all charges for advertising in the 1965 directory which defendant contends is the maximum allowed by the terms of the contract and general exchange tariff, rules and regulations applying to all customer's contracts, approved and on file with the Oklahoma Corporation Commission, the pertinent provisions of which read as follows:

"ERRORS—The Telephone Company's liability for damages arising from errors or omissions in the making up or printing of its directories or in accepting listings as presented by customers or prospective customers shall be limited to the amount of actual impairment of the customer's service, and in no event shall it exceed the amount paid for the service during the period covered by the directory in which the error or omission occurs."

The contract for directory advertising signed by plaintiff's agent contains the following provision:

"The applicant agrees that telephone company shall not be liable for errors or omissions in directory advertising beyond the amount paid for the item or items omitted or in which errors occurred, for the issue life of the directory involved."

Defendant further contends that exemplary damages for the breach of an obligation arising out of contract are not recoverable under the laws of Oklahoma and that plaintiff's claim for exemplary damages based upon alleged errors in plaintiff's...